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

Thu Jul 23 23:03:06 UTC 2015

I'm sorry to be joining this late, but fwiw my view is that I =would= in
fact die in the ditch for the certainty that ICANN is limited by the
restated bylaws mission that we are giving it.  That is so, irrespective of
who or what is giving the advice to do otherwise - an SO; an AC; or even at
the Board's own initiative.  Indeed, confining ICANN to bylaws compliance is
the sine qua non of our accountability effort. 

To that end, I could support Becky's compromise proposal since it retains
the core of that idea.  I would not support Thomas' suggestion that the
entire reference be dropped .

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com 

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From: Burr, Becky [mailto:Becky.Burr at neustar.biz] 
Sent: Thursday, July 23, 2015 4:29 PM
To: James Gannon; Thomas Rickert
Cc: wp2 at icann.org
Subject: Re: [WP2] this is the current text of the Mission Commitments and
Core Values language

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 <http://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  /
<mailto:becky.burr at neustar.biz> 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
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MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=GaZmg
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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  /
<mailto:becky.burr at neustar.biz> 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>   /  <mailto:becky.burr at neustar.biz>
becky.burr at neustar.biz / www.neustar.biz <http://www.neustar.biz> 

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