[CCWG-ACCT] The GAC made me do it

Mon Feb 22 13:46:19 UTC 2016

Dear Jorge,
WAIT FOR BECKIE'S REPLY.

2016-02-22 14:37 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

> Beckie
> You are the architect of IRP
> You are the artchitect of Carve-out
> What you mentioned does need clarification
> What you said is inconsistant with Rec.2
> Please clarify which option of Rec.2 you referring?
> TRegards
> Kavouss
>
> 2016-02-22 14:13 GMT+01:00 <Jorge.Cancio at bakom.admin.ch>:
>
>> Dear Kavouss, dear Becky
>>
>>
>>
>> Thanks so much!
>>
>>
>>
>> From the responses I received, it seems that the carve-out applies
>> generally whenever there is a Board decision to implement GAC Advice, even
>> when that Board decision is deemed by the IRP to be perfectly consistent
>> with ICANN Bylaws.
>>
>>
>>
>> Hence, we should be clear that there is no relation between the carve-out
>> and the consistency with the Bylaws, right? Reasons for bringing such a
>> challenge can be purely based on different interests, right?
>>
>>
>>
>> It is just a rule that excludes the GAC from (a decisional role in) any
>> community decision where a Board decision to implement GAC Advice is at
>> stake.
>>
>>
>>
>> A further question: if such a Board decision is based both on a SO
>> recommendation, an ALAC advice and a GAC Advice, the only entity to be
>> excluded from a community process would be the GAC, right? But the other SO
>> and AC would participate on both tracks, correct?
>>
>>
>>
>> As to the threshold question: it merely has to do with the Board recall,
>> but does not affect any of the mentioned characteristics of the carve-out,
>> correct?
>>
>>
>>
>> Thanks very much for any further guidance
>>
>>
>>
>> Best
>>
>>
>>
>> Jorge
>>
>>
>>
>>
>>
>> *Von:* Burr, Becky [mailto:Becky.Burr at neustar.biz]
>> *Gesendet:* Montag, 22. Februar 2016 14:00
>> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>;
>> kavouss.arasteh at gmail.com
>> *Cc:* steve.crocker at icann.org; icann-board at icann.org;
>> accountability-cross-community at icann.org
>>
>> *Betreff:* Re: [CCWG-ACCT] The GAC made me do it
>>
>>
>>
>> Jorge-
>>
>>
>>
>> The carve out would apply but you would need 4 SO/AC s to recall the
>> Board.
>>
>>
>>
>> Becky
>>
>>
>>
>> *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: *"Jorge.Cancio at bakom.admin.ch" <Jorge.Cancio at bakom.admin.ch>
>> *Date: *Monday, February 22, 2016 at 6:44 AM
>> *To: *Kavouss Arasteh <kavouss.arasteh at gmail.com>
>> *Cc: *"steve.crocker at icann.org" <steve.crocker at icann.org>, "
>> icann-board at icann.org" <icann-board at icann.org>, Accountability Community
>> <accountability-cross-community at icann.org>
>> *Subject: *Re: [CCWG-ACCT] The GAC made me do it
>>
>>
>>
>> Dear Kavouss
>>
>>
>>
>> Thanks for the clarification.
>>
>>
>>
>> Hence, do I understand correctly that the carve-out (exclusion of GAC as
>> decisional participant) applies also if the Board decision to implement GAC
>> Advice has been found by the IRP to be perfectly consistent with the Bylaws?
>>
>>
>>
>> Thanks for your guidance
>>
>>
>>
>> Regards
>>
>>
>>
>> Jorge
>>
>>
>>
>> *Von:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com
>> <kavouss.arasteh at gmail.com>]
>> *Gesendet:* Montag, 22. Februar 2016 12:41
>> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
>> *Cc:* Mueller, Milton L <milton at gatech.edu>; Steve Crocker <
>> steve.crocker at icann.org>; accountability-cross-community at icann.org;
>> Icann-board ICANN <icann-board at icann.org>
>> *Betreff:* Re: [CCWG-ACCT] The GAC made me do it
>>
>>
>>
>> Dear Jorge,
>>
>> You are right
>>
>> The carve out applies to all cases either in application of IRP or in the
>> absence of IRP
>>
>> For the first Board's agreed with reduced threshold from 4 to 3 for
>> Board's Spill
>>
>> For the second the Board wishes that the 4 SO/AC threshold applies .
>>
>> Some people in the community like me fully supportting the Board's views.
>>
