[WP2] this is the current text of the Mission Commitments and Core Values language

Thu Jul 23 20:29:00 UTC 2015

Yes

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz

From: James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>
Date: Thursday, July 23, 2015 at 4:27 PM
To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, Thomas Rickert <rickert at anwaelte.de<mailto:rickert at anwaelte.de>>
Cc: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, "wp2 at icann.org<mailto:wp2 at icann.org>" <wp2 at icann.org<mailto:wp2 at icann.org>>
Subject: RE: [WP2] this is the current text of the Mission Commitments and Core Values language

Just so I’m clear

The suggestion is to remove the chapeau from the ACs section, and insert a line into the IRP stating that it’s a valid cause to initiate an IRP?

-James

From: Burr, Becky [mailto:Becky.Burr at neustar.biz]
Sent: Thursday, July 23, 2015 9:25 PM
To: Thomas Rickert
Cc: Greg Shatan; James Gannon; wp2 at icann.org<mailto:wp2 at icann.org>
Subject: Re: [WP2] this is the current text of the Mission Commitments and Core Values language

I have a further compromise to offer – The IRP section should say that a materially affected party can bring a claim regarding bylaws violations, including ICANN’s decision to follow the recommendation of an SO or AC that requires it to violate the bylaws.

FWIW, I don’t think this is a theoretical issue

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

From: Thomas Rickert <rickert at anwaelte.de<mailto:rickert at anwaelte.de>>
Date: Thursday, July 23, 2015 at 3:45 PM
To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>
Cc: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>, "wp2 at icann.org<mailto:wp2 at icann.org>" <wp2 at icann.org<mailto:wp2 at icann.org>>
Subject: Re: [WP2] this is the current text of the Mission Commitments and Core Values language

I suggest we drop it.

Thomas
========
rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=GaZmgrQEJ4WzAwzxI1HaVxgZr5SOl-PqkDd3gZWorl8&s=vmsEfpc1MlECt1rNG653fHfPt8r7P5RydeuiSo-h5aI&e=>

PS - Sent from my cell. Please excuse typos and brevity.

Am 23.07.2015 um 20:41 schrieb Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>:
Actually, that is the Eberhard Lisse test

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Thursday, July 23, 2015 at 11:36 AM
To: James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>
Cc: "Perez Galindo, Rafael" <RPEREZGA at minetur.es<mailto:RPEREZGA at minetur.es>>, Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, "wp2 at icann.org<mailto:wp2 at icann.org>" <wp2 at icann.org<mailto:wp2 at icann.org>>
Subject: Re: [WP2] this is the current text of the Mission Commitments and Core Values language

All,

Actually, I have some sympathy for Jorge's argument -- that the insertion of this language regarding actions violating the Mission/Bylaws is intended to change the status quo.  At the least, it's a pointed reminder -- the kind that typically gets made after bad behavior ("Tenants are reminded not to leave garbage in the hallways" gets sent around my building only after some tenants start leaving garbage in the hallways.) So it can easily be seen as a warning and not merely a restatement of the status quo ("We see what you're trying to do.  Remember...")

Also, is there really a lack of clarity regarding the Board's authority or lack thereof to act outside its Mission or to violate the Bylaws?  Does this bare-bones statement really add clarity?  I'm not seeing that there is or that it does.

Further, while the statement is generally true, we are putting it in a specific place -- juxtaposing it with AC advice.  As such it would clearly be understood to be aimed at that advice and declaring a "line in the sand" with regard to such advice  The new suggestion of adding this to SO's only doubles down on this.

At best, this language is redundant. At worst, it is language that will have an unknown effect on current activity.

I would suggest applying the "Bart Boswinkel Test" in this case -- "Would you die in a ditch for it?"  In this case, my answer is no.

Greg

On Thu, Jul 23, 2015 at 11:21 AM, James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>> wrote:
And let me say we appreciate the input by Spain but I must say that I think many of us don’t understand the reasoning behind an objection to ratifying the status quo into the bylaws, and to Jorges point I would happily support placing the same caveat over the SO’s also.

-James

From: Perez Galindo, Rafael [mailto:RPEREZGA at minetur.es<mailto:RPEREZGA at minetur.es>]
Sent: Thursday, July 23, 2015 3:30 PM
To: Burr, Becky; James Gannon; wp2 at icann.org<mailto:wp2 at icann.org>
Subject: RE: [WP2] this is the current text of the Mission Commitments and Core Values language

The answer to your question is in my first mail, which clearly states that “This is without prejudice to the Board accepting or turning down GAC Advice”.

