[CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

Sat Dec 26 20:58:10 UTC 2015

Yes but the entire world composed of Nations, I do not think the GAC representing the world' nations . They representing the governments only.
Are you suggesting that the PI of all nations are identical?
I do not believe so thus it would be r trembly difficult to define GPI.
Regards
Kavouss     

Sent from my iPhone

> On 26 Dec 2015, at 19:30, Avri Doria <avri at acm.org> wrote:
> 
> 
> Never said it was limited to human rights.  Said it needed to be rooted
> in human rights.
> And yes, it is interpreteddiversity of stakeholders, in ICANN's
> case, in the context of their concerns and within ICANN's global mission.
> 
> National PI is something that is brought in within the GAC and will be
> part of their consensus advice.
> If we ignore GPI in the wider sense, as so many seem to wish to do, we
> end up in a situation where the only people talking about public
> interest are the members states of the GAC from their national
> perspectives.  That would not seem optimum to me
> 
> avri
> 
>> On 26-Dec-15 12:25, Kavouss Arasteh wrote:
>> Avri,
>> GPI is not limited to HR.
>> Any description of GPI will be subject to challenge due to the fact that GPI is a cumulative of national/nation PI which varies   From country to country snd culture to culture.
>> Regards
>> Kavousd        
>> 
>> Sent from my iPhone
>> 
>>> On 26 Dec 2015, at 16:25, Avri Doria <avri at acm.org> wrote:
>>> 
>>> 
>>> 
>>> I think what you are expressing in your two dichotomies is a perversion
>>> of a the national understanding of public interest.  This is not Global
>>> Public Interest (GPI), but national prejudice and politics.
>>> 
>>> We are talking about a Global Public Interest that is always rooted in
>>> the Human Rights that have been agreed to by most all nations, and that
>>> are as applicable on the Internet as off.  In CASE 1, the fact that
>>> nation states infringe these rights and incite their people to do so,
>>> does not determine these action as being in Global Public Interest.
>>> 
>>> As with most thought experiments, the issue is misdirected. The problem
>>> is not understanding the source of national actions. The problem is in
>>> understanding what the GPI might be in the global ICANN context.  I
>>> agree with those who argue that it can't be fully predicted a-priori in
>>> some academic exercise.  It is something that needs to be discovered
>>> through our bottom-up processes that not only takes the bottom -up
>>> understanding into account but deals with their diversity and always has
>>> at its root ICANN principles, including adherence to International legal
>>> instruments including human rights.  The GPI is always in the process of
>>> further discovery in each new circumstance and issue.
>>> 
>>> This process based understanding does not mean we can, therefore, ignore
>>> GPI.  I disagree with all those who argue that GPI should be put aside
>>> because it is hard to figure out.  Our policy process has to embody  the
>>> process of discovering the GPI in the context and mission of ICANN in
>>> each case. I agree that we will never know the all of GPI in any finite
>>> sense, but that does not mean it can be ignored.  We have to constantly
>>> work to understand the GPI as we discuss policy.  This discovery has to
>>> be a central tenet in all ICANN processes.
>>> 
>>> It also does not mean that the Board gets to decide on GPI.  Yes, their
>>> 'end of the day' vote and ensuing bottom-up negotiations are are part of
>>> developing that understanding, but they are not the ones to determine
>>> whether something is or is not in the GPI.  They may question whether
>>> something is and send the question back for further discussion, but the
>>> idea that the Board could make a decision that something is not in the
>>> GPI is absurd.  The absurdity is vividly expressed when we read that
>>> they are capable of stating that human rights might not be in the GPI,
>>> when human rights are first and foremost the principles on which GPI
>>> must be based.  In your examples case 1, is definitely a case where
>>> human rights is a determinant that option 1B is a crime not GPI.  In the
>>> second example, the issue is one that is still in the process of a the
>>> tussle among several human rights and the discussion goes on. The cases
>>> pretend to be parallel, but they aren't.  In Case 1, no one is harmed by
>>> someone's sexual preference or gender expression, and persecution of
>>> types of people is never in keeping with human rights standards.  In
>>> Case 2, the question is of the harm that may or not be caused by words
>>> is the basis of the determination.
>>> 
>>> The process of discovering the GPI must be part of our work at ICANN.
