[CCWG-Accountability] Regarding how bylaw changes are made

Fri Jan 2 14:09:36 UTC 2015

Dear Paul,

Dear All

I am coming back to reply to your kind responses on which we have major
agreement on the substance but different views on the approaches.

Let me just clarify my points that I raised many times and no answer was
give.

Currently, there is constitutional and legal mechanism for ICANN
accountability

On the other hand, there are some sort of optional accountability ( in form
of ATRT Recommendations and comments received from a limited number of
people ( Public Comments )

However, there is no mechanism at all to verify whether the
responsibilities entrusted to the Board have been properly held or
implemented.

Moreover, there are not any constitutional (legally adopted) by stakeholder
accountability terms and conditions.

We have bylaws crafted by board and under the Board authority to modify and
or update

In my view having more than 40 years of constitutional experience the Board
is no more than an executive entity

What they execute is AoC and Bylaws .The first one is designed to meet the
NTIA requirement .The second one is a quasi-unilateral provisions crafted
by Board and commented by a limited number of people ( public ) without
knowing that whether or not that limited number of people commented
represents the entire multistakeholders ( Civil Society, Private Sector,
Technical Community including Academics and last but not leased Governments
)

There is no separation of authority between those who establish policy/
Multistakeholders or their legally designated or elected representatives
with appropriate footing and those who implement policies ( ICANN) and in
particular the policy itself ( modified version of AoC plus modified Bylaws
) Every thing is mixed.

Currently ICANN is at least is responsible to NTIA for certain actions and
responsible to UNKNOWN Public for certain other actions .Once the
transition is done the entire responsibilities goes to that UNKNOWN Public
without having any authority to scrutinize actions implemented and no
authority to sanction those who did not implement the established policy

Now CCWG is making every effort to clarify the situation .We are at the
beginning of the process. In my view, that takes many months if not many
years to do so .

Now you and those supporting your approach consider that we need to ask the
Board in an upfront approach what they believe implementable and what
believe Un/ Non implementable

Allow me dear Paul to describe the scenarios.

We would wish to ask an entity whether or not that entity agrees that we a)
limit its authority) designating or establishing a mechanism for
overnighting their action and c) implement sanctions if they have not or
will not perform their duties  as prescribed by the Policy Terms and
condition

Now I am asking this simple question

Do you know any one or any entity wants that a) ,b) and C) individually and
or/ collectively be implemented in her or his regard?

In this world that we are living no one wants to be limited in authority
nor being held more responsible than  she or he is currently responsible
and more importantly no one which is not under any  sanctioning rules to be
under that rules

If the answer is yes, then we should not raise any question to them at all.

Moreover, does the legislating authority ask the executing authority which
kind of authority sphere or responsibility domain it wishes to perform its
function?

The answer is no

The legislator establishes the laws and rules and the executing entity MUST
implement that Law or Rule.

However, in devising those laws and Rules there is continuing dialogues
between the two CCWG and ICANN Board.

In summary, in view of the above, we should not raise any such questions to
the Board but continue to exchange views between the Board and CCWG ,as
appropriate

