[CCWG-ACCT] what the Board is objecting to here -

Robin Gross robin at ipjustice.org
Fri Feb 19 23:10:59 UTC 2016 

My memory on this issue matches Brett’s, outlined below.

Thanks,
Robin

> On Feb 19, 2016, at 2:49 PM, Schaefer, Brett <Brett.Schaefer at heritage.org> wrote:
> 
> 
> Alan and Fadi,
>  
> That is incorrect, the proposal circulated on the lists two weeks ago and debated on the calls shortly thereafter – as Becky can attest to – were for reduced thresholds under the GAC carve-out for Board recall under all possibilities. There was no caveat or restriction.
>  
> The issue of the IRP requirement and the 4 SOAC approval for Board recall under the GAC carve-out were raised by the Board in the aftermath of those calls.
>  
> Best,
>  
> Brett
>  
> 
> 
> Brett Schaefer
> Jay Kingham Senior Research Fellow in International Regulatory Affairs
> Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
> The Heritage Foundation
> 214 Massachusetts Avenue, NE
> Washington, DC 20002
> 202-608-6097
> heritage.org <http://heritage.org/>
> 
> 
> From: accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>] On Behalf Of Fadi Chehade
> Sent: Friday, February 19, 2016 5:34 PM
> To: accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] what the Board is objecting to here -
>  
>  
> Alan, that is my understanding as well.  
>  
> There is a solution to this dialog that can maintain the fundamental balance of the multistakeholder model
>  
> When the IRP rules that the Board has violated the Bylaws/Articles in accepting GAC advice, the threshold can be 3.
> When there is no IRP ruling, or no allegation that the Board has violated the Bylaws, keep the threshold at the same level that it was set in the prior versions of the report – 4.
>  
> Fadi
>  
> From: Alan Greenberg <alan.greenberg at mcgill.ca <mailto:alan.greenberg at mcgill.ca>>
> Date: Friday, February 19, 2016 at 2:17 PM
> To: Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>>, Samantha Eisner <samantha.eisner at icann.org <mailto:samantha.eisner at icann.org>>
> Cc: Thomas Rickert <thomas at rickert.net <mailto:thomas at rickert.net>>, "accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] what the Board is objecting to here -
>  
> The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions:
> 
> (1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or 
> 
> (2) if the IRP is not available to challenge the Board action in question. 
> 
> My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole.
> 
> Alan
> 
> At 19/02/2016 04:38 PM, Jordan Carter wrote:
> 
> Ok. If Steve Crocker could also confirm that his understanding is the same, that would be very helpful.
> 
> 
> On the overall point - the board has already made its view on that question clear. Steve's email doesn't reference the GPI test that is the only basis the Board has set out to object to ccwg proposals, and which it has invoked prior.
> 
> The intervention thus has two effects. It is a source of uncertainty, because it isn't clear. And it is a source of delay, because the intent and the group's response to it has to be clarified.
> 
> Once again, we face a further delay thanks to the way the ICANN board has chosen to behave. I guess I wish I could say I was surprised, or disappointed - but that's long gone. I'm just confused: what is the end game here? 
> 
> If anyone knows, please feel free to share.
> 
> Jordan 
> 
> On Saturday, 20 February 2016, Samantha Eisner < Samantha.Eisner at icann.org <mailto:Samantha.Eisner at icann.org>> wrote:
> Hi Becky -
> 
> There was another thread on this from Alan, but wanted to confirm in this thread too that this is the correct understanding of the Board’s concern.
> 
> Thanks,
> Sam
> 
> From: <accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Burr, Becky" <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz>>
> Date: Friday, February 19, 2016 at 10:55 AM
> To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com>>, 'Phil Corwin' <psc at vlaw-dc.com <mailto:psc at vlaw-dc.com>>, 'Greg Shatan' <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>>, 'Kavouss Arasteh' <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com>>
> Cc: 'Thomas Rickert' <thomas at rickert.net <mailto:thomas at rickert.net>>, "accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>>
> Subject: [CCWG-ACCT] what the Board is objecting to here -
> 
> Just for the sake of absolute precision, I think the Board’s point is that the carve out – and hence the 3 SO/AC threshold  “ could apply where an IRP determines that the Board’s actions in response to GAC Advice contravene the Bylaws.  I think what worries the Board is that the notion that the Board could be recalled by 3 SO/AC combination for action that DOES NOT contravene the Bylaws.
> 
> J. Beckwith Burr
> Neustar, Inc./Deputy General Counsel & Chief Privacy Officer
> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
> Office:+1.202.533.2932  Mobile:+1.202.352.6367 /neustar.biz <http://www.neustar.biz/>
