[CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Tue Feb 16 18:59:24 UTC 2016


+1as well 
--
Paul Rosenzweig
Sent from myMail app for Android Tuesday, 16 February 2016, 01:12PM -05:00 from Matthew Shears < mshears at cdt.org> :

>Yes, likewise.  
>
>On 2/16/2016 6:10 PM, Greg Shatan
      wrote:
>>I agree with my
          colleagues above.
>>
>>Greg
>>
>>On Tue, Feb 16, 2016 at 12:57 PM, Robin
          Gross  < robin at ipjustice.org > wrote:
>>>+1
>>>
>>>Robin
>>>
>>>>On Feb 16, 2016, at 9:41 AM, Edward Morris
                          < egmorris1 at toast.net >
                          wrote:
>>>>My
                            views echo yours, Becky. Thanks Brett for
                            picking up on this.
>>>>
>>>>Ed
>>>>
>>>>Sent from my iPhone
>>>>
>>>>On 16 Feb 2016, at 16:58, Burr, Becky < Becky.Burr at neustar.biz >
                            wrote:
>>>>
>>>>>Brett,
>>>>>
>>>>>My support for the Board’s
                                    approach would be limited to cases
                                    where the community seeks to recall
                                    the Board because its implementation
                                    of GAC Advice violates the Bylaws or
                                    Articles.  In that case, I think
                                    that an IRP is the most appropriate,
                                    least disruptive approach.  I can
                                    live with the notion that the
                                    community would respect the final
                                    determination of an IRP in such
                                    cases –   and isn’t
                                      that what it means for the IRP to
                                      be binding ?
>>>>>
>>>>>If the community seeks to dump
                                    the Board based on its
                                    implementation of GAC Advice, but
                                    where the justification for the use
                                    of this community power is something
                                    other than a violation of the Bylaws
                                    or Articles, then, in my view, the
                                    lower threshold should apply and
                                    there should be no obligation to
                                    file an IRP (which, presumably,
                                    would be dismissed on standing
                                    grounds).
>>>>>
>>>>>Bruce – I think we need
                                      clarification from you as to the
                                      Board’s intent .  One could
                                    read your proposal as an attempt to
                                    limit any use of the spill the Board
                                    power in response to the Board’s
                                    implementation to GAC Advice to
                                    situations where that implementation
                                    amounts to a violation of the
                                    Bylaws/Articles.  This reading would
                                    – at least theoretically –
                                    materially narrow the spill the
                                    board power.  So I think Brett is
                                    right on the principle.  But I also
                                    think the read I’ve proposed doesn’t
                                    really undermine the Board’s goal
                                    either, inasmuch as I believe that
                                    the community will be rightly
                                    reluctant to spill the Board in
                                    response to an action/inaction that
                                    is not alleged to violate the
                                    Bylaws/Articles.
>>>>>
>>>>>I suspect there are some details
                                    to be worked out on how you resolve
                                    a dispute between the Board and the
                                    community on whether a spill the
                                    Board effort is based on an
                                    action/inaction that can be reviewed
                                    under the IRP, but I don’t think
                                    they are insurmountable.
>>>>>
>>>>>Becky
>>>>>
>>>>>
>>>>>
>>>>>J. Beckwith Burr  
>>>>>Neustar,
                                          Inc.   /   Deputy
                                        General Counsel & Chief
                                        Privacy Officer
>>>>>1775 Pennsylvania Avenue NW,
                                        Washington D.C. 20006
>>>>>Office:   +1.202.533.2932     Mobile:   +1.202.352.6367   /   neustar.biz
>>>>>
>>>>>From:   <Schaefer>,
                                  Brett < Brett.Schaefer at heritage.org >
>>>>>Date:   Tuesday,
                                  February 16, 2016 at 9:38 AM
>>>>>To:   Becky
                                  Burr < becky.burr at neustar.biz >,
                                  " egmorris1 at toast.net "
                                  < egmorris1 at toast.net >,
                                  Paul Rosenzweig < paul.rosenzweig at redbranchconsulting.com >,
                                  " brenda.brewer at icann.org "
                                  < brenda.brewer at icann.org >,
                                  Accountability Community < accountability-cross-community at icann.org >
>>>>>Subject:   RE:
                                  [CCWG-ACCT] CCWG ACCT Proposed Agenda
                                  - Call #84 - Tuesday, 16 February @
                                  06:00 UTC
>>>>>
>>>>>
>>>>>Becky,
>>>>> 
>>>>>The
                                          Board’s proposal seems to make
                                          it mandatory to go to an IRP
                                          even if the Board’s decision
                                          is clearly within the scope
                                          and mission of ICANN. In such
                                          a situation, the IRP would
                                          obviously fail and the EC
                                          would no longer have the
                                          option of exercising its final
                                          enforcement power of spilling
                                          the Board at the lower
                                          threshold and without the GAC
                                          being a decisional participant
                                          even though the original Board
                                          Decision was based on
                                          consensus GAC advice. As I
                                          mentioned last night in my
                                          semi-slumber, this would be,
                                          in my mind, a loophole to the
                                          GAC carve out.
