[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Thu Jan 7 22:56:24 UTC 2016

Hi Paul

I personally would not read that into it. In the past we agreed that IRP should be a means to avoid out-of-Mission-actions of the Board, irrespective of whether that was a consequence of GAC or some other SO or AC input.
But the question at stake on recommendation 5, as has been explained today, is simple: we are changing the mission; that has legal implications; before deciding on such changes we want to have an assesment of those implications...i.e. we want to be clear on what their impact is.
regards
Jorge

Von meinem iPhone gesendet

Am 07.01.2016 um 23:44 schrieb Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>>:

I’m sorry, Jorge.  I read the entire GAC submission … and I still don’t see an answer to Milton’s question.  I appreciate that you can’t go beyond what the GAC has said – but your purposeful ambiguity can’t be used at this point.

When the GAC says that you expect changes in the mission to “not constrain the Board from accepting and implementing GAC advice” I read that exactly as Milton does – as saying that the GAC thinks that the Board should accept GAC advice even if that advice might take it beyond its mission (either purposefully or inadervtently).

For the record, I think that suggestion is extremely dangerous as a matter of practice for the Board and also likely  to result in rejection of the IANA transition by the NTIA.  I think it is both manifest and self-evident that if GAC advice were to, hypothetically, be that the Board should engage in some activity that was beyond its mission (say capacity building or content censorship) then it would be appropriate and, indeed, mandatory, for the Board to reject that advice, precisely because it was to take action beyond the Mission.

Paul

Paul Rosenzweig
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From: Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch> [mailto:Jorge.Cancio at bakom.admin.ch]
Sent: Thursday, January 7, 2016 1:57 PM
To: kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Dear Kavouss

It wasn’t me who first proposed the question which was decided tob e further refined with the ICANN Legal. I was one of the supporters of that move. And what matters is that the CCWG had decided to move ahead with this.

Under that understanding the GAC included the first para I quoted: “The GAC notes that legal advice is being sought by the CCWG to clarify the
practical effect of this Recommendation, and believes this is appropriate.”

I feel the other elements in the GAC input (which you quote) could serve to formulate an appropriate legal question.

Perhaps the co-chairs would be willing to form a small group which, under their guidance, could formulate such a question, after receiving the feedback from ICANN Legal which was agreed to be requested.

Regards

Jorge

Von: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
Gesendet: Donnerstag, 7. Januar 2016 19:46
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>; Mathieu Weill <Mathieu.Weill at afnic.fr<mailto:Mathieu.Weill at afnic.fr>>; Thomas Rickert <rickert at anwaelte.de<mailto:rickert at anwaelte.de>>; Schneider Thomas BAKOM <Thomas.Schneider at bakom.admin.ch<mailto:Thomas.Schneider at bakom.admin.ch>>; León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>; Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>; Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Betreff: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Yes Jorge, it did and thanks for clarification.
But tell me hiow do you want that the matter beaddressed .
There are several provision in the ICANN Mission Staement, Nobady has asked that the legal Team ensure that those provisions would be fully implemented.
Here is the GAC STATMENT

Quote
"The GAC expects that any changes will not reduce the current role of the GAC in providing advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues (as provided in the current ByLaws). This includes issues such as consumer protection, the respect for fundamental rights and freedoms and law enforcement."
Unquote
What do you expect from the lawyers to acertain.? How they can acertain ? what is the assurance that whatever they acertain will be im plemented ?
Unless you put some text in the BALAWS which must be discussed and agreed by CCWG and put it to public comments
there is no legal certainty that the GAC statemnt be implemented
.
The second statemnet is
Quote
 "The GAC further expects that changes to ICANN’s mission and core values should not constrain the Board from accepting and implementing GAC advice. In addition, ICANN’s ability to enforce contractual obligations and act upon the public policy advice of the GAC should not be inadvertently impacted."
Unquote
The same questions are also appicable
I do not see any possible means to further pursue the matter unless some language to that effect be included in the Byélas which must be discussed and agreed by CCWG and put it to public comments
Regards
Kavouss

2016-01-07 18:54 GMT+01:00 Andrew Sullivan <ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>>:
On Thu, Jan 07, 2016 at 05:29:34PM +0000, Malcolm Hutty wrote:
> The trouble with your argument that we can just trust the Board to remain within the Mission when invited by the GAC to stray beyond it, without a mechanism to review their decisions, is that the same argument applies equally to the case of the Board acting inconsistently with the Bylaws in any other way, as it does to the specific case of the Board acting inconsistently with the Mission limitation.
>

But I'm not making that argument (hence the tripartite response).  But
re-reading my message, I certainly didn't make my point clear.  All I
was trying to say was that, given the empowered community and the new
accountability and so on, the case where the board will decide to
wander out of its areas of responsibilty seems lower.  And then, even
if it does, we have the other mechanisms in place.

Best regards,

A
--
Andrew Sullivan
ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>
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