[CCWG-Accountability] Regarding how bylaw changes are made

Tue Jan 6 12:22:44 UTC 2015

Dear all,

In line with the reactions from James and Eberhard:
In my opinion, these questions as well as the ones that Paul formulated earlier, have very little to do with improving ICANN’s accountability. Rather, the implementations of the measures suggested by the questions limit ICANN’s scope and tie the board with a very short leash. Making accountability less relevant, because of the direct control and very narrow scope. It’s one way of solving the issues at hand, but not one that is in the interests of the community in the long run. I also think it’s not realistic to assume that this is an option.

I understood our job to be in the area of advising on improving existing and possibly introducing new accountability processes and procedures. Not in the area of advising on the scope of ICANN. However, if adequate accountability is assured, unwanted scope creep is impossible.

Cheers,

Roelof Meijer

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From: David Maher <dmaher at pir.org<mailto:dmaher at pir.org>>
Date: zaterdag 3 januari 2015 19:30
To: James Bladel <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>, Avri Doria <avri at acm.org<mailto:avri at acm.org>>
Cc: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-Accountability] Regarding how bylaw changes are made

Every time a corporation executes a contract, it assumes obligations and liabilities. If the board of the corporation believes in good faith that the contract serves the interests of the corporation (and the contract is not in violation of the corporate charter and bylaws), this is not necessarily an abdication of its fiduciary responsibility.
The ICANN Board should be able to give this WG answers to the following questions regarding  its willingness to accept contract terms along the lines of:
1. Will ICANN agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that are not supported by a demonstrated consensus among affected parties?
2. Will ICANN agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that do not relate to issues the uniform resolution of which is necessary to assure sound operation of the domain name system?
3. Will ICANN agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that relate to online content or to online behavior that does not threaten the sound operation of the domain name system?
4. Will ICANN agree that any claim that it has not complied with the previous three obligations may be brought by any adversely affected party before an independent review panel that can issue decisions that are binding on ICANN?

David
David W. Maher
Senior Vice President – Law & Policy
Public Interest Registry
312 375 4849

From: JAMES BLADEL <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>
Date: Friday, January 2, 2015 10:09 PM
To: Avri Doria <avri at acm.org<mailto:avri at acm.org>>
Cc: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-Accountability] Regarding how bylaw changes are made

Ive been following this thread as best I can, and believe Bruce and Avri are on the right course.  If the Board has a legal & fiduciary responsibility to ICANN the corporation, then this line of questioning could be perceived as "under what circumstances/scenarios would you willingly abdicate your fiduciary responsibility?"   I don't see how could they possibly provide an answer that is useful to our work....

Thank you,

J.
____________
James Bladel
GoDaddy

On Jan 2, 2015, at 09:21, Avri Doria <avri at acm.org<mailto:avri at acm.org>> wrote:

Hi,

My concern about asking the Board what they would decide is that it is far to hypothetical for them to give any answer other than the one Bruce offered.

How can a Board give any answer other than the one that says, give us a recommendation, lets get the community view and see how the 3/4 unfolds in our discussions.

Closer to being answerable is whether there is a legal way for them to do what the CCWG might ask for.

avri

On 01-Jan-15 18:08, Paul Rosenzweig 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

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From: Kavouss Arasteh [mailto: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<mailto: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<mailto: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<mailto:paul.rosenzweigesq at redbranchconsulting.com>
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From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>]
Sent: Thursday, January 1, 2015 10:09 AM
To: Seun Ojedeji
Cc: accountability-cross-community at icann.org<mailto: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<mailto: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<mailto: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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