>>>>> 
>>>>>Could
                                          you point me to the section of
                                          the Board’s proposal that says
                                          that “the requirement to bring
                                          an IRP first could only apply
                                          where there are grounds to
                                          invoke an IRP”? If that is the
                                          case, then my concerns are
                                          greatly lessened.  
>>>>> 
>>>>>Thanks,
>>>>> 
>>>>>Brett
>>>>> 
>>>>> 
>>>>> 
>>>>>
>>>>>
>>>>>----------------------------------------------------------------------
>>>>>Brett Schaefer
>>>>>Jay Kingham Senior Research Fellow
                                      in International Regulatory
                                      Affairs
>>>>>Margaret Thatcher Center for
                                      Freedom Davis Institute for
                                      National Security and Foreign
                                      Policy
>>>>>The
                                      Heritage Foundation
>>>>>214 Massachusetts Avenue, NE
>>>>>Washington, DC 20002
>>>>>202-608-6097
>>>>>heritage.org
>>>>>
>>>>>
>>>>>From:   accountability-cross-community-bounces at icann.org   [ mailto:accountability-cross-community-bounces at icann.org ]   On
                                                Behalf Of   Burr,
                                              Becky
>>>>>Sent:   Monday,
                                              February 15, 2016 2:22 PM
>>>>>To:   egmorris1 at toast.net ;
                                              Paul Rosenzweig; Brenda
                                              Brewer;
                                              CCWG-Accountability
>>>>>Subject:   Re:
                                              [CCWG-ACCT] CCWG ACCT
                                              Proposed Agenda - Call #84
                                              - Tuesday, 16 February @
                                              06:00 UTC
>>>>> 
>>>>>Not sure that
                                                Board comments are being
                                                fast tracked, but
                                                considered
>>>>> 
>>>>>You are correct
                                                Ed, that the requirement
                                                to bring an IRP first
                                                could only apply where
                                                there are grounds to
                                                invoke an IRP
>>>>> 
>>>>>J.
                                                  Beckwith Burr
>>>>>Neustar,
                                                  Inc. / Deputy
                                                General Counsel &
                                                Chief Privacy Officer
>>>>>1775 Pennsylvania Avenue
                                                NW, Washington D.C.
                                                20006
>>>>>Office: +1.202.533.2932     Mobile: +1.202.352.6367   / neustar.biz
>>>>> 
>>>>>From:   Edward Morris < egmorris1 at toast.net >
>>>>>Reply-To:   " egmorris1 at toast.net "
                                            < egmorris1 at toast.net >
>>>>>Date:   Monday,
                                            February 15, 2016 at 2:08 PM
>>>>>To:   Paul
                                            Rosenzweig < paul.rosenzweig at redbranchconsulting.com >,
                                            " brenda.brewer at icann.org "
                                            < brenda.brewer at icann.org >,
                                            Accountability Community
                                            < accountability-cross-community at icann.org >,
                                            Becky Burr < becky.burr at neustar.biz >
>>>>>Subject:   Re:
                                            [CCWG-ACCT] CCWG ACCT
                                            Proposed Agenda - Call #84 -
                                            Tuesday, 16 February @ 06:00
                                            UTC
>>>>> 
>>>>>Hi Becky,
>>>>> 
>>>>>I have two
                                                concerns here that I
                                                hope those with
                                                expertise in
                                                these specific areas can
                                                help me put to rest:
>>>>> 
>>>>> 
>>>>>?1. Why are these
                                                latest Board
                                                objections/proposals
                                                being fast tracked
                                                within the CCWG at the
                                                last minute? Did the
                                                Board not have ample
                                                opportunity to raise
                                                these issues during the
                                                normal and proper review
                                                of the third draft
                                                proposal? Is there
                                                something I'm missing
                                                here? My belief was that
                                                we're at the point of
                                                vetting the Supplemental
                                                for technical, not
                                                substantive, omissions
                                                and additions. Should
                                                not these Board
                                                objections now be
                                                included in a Minority
                                                Statement, rather than
                                                receiving preferential
                                                consideration by the
                                                entire CCWG? If the
                                                answer to that query is
                                                in the negative.