>>> 
>>> avri
>>> 
>>>> On 26-Dec-15 07:48, Nigel Roberts wrote:
>>>> This might be a minority position, but from my perspective, it is, by
>>>> definition, impossible to define the global public interest.
>>>> 
>>>> Public interest (except in an academic sense) is defined by what the
>>>> relevant public authority thinks is the public interest. And the
>>>> relevant public authority is a construct of the nation-state.
>>>> 
>>>> As a gedankenexperiemnt, perhaps you might just take a moment to agree
>>>> or disagree with the following statements :-
>>>> 
>>>> 1a. It is in the public interest that LGBT people have the same rights
>>>> and obligations as everyone else, and that anyone seeking to prevent
>>>> this objective should face legal sanctions
>>>> 
>>>> 1b. It is in the public interest that deviant behaviour, as exhibited
>>>> by LGBT people is severely punished with legal sanctions.
>>>> 
>>>> 
>>>> 2a. It is in the public interest that anyone be allowed to say
>>>> anything they like, short of saying things which cause actual harm
>>>> (such as falsely shouting 'fire' in a crowded theatre).
>>>> 
>>>> 2b. It is in the public interest in a democratic society that there be
>>>> some restrictions on what you can say or publish, particularly where
>>>> the speech or publication argues in favour of e use of non-democratic
>>>> or violent means to overthrow the constitutional order, or is said by
>>>> certain organisations which have committed to such non-democratic
>>>> overthrow.
>>>> 
>>>> In some nations, 1b is the correct definition of the public interest,
>>>> while 1a is anathema.
>>>> 
>>>> In some nations 2a is the correct definition of the public interest,
>>>> whilst in a number of Western nations, that is 2b.
>>>> 
>>>> (You can imagine I have particular countries in mind in the examples
>>>> above, but it's not necessary to name them)
>>>> 
>>>> HOWEVER Regardless of the view of your society takes is of the above
>>>> dichotomies, it is submitted that is the clearest possible example
>>>> that a 'global public interest' will remain unsusceptible to
>>>> definition, and any attempt to do so, is doomed to failure.
>>>> 
>>>> 
>>>> 
>>>> Nigel
>>>> 
>>>> 
>>>> 
>>>> 
>>>> 
>>>> 
>>>>> On 26/12/15 11:46, Edward Morris wrote:
>>>>> Hello Bruce,
>>>>> Thanks for this summary of the Board's concerns regarding Inspection
>>>>> rights, a restatement of the view offered by the Board in it's 14
>>>>> December 2015 public response to the CCWG work stream one Proposal
>>>>> of  30 November 2015.
>>>>> Upon reading it would appear to me that this Board response did not
>>>> take
>>>>> into account in it's comment the 10 December 2015 memo concerning
>>>>> Inspection proffered by the CCWG independent counsel (copy attached).
>>>>> I'm very supportive of and excited about the general  way forward
>>>>> proposed by Counsel, notwithstanding that there are still several
>>>>> options for the community to consider within the context of the
>>>> memorandum.
>>>>> Am I correct in my supposition that the contents of the aforementioned
>>>>> memo were not considered during the Board's deliberation on Inspection
>>>>> that resulted in the position taken and published in the Board's 14
>>>>> December 2015 public comment?
>>>>> Kind Regards,
>>>>> Edward Morris
>>>> ------------------------------------------------------------------------
>>>>> *From*: "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
>>>>> *Sent*: Thursday, December 24, 2015 11:27 AM
>>>>> *To*: "Accountability Cross Community"
>>>>> <accountability-cross-community at icann.org>
>>>>> *Subject*: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third
>>>>> CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations
>>>>> Hello James,
>>>>> 
>>>>> 
>>>>>>> With respect Bruce that is a total misleading description of the
>>>> transparency proposals that are in the CCWG’s 3rd Draft, the
>>>> requirements that the CCWG have identified are based entirely on the
>>>> existing California corporations code that hundreds if not thousands
>>>> of non-profits both smaller and larger than ICANN adhere to on a daily
>>>> basis without having a large staffing contingent to support that
>>>> requirement.
