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

Burr, Becky Becky.Burr at neustar.biz
Fri Feb 19 23:46:47 UTC 2016


I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am.

First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point.

Following Bruce’s email, on our call on 16 February we agreed  that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws.  That’s quite clear in the transcript.  The transcript does not reflect agreement that an IRP must be brought in any or all cases.  Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be).

Hours following that call there were some questions and concerns on the list, so I posted the following email:

Brett,

My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles.  In that case, I think that an IRP is the most appropriate, least disruptive approach.  I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding?

If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).

Bruce – I think we need clarification from you as to the Board’s intent.  One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles.  This reading would – at least theoretically – materially narrow the spill the board power.  So I think Brett is right on the principle.  But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.

I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.

Becky

******************

Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal.  We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago.  The Board has indicated it is still unhappy.  And that provides the opportunity to unwind hard-won consensus.  No good deed goes unpunished.



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: Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>>
Date: Friday, February 19, 2016 at 5:17 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 Community <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>

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From: Phil Corwin [ 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

Suite 1050

Washington, DC 20004

202-559-8597/Direct

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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] 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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