>> Some others are against
>>
>> This is one of the issue that must be resolved tomorrow
>>
>> Regards
>>
>> Kavouss
>>
>>
>>
>> 2016-02-22 12:25 GMT+01:00 <Jorge.Cancio at bakom.admin.ch>:
>>
>> Dear all
>>
>>
>>
>> From this email by Milton it seems that some (as Milton) are
>> understanding that the carve-out only would apply if the Board decision to
>> implement GAC Advice is found (by the IRP I guess) to be inconsistent with
>> the Bylaws.
>>
>>
>>
>> I have been away for one week, but I feel that the carve-out was meant to
>> apply *generally* to situations where there is Board implementation of
>> GAC Advice...
>>
>>
>>
>> Could someone kindly clarify the status?
>>
>>
>>
>> Best regards
>>
>>
>>
>> Jorge
>>
>>
>>
>> -----Ursprüngliche Nachricht-----
>> Von: accountability-cross-community-bounces at icann.org [mailto:
>> accountability-cross-community-bounces at icann.org] Im Auftrag von
>> Mueller, Milton L
>> Gesendet: Sonntag, 21. Februar 2016 23:34
>> An: Steve Crocker <steve.crocker at icann.org>; Accountability Community <
>> accountability-cross-community at icann.org>
>> Cc: Icann-board ICANN <icann-board at icann.org>
>> Betreff: Re: [CCWG-ACCT] The GAC made me do it
>>
>>
>>
>> Steve
>>
>> I think Andrew got the issue exactly right. I do not see how your answer
>> even engages with his argument, which is that nearly all of the community
>> has agreed that when board actions are challenged for being out of mission
>> by following GAC advice, that the GAC should not be in a position to rule
>> on that.
>>
>>
>>
>> Claiming that the GAC does not have "extraordinary power" does not answer
>> Andrew's argument. Whether the GAC has extraordinary power or not, if it
>> advises you (the board) to do something that the rest of the community
>> thinks is outside of the bounds of the bylaws (which it has a demonstrated
>> tendency to do) the GAC should not be a decisional member of the empowered
>> community that decides whether we get to challenge that action.
>>
>>
>>
>> From that premise on, it is all arithmetic, as Andrew showed:
>>
>>
>>
>> > > This is a choice entirely within the GAC's power.  It must choose.
>>
>> > > If it chooses to be board-advisor-GAC, then it is in effect choosing
>>
>> > > that it prefers that mode of operation to being part of the wider
>>
>> > > Empowered Community mechanism.  In effect, a GAC choice can reduce
>>
>> > > the possible actors in the Empowered Community to four.  Otherwise,
>>
>> > > the GAC is in a position to insist on advice it gave being
>>
>> > > considered first by the board, and then that the GAC can also
>>
>> > > participate in the judgement of the Board's actions.  That's the
>>
>> > > very "two bites" problem that we were trying to solve.  I believe
>>
>> > > that in most organizations (including many governments), it would be
>>
>> > > regarded as surprising that a participant in the to-be-judged action
>> also gets to be one of the judges.
>>
>>
>>
>> You have not refuted this, as I said before you have not even engaged
>> with this.
>>
>> This increases my suspicion that the board's position is based on a
>> political calculus, not on good governance or accountability criteria.
>>
>>
>>
>> Further, it is clear from the reaction you have gotten that the board is
>> not proposing a "friendly amendment." In these rules of procedure, a
>> friendly amendment has to be accepted by the group that proposed it, and
>> clearly it is not.
>>
>>
>>
>> I am deeply disturbed by the board upsetting a consensual compromise, and
>> a very difficult one, for the third time in this process. I wonder if you
>> have any appreciation of the potential costs of this, particularly when it
>> involves an issue as sensitive as the role of national governments in
>> ICANN.
>>
>>
>>
>> Dr. Milton L. Mueller
>>
>> Professor, School of Public Policy
>>
>> Georgia Institute of Technology
>>
>>
>>
>>
>>
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