>>>>> I don’t believe I provided a description of the transparency
>>>> proposal in
>>>>> the CCWG 3rd draft. I was responding to the general allegation that the
>>>>> Board did not support transparency.
>>>>> 
>>>>> Our formal written feedback was provided in the context of the
>>>>> California corporations code. The law relating to access to records is
>>>>> quite brief, we have provided concrete processes implementing this
>>>> power
>>>>> on the context of ICANN. We expect the processes set out in the bylaws
>>>>> will ultimately be adjudicated by the IRP process - and not a
>>>> California
>>>>> court - so more detail on the processes is needed.
>>>>> 
>>>>> We have actually gone beyond the bare minimum requirements in the
>>>>> corporations code - which relate to minutes of meetings and accounting
>>>>> records. We already provide much of that information publicly - so
>>>> there
>>>>> is no need to visit the office and review minutes for example. We also
>>>>> provide quarterly financial reports. Accounting records on their own
>>>>> provide information on income received and suppliers paid. It doesn't
>>>>> always give you context.
>>>>> 
>>>>> 
>>>>> We stated:
>>>>> 
>>>>> The Board supports a well-defined right of inspection of accounting
>>>>> records and minutes of meetings in support of the community powers.
>>>>> 
>>>>> The Board proposes that the inspection right be framed in the Bylaws as
>>>>> follows: The community will have a right to seek accounting records and
>>>>> minutes of meetings that are related to the exercise of the Community
>>>>> Powers. To obtain records, the community should have a minimum of two
>>>>> SOs/ACs seeking a Community Forum on the topic, and no fewer than three
>>>>> SOs/ACs supporting a request for the records. The Sole Designator
>>>> should
>>>>> have the power to enforce ICANN’s failure to abide by the records
>>>>> request, following an escalation path (as appropriate) of
>>>>> reconsideration, Ombudsman and ultimately IRP; the right to the records
>>>>> rests in the Empowered Community.
>>>>> 
>>>>> This formation achieves a few objectives. First, similar to the use of
>>>>> inspection rights in the membership structure, this gives the community
>>>>> special access to records that are tethered to the powers that the
>>>>> community holds. Second, it reinforces the Empowered Community as
>>>> having
>>>>> interests in the records, as opposed to making the Sole Designator as a
>>>>> separate power structure within ICANN. Third, because the inspection
>>>>> rights are tethered to the community powers, the Sole Designator is not
>>>>> being asked to take on inspection or investigatory powers that are
>>>>> beyond its enforcement role. With these limitations, the Board would
>>>>> support the inclusion of inspection rights in the Fundamental Bylaws.
>>>>> 
>>>>> New Commitment to Investigations
>>>>> 
>>>>> Separately, the Board understands that there could be areas where the
>>>>> community might wish to have additional power in requiring – and having
>>>>> transparency into – investigations of potential fraud or financial
>>>>> mismanagement in ICANN. To address these concerns, the Board supports
>>>>> the development of the following inspection or audit process: Upon
>>>> three
>>>>> SOs/ACs coming together to identify a perceived issue with fraud or
>>>>> mismanagement of ICANN resources, ICANN will retain a third-party,
>>>>> independent firm (acceptable to the SOs/ACs that have identified the
>>>>> issue) to undertake a specified audit to investigate that issue. The
>>>>> audit report will be made public, and the ICANN Board will be required
>>>>> to consider the recommendations and findings of that report. The
>>>>> investigatory process should first be developed outside of the ICANN
>>>>> Bylaws, and can be incorporated into the Bylaws when appropriate.
>>>>> 
>>>>> Allowing for the right to access specific documents related to the
>>>>> community powers, as well as a new ability to trigger third-party
>>>>> investigations, addresses the community concerns of greater access to
>>>>> documents and additional accountability in operations. These two
>>>>> companion processes provide a clear line between information that is
>>>>> appropriate for general public release (transparency), and information
>>>>> that may be confidential or proprietary but necessary to review if
>>>> there
>>>>> are concerns raised about management practices.
>>>>> 
>>>>> 
>>>>> Regards,
>>>>> Bruce Tonkin
>>>>> 
>>>>> 
>>>>> _______________________________________________
>>>>> Accountability-Cross-Community mailing list
>>>>> Accountability-Cross-Community at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>> 
>>>>> 
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