But let me ask you now your own question the other way around. Do you reckon that at this very moment in time the Board can violate its Bylaws if the GAC advises it to do so?

The answer is no (I guess). So, why do you insist on adding this new provision? It seems worrisome to me that you think that the Board could be right now (and the last 17 years) violating its own Bylaws under demand of the GAC, and you/we are at last fixing this huge problem, grasping the opportunity that the CCWG provides.

Best

PS Let me add here that I am only trying to understand and engaging as Spanish Gov rep., and I am not at all talking on behalf of other countries nor the GAC, which may or may not have more difficulty than me to support the changes put forward by the CCWG.

De: Burr, Becky [mailto:Becky.Burr at neustar.biz]
Enviado el: jueves, 23 de julio de 2015 15:16
Para: James Gannon; Perez Galindo, Rafael; wp2 at icann.org<mailto:wp2 at icann.org>
Asunto: Re: [WP2] this is the current text of the Mission Commitments and Core Values language
Importancia: Alta

More important Rafael, how does the language that prohibits ICANN from acting in violation of its bylaws reduce the authority of the GAC or the scope of GAC Advice?  The GAC may give Advice on any topic it wants, in any manner it likes.  The only limit is that ICANN cannot act on that Advice if it would involve violating the Bylaws.  Are you saying that you think ICANN can violate its bylaws if GAC advises it to do so?  That seems very worrisome to me.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932<tel:%2B%201.202.533.2932>  Mobile:  +1.202.352.6367<tel:%2B1.202.352.6367>  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

From: James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>
Date: Thursday, July 23, 2015 at 8:37 AM
To: "Perez Galindo, Rafael" <RPEREZGA at minetur.es<mailto:RPEREZGA at minetur.es>>, Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, "wp2 at icann.org<mailto:wp2 at icann.org>" <wp2 at icann.org<mailto:wp2 at icann.org>>
Subject: RE: [WP2] this is the current text of the Mission Commitments and Core Values language

To put this simply, the Board cannot act outside of its bylaws. No matter what the source of the reasoning for those actions.
We are merely reflecting that reality in the by-laws.

-James Gannon

From:wp2-bounces at icann.org<mailto:wp2-bounces at icann.org> [mailto:wp2-bounces at icann.org] On Behalf Of Perez Galindo, Rafael
Sent: Thursday, July 23, 2015 1:25 PM
To: Burr, Becky; wp2 at icann.org<mailto:wp2 at icann.org>
Subject: Re: [WP2] this is the current text of the Mission Commitments and Core Values language

Dear all,

I would like to again raise a strong concern on the proposed language establishing a general prohibition on ICANN acting on any advice of any advisory committee that would require ICANN to exceed its mission or violate its bylaws.

Managing the Internet system of unique identifiers in the public interest is the first and foremost mission of ICANN (sections 2 and 3 of the AoC and sections 3 and 4 of the AoI). On their part, governments are responsible for public policy and obliged to protect the general public interest (ICANN Bylaws Article I Section 2.11, Tunis Agenda para 68 and 69, and page 6 of the Net Mundial Statement). It is the GAC who brings the public policy perspective into ICANN.

The “global public interest” in ICANN’s context concerns not only the operational stability of the Internet. That is an essential issue, but there are more aspects to the many public interest issues actually encompassed by ICANN’s actions and policies. For instance, other important issues that go beyond the technical stability, such as intellectual property rights protection, privacy and law enforcement, cyber bullying, Public Interest Commitments regarding new gTLD, highly regulated sectors, and human rights, are at stake because they have an inherent impact on global public interest, and therefore can be subject to GAC’s Advice. In conclusion, GAC Advice should not be restricted to ICANN’s Bylaws.

This is without prejudice to the Board accepting or turning down GAC Advice.

Hence, we oppose this new proposal or any new one that restricts GACs scope, sets boundaries to the Advice it may give, or refrains it from exercising its role of protection of public interest in ICANN’s multistakeholder environment.

Best

Rafael

GAC_SPAIN

De:wp2-bounces at icann.org<mailto:wp2-bounces at icann.org> [mailto:wp2-bounces at icann.org] En nombre de Burr, Becky
Enviado el: jueves, 23 de julio de 2015 13:57
Para: wp2 at icann.org<mailto:wp2 at icann.org>
Asunto: [WP2] this is the current text of the Mission Commitments and Core Values language

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932<tel:%2B%201.202.533.2932>  Mobile:  +1.202.352.6367<tel:%2B1.202.352.6367>  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

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