Kavouss

2015-01-02 9:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

> Dear Paul,
> Thank you very much in deed to kindly answering my question.
> Yes it helps ( your clarification) .
> I will revert to you in few hours
> Thanks again for your kind answer and analysis
> Kavouss
>
>
> Sent from my iPhone
>
> On 2 Jan 2015, at 00:08, Paul Rosenzweig <
> paul.rosenzweig at redbranchconsulting.com> wrote:
>
> Dear Kavouss
>
>
>
> Thank you for this question which is a very sensible one.  Let me try to
> clarify what I am trying to accomplish by my proposal.
>
>
>
> I am a complete and firm support of Board accountability to the
> Community.  That is 100% clear and I think you and I are in firm agreement
> on that.
>
>
>
> I may, however, not be clear about my method and process.  From my
> perspective the strongest accountability would be with a clear Bylaw
> limitation on ICANN functionality and a provision for an outside arbiter.
> Both of those changes would require Board approval.  I am not trying to
> subordinate the CCWG to the Board.   Far from it – what I am trying to do
> is find out as early in the process whether the Board is going to be
> willing to agree to subordinate itself to the Community through those
> mechanisms.
>
>
>
> So, I think the place where you may misunderstand me is at the very end of
> your note – where you say “why you want to limit CCWG to just follow those
> areas of accountability that Board wishes?”   I think you are assuming that
> if the Board said “no” to the questions I was asking that my reaction would
> be to say “oh … oh well.  That is OK.  If the Board won’t agree, we can’t
> do it.”
>
>
>
> My real reaction, in practice, would be exactly the opposite – I would
> urge the Community to dig in for an extended discussion with the Board and
> use my limited powers of persuasion to rally the community to demand that
> the Board changed its mind.  J  And I would probably urge CCWG to
> recommend those same things anyway – but at least we would do that knowing
> what was going to happen.
>
>
>
> Does that help?
>
> Regards
>
> Paul
>
>
>
> ***NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>
> 509 C St. NE
>
> Washington, DC 20002
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
>
>
> *From:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com
> <kavouss.arasteh at gmail.com>]
> *Sent:* Thursday, January 1, 2015 4:39 PM
> *To:* Paul Rosenzweig
> *Cc:* Seun Ojedeji; accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-Accountability] Regarding how bylaw changes are made
>
>
>
> Dear Paul,
>
> The way you commenting on the matter could have two different
> interprétations or leave two different impressions:
>
> A) You are a firm supporter of accountabilty process when we note your
> comments about Mathieu
>
> B) You wish to raise the question Under discussion to the Board asking
> what they wish to see from CCWG and what they do not see from CCWG .The
> latter interpretation ,in my view, seems to be subordinating CCWG to the
> Board in the sense that we just study, elaborate and recoomend those area
> of accountability that Board is comfortable with but not CCWG address the
> full picture, objectives, requiremnets of accountability.
>
> Pls find a coherence between interpretation A) and interpretation B) .In
> order words if you are really in favour of addressing the accountability in
> a fullflege scope why you want to limit CCWG to just follow those areas of
> accountability that Board wishes?
> Thank you very much to clarify your position.
>
> Best Regards
>
> Kavouss
>
>
>
> 2015-01-01 21:35 GMT+01:00 Paul Rosenzweig <
> paul.rosenzweig at redbranchconsulting.com>:
>
> Bruce is a wonderful man.  But we don’t need his opinion, we need a formal
> commitment from the Board.  That’s why we need to ask the question in an
> official manner.
>
>
>
> Indeed, I would posit that if the accountability working group tasked with
> ensuring accountability by ICANN is reluctant to even ask the Board a
> question then the communities capacity to actually reign in Board excess
> when/if it perceives such would be very limited.  If we are so unwilling to
> even ask a question, will we be willing to tell the Board “no.”
>
>
>
> In any event, if we choose not to ask this question, then the scope of WS1
> has just expanded to essentially include almost all oversight mechanisms we
> might conceivably want – which would, I think, be the wrong result.
>
>
>
> Warm regards
>
> Paul
>
>
>
> ***NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>
> 509 C St. NE
>
> Washington, DC 20002
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
>
>
> *From:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> *Sent:* Thursday, January 1, 2015 10:09 AM
> *To:* Seun Ojedeji
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-Accountability] Regarding how bylaw changes are made
>
>
>
> Dear All
>
> I agree to the term that no one should dictate the CCWG.
>
> Still why there is a need that we  raise any such question to the Board,
>
>  Bruce is quite active and requested to continue the Liaison
>
> Kavouss
>
>
>
>
>
> Sent from my iPhone
>
>
> On 1 Jan 2015, at 15:28, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:
>
> Hi Bruce,
>
> Thanks for this information, I will then suggest that this WG determine if
> those steps will indeed be appropriate for us especially since WS1 is more
> of a perquisite to transition. One would expect some adjustments on timing
> and wording rights to be made in the process, also board voting rights in
> this particular process may need to be agreed upon. It will not be
> encouraging to have  implementation stopped on the basis of no 2/3 board
> majority....time utilization is an important factor in all these. So the
> earlier we involve board (without having them dictate for us) the better.
>
> Regards
> sent from Google nexus 4
> kindly excuse brevity and typos.
>
> On 1 Jan 2015 04:55, "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
> wrote:
>
> Hello Seun,
>
> >>  I think writing to board to know how it will treat the WG outcome
> especially when some of it's implementations will require by-law
> modifications that further involve the ICANN community in decision making
> process may be useful.
>
> In terms of the process for making bylaws changes, changes have previously
> been made to accommodate recommendations from the review teams associated
> with the work of the Accountability and Transparency Review Teams (ATRT)
> https://www.icann.org/resources/pages/atrt-2012-02-25-en .
>
> Any archive of all previous versions of the bylaws is available here:
> https://www.icann.org/resources/pages/archive-bc-2012-02-25-en
>
> Based on our current practice I would expect the process to be as follows:
>
> - Board accepts recommendations from the CCWG
>
> - General Counsel's office prepares specific text to change in the bylaws
>
> - proposed bylaws changes are put out for public comment  (45 days)
>
> - Board then votes on the bylaws amendments  - a 2/3 majority of the Board
> is required to make a bylaw change
>
> If there is significant community comments against the proposed bylaws
> language - then a new draft of the bylaws would be put out for public
> comment that is consistent with the recommendations from the CCWG.
>
> Regards,
> Bruce Tonkin
>
>
>
>
>
>
>
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