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

Fri Feb 19 23:58:20 UTC 2016

My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages,  but I did not conclude that there was any agreement.

Alan
-- 
Sent from my mobile. Please excuse brevity and typos.

On February 19, 2016 6:46:47 PM EST, "Burr, Becky" <Becky.Burr at neustar.biz> wrote:
>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 Boardâ€™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 Boardâ€™s point is
>that the carve out – and hence the 3 SO/AC threshold â€€“ could apply
>where an IRP determines that the Boardâ€™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
>
>M: +1 (202) 329-9650
>
>VOIP: +1 (202) 738-1739
>
>Skype: paul.rosenzweig1066
>
>Link to my PGP
>Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_index.php-3Foption-3Dcom-5Fcontent-26view-3Darticle-26id-3D19-26Itemid-3D9&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=guusLuvtqD1j7nKqaUhBU6PnWk15AIgAcdJMrsbOcGU&s=5fE0pJdgqOaPJb-B-U2wph0XIexH6d3Ur-C_OPbXxsM&e=>
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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 â€œshould
>serve as a warning to us allâ€.
>
>
>
>Indeed, it emphasizes exactly why the GAC should not be able to block
>the communityâ€™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
>
>202-559-8750/Fax
>
>202-255-6172/cell
>
>
>
>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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>--
>Jordan Carter
>Chief Executive, InternetNZ
>
>+64-21-442-649 |
>jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
>
>Sent on the run, apologies for brevity
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