[CCWG-ACCT] The GAC made me do it

Mon Feb 22 14:28:33 UTC 2016

Dear Beckie

In your reply to Jorge, you mentioned
Quote
*"The Boards concern is only about lowering the threshold to 3 in the
context of Board recall."*
Unquote
But that comments was made in relation with decrease  in the number of the
communities participating in the community empowerment from 5 to 4 as
results of GAC non participation due to the CARVE-OUT APPROACH.
That issue was generalized to cover the cases when the number of
decisionamaking communities decreases from 5 to 4,and the Board recall is
at the stake
The Board agreed to decrease the No. from 4 infavour to 3 in favour when
IRP is available but to retain the threshold of 4 in favour when IRP is not
available.
This was the question.
I do not know why a clear answer is not given to that suggestion.
Several people were in favour of the Board suggestion while several others
against that.
Why not we discuss that isuue tomorrow instead of turning around multiple
non relevant 7 irrelavant question to that suggestionRegards
Kavouss

2016-02-22 15:23 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

> Dear Beckie
>
> In your reply to Jorge, you mentioned
> Quote
> *"The Boards concern is only about lowering the threshold to 3 in the
> context of Board recall."*
> Unquote
> But that comments was made in relation with decrease  in the number of the
> communities participating in the community empowerment from 5 to 4 as
> results of GAC non participation due to the CARVE-OUT APPROACH.
> That issue was generalized to cover the cases when the number of
> decisional making communities decreases from 5 to 4
>
>
> 2016-02-22 15:08 GMT+01:00 <Jorge.Cancio at bakom.admin.ch>:
>
>> Dear Becky
>>
>> Thank you very much for your replies.
>>
>> However, I feel we should separate intentions from facts in such replies
>> and/or clarifications.
>>
>> In this regard, although only 0.1% (in your estimation) of the instances
>> the carve-out would apply are those where the Board decision is consistent
>> with the Bylaws, the fact is that the carve-out rule makes no such
>> distinction, correct?
>>
>> As to the participation of any other SO and AC on both tracks, I kindly
>> asked to confirm a fact (that any other SO or AC may fully participate,
>> with the only exception pf the GAC). I infer that you are confirming it,
>> right?
>>
>> (Reasons for doing so are something different and have been discussed and
>> no full agreement found to date if I dare say so.)
>>
>> thanks again and regards
>>
>> Jorge
>>
>> Von meinem iPhone gesendet
>>
>> Am 22.02.2016 um 14:54 schrieb Burr, Becky <Becky.Burr at neustar.biz
>> <mailto:Becky.Burr at neustar.biz>>:
>>
>> Responses in line
>>
>> 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<mailto:Jorge.Cancio at bakom.admin.ch>" <
>> Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
>> Date: Monday, February 22, 2016 at 8:13 AM
>> To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>,
>> Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:
>> kavouss.arasteh at gmail.com>>
>> Cc: "steve.crocker at icann.org<mailto:steve.crocker at icann.org>" <
>> steve.crocker at icann.org<mailto:steve.crocker at icann.org>>, "
>> icann-board at icann.org<mailto:icann-board at icann.org>" <
>> icann-board at icann.org<mailto:icann-board at icann.org>>, Accountability
>> Community <accountability-cross-community at icann.org<mailto:
>> accountability-cross-community at icann.org>>
>> Subject: AW: [CCWG-ACCT] The GAC made me do it
>>
>> 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?
>>
>> No, the carve out reflects the principle that we have discussed at great
>> length.  The GAC should not have the authority BOTH to force the Board to
>> the negotiating table at any time over any issues and to block community
>> challenge of the results of those Board/GAC negotiations.  The status of
>> GAC Advice differentiates it from any other kind of advice.  I suspect that
>> 99.9% of the time that challenge will involve an alleged bylaws violations,
>> but maybe not.
>>
>> 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.
>>
>> Correct, it bars the GAC from participating as a decision-maker in a
>> discussion of a decision to use one of the community powers in that
>> situation.
>>
>> 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?
>>
>> I’ve provided my views on this several times Jorge.  Please refer to my
>> email about why GAC Advice is different from a PDP.
>>
>> 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?
>>
>> The Boards concern is only about lowering the threshold to 3 in the
>> context of Board recall.
>>
>> 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<mailto:
>> Jorge.Cancio at bakom.admin.ch>>; kavouss.arasteh at gmail.com<mailto:
>> kavouss.arasteh at gmail.com>
>> Cc: steve.crocker at icann.org<mailto:steve.crocker at icann.org>;
>> icann-board at icann.org<mailto:icann-board at icann.org>;
>> accountability-cross-community at icann.org<mailto:
>> 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<mailto:Jorge.Cancio at bakom.admin.ch>" <
>> Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
>> Date: Monday, February 22, 2016 at 6:44 AM
>> To: Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:
>> kavouss.arasteh at gmail.com>>
>> Cc: "steve.crocker at icann.org<mailto:steve.crocker at icann.org>" <
>> steve.crocker at icann.org<mailto:steve.crocker at icann.org>>, "
>> icann-board at icann.org<mailto:icann-board at icann.org>" <
>> icann-board at icann.org<mailto:icann-board at icann.org>>, Accountability
>> Community <accountability-cross-community at icann.org<mailto:
>> 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]
>> Gesendet: Montag, 22. Februar 2016 12:41
>> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
>> Jorge.Cancio at bakom.admin.ch>>
>> Cc: Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>;
>> Steve Crocker <steve.crocker at icann.org<mailto:steve.crocker at icann.org>>;
>> accountability-cross-community at icann.org<mailto:
>> accountability-cross-community at icann.org>; Icann-board ICANN <
>> icann-board at icann.org<mailto: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<mailto:
>> 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> [mailto:
>> 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<mailto:steve.crocker at icann.org>>;
>> Accountability Community <accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>>
>> Cc: Icann-board ICANN <icann-board at icann.org<mailto: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
>>
>>
>>
>>
>>
>> _______________________________________________
>>
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org<mailto:
>> Accountability-Cross-Community at icann.org>
>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community<
>> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=XVtvuvhpcijNtwUTpzlMWx5DtxW5ZF_9xS4V4ATYIOw&s=LQQYd1TqTMcwy8i-BXekAWw5RpkRXN7uVMzD9pyLdPg&e=
>> >
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org<mailto:
>> Accountability-Cross-Community at icann.org>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community<
>> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=XVtvuvhpcijNtwUTpzlMWx5DtxW5ZF_9xS4V4ATYIOw&s=LQQYd1TqTMcwy8i-BXekAWw5RpkRXN7uVMzD9pyLdPg&e=
>> >
>>
>>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160222/51c9daa3/attachment-0001.html>