[CCWG-ACCT] The GAC made me do it

[Kavouss Arasteh]

Dear Beckie
Thank you again.
I did not say that at all.
Pls read my last e-mail and kindly reply if you so wish
The question is straight forwartd
Regards
Kavouss

2016-02-22 15:28 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
> 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
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>>
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>>
>
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