> From: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com>>
> Date: Friday, February 19, 2016 at 1:15 PM
> To: 'Phil Corwin' <psc at vlaw-dc.com <mailto:psc at vlaw-dc.com>>, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>>, Kavouss Arasteh <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com>>
> Cc: 'Thomas Rickert' <thomas at rickert.net <mailto:thomas at rickert.net>>, Accountability Community <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] Carve-out issue
> 
> +1
> 
>  
> 
> Paul Rosenzweig
> 
> paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com>
> O: +1 (202) 547-0660
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> M: +1 (202) 329-9650
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> VOIP: +1 (202) 738-1739
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>  
> 
> From: Phil Corwin [ mailto:psc at vlaw-dc.com <mailto:psc at vlaw-dc.com>]
> Sent: Friday, February 19, 2016 12:52 PM
> To: Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>>; Kavouss Arasteh <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com>>
> Cc: Thomas Rickert <thomas at rickert.net <mailto:thomas at rickert.net>>; accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] Carve-out issue
> 
>  
> 
> Greg:
> 
>  
> 
> Assuming that the new Board position is indeed a response to a minority position of a few GAC members, I am in full agreement that it “should serve as a warning to us all”.
> 
>  
> 
> Indeed, it emphasizes exactly why the GAC should not be able to block the community’s ability to hold the Board accountable for implementing GAC consensus advice that the community feels is outside the scope of the Bylaws or Mission Statement.
> 
>  
> 
> Best. Philip
> 
>  
> 
> Philip S. Corwin, Founding Principal
> 
> Virtualaw LLC
> 
> 1155 F Street, NW
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>  
> 
> Twitter: @VlawDC
> 
>  
> 
> "Luck is the residue of design" -- Branch Rickey
> 
>  
> 
> From:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org> [ mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>] On Behalf Of Greg Shatan
> Sent: Friday, February 19, 2016 12:38 PM
> To: Kavouss Arasteh
> Cc: accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>; Thomas Rickert
> Subject: Re: [CCWG-ACCT] Carve-out issue
> 
>  
> 
> It is alarming that a few GAC members could seek to undo a carefully balanced compromise.  And even more alarming that those few GAC members could so quickly trigger a Board intervention.
> 
>  
> 
> The carve-out is balanced against the concerns of other stakeholders with regard to (i) the proposed supermajority threshold for Board rejection of GAC advice and (ii) the GAC's overall role as a decisional participant in the Empowered Community, rather than its traditional advisory capacity.  The carve-out itself underwent a compromise, requiring the Community to go through an IRP before exercising the power of Board recall.
> 
>  
> 
> When one pulls on one end of a compromise, the other end tends to move as well.
> 
>  
> 
> Do other stakeholders need to send countervailing warnings?  Will the Board respond as quickly? Do we want to find out?
> 
>  
> 
> I think this extraordinary response to a minority report should serve as a warning to us all.
> 
>  
> 
> Greg
> 
>  
> 
>  
> 
>  
> 
> On Fri, Feb 19, 2016 at 12:22 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com>> wrote:
> 
> Please kindly confirm and acknowledge recipt of wanrning message
> 
> Regards
> 
> Kavouss
> 
>  
> 
> 2016-02-19 18:10 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com>>:
> 
> Dear Co-chairs
> 
> You have seen the concerns of 11 Governments which would certainly be echoed by other gouvernements soon.
> 
> This is an ALARMING SITUATION ,
> 
> If there is no consensus means there is no consensus ,
> 
> We could not favour one community in disfavouring another one.
> 
> Perhaps it was hoped that the people could join the consensus but it does not come up as such
> 
> If a mistake has occurred we should repair it .
> 
> Howmany times we have changed our concept from Voluntry Model to Sole member from Sole Member to Sole designator .
> 
> THE ISSUE IS CRITICAL
> 
> Pls do not rush to publish the report as being sent to the chartering organization just hold on for few more days untill your 26 feb. calls
> 
> Try to find out some solution including going back to the initial stage of REC. 11 without no carve-out and with two options of simple majority and 2/3 theshold  and rediscuss that.
> 
> You can not ignor the growing concerns of several governments and would certainly be further grown up soon
> 
> Regards
> 
> Kavouss
> 
>  
> 
> 
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> -- 
> Jordan Carter
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> +64-21-442-649 | jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
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