                                                that substantive
                                                revisions may still be
                                                adopted,  do not our
                                                rules mandate
                                                consideration at two
                                                meetings before any
                                                alteration to our
                                                proposal should occur? 
>>>>> 
>>>>>2. I personally
                                                don't have a problem
                                                with requiring the
                                                community to invoke an
                                                IRP before spilling the
                                                Board when the reason
                                                for the recall was Board
                                                implementation of
                                                GAC advice  when   said
                                                advice is related to
                                                subject matter
                                                appropriate for an IRP
                                                panel to hear
                                                (generally, ICANN acting
                                                in a way outside its
                                                scope and/or
                                                not consistent with its
                                                Bylaws or Articles of
                                                Incorporation). 
>>>>> 
>>>>>?What, though, of
                                                GAC consensus advice
                                                that is itself outside
                                                the scope of an IRP? I'm
                                                thinking of consensus
                                                GAC advice that is
                                                within ICANN's mission
                                                and scope, where there
                                                is no allegation of a
                                                Bylaws or Articles
                                                violations, yet whose
                                                approval by the Board
                                                triggers a community
                                                desire to spill the
                                                Board. An example could
                                                be something related to
                                                the delegation of a gTLD
                                                that, for some reason,
                                                has prompted GAC
                                                opposition. The IRP
                                                would not
                                                act affirmatively in
                                                this instance to any
                                                request to nullify the
                                                Board action because the
                                                reasons for the
                                                community opposition
                                                presumably lay outside
                                                the remit of an IRP. Do
                                                we then want the fact
                                                that the IRP refused to
                                                act, because it can't,
                                                to then raise the
                                                threshold by which Board
                                                spillage will
                                                occur?  I'm not
                                                sure that's wise.
>>>>> 
>>>>>Of course, as
                                                Becky noted I don't
                                                anticipate this aspect
                                                of our proposal  will
                                                truly ever come into
                                                play. At least I
                                                hope its doesn't. That
                                                said, we need to design
                                                our structures as if it
                                                might and raising
                                                spill thresholds as a
                                                result of an IRP not
                                                making a substantive
                                                decision on an issue
                                                because said issue
                                                itself  is outside
                                                it's remit...do we
                                                really want to do this?
>>>>>?
>>>>> 
>>>>>Best,
>>>>> 
>>>>>Ed Morris   
>>>>> 
>>>>> 
>>>>> 
>>>>>----------------------------------------------------------------------
>>>>>From : "Burr, Becky"
                                                < Becky.Burr at neustar.biz >
>>>>>Sent : Monday,
                                                February 15, 2016 6:26
                                                PM
>>>>>To : "Paul
                                                Rosenzweig" < paul.rosenzweig at redbranchconsulting.com >,
                                                "Brenda Brewer" < brenda.brewer at icann.org >,
                                                "CCWG-Accountability"
                                                < accountability-cross-community at icann.org >
>>>>>Subject : Re:
                                                [CCWG-ACCT] CCWG ACCT
                                                Proposed Agenda - Call
                                                #84 - Tuesday, 16
                                                February @ 06:00 UTC
>>>>> 
>>>>>Paul - 
>>>>> 
>>>>>Are you asking
                                                      whether we will
                                                      discuss the
                                                      proposal that
                                                      Bruce put on the
                                                      table regarding
                                                      the GAC carve
                                                      out?  As I
                                                      understand it, the
                                                      proposal would
                                                      apply only where
                                                      Board recall was
                                                      sought in response
                                                      to Board
                                                      implementation of
                                                      GAC consensus
                                                      advice and the GAC
                                                      was thus precluded
                                                      from participating
                                                      in the EC as a
                                                      decision maker. 
                                                      In that situation,
                                                      we reduced the
                                                      requisite support
                                                      level from 4 to 3
                                                      (to prevent
                                                      requiring
                                                      unanimity).  I
                                                      understand that
                                                      reduction is a
                                                      matter of concern
                                                      to the Board.
>>>>> 
>>>>>I personally don’t
                                                      have a lot of
                                                      trouble with the
                                                      notion that the
                                                      community would be
                                                      required to invoke
                                                      the IRP process
                                                      before moving to
                                                      recall the entire
                                                      Board in that
                                                      circumstance.  To
                                                      be candid, my
                                                      comfort reflects
                                                      my belief that the
                                                      Board recall power
                                                      is nearly
                                                      illusory, given
                                                      how disruptive
                                                      such a step would
                                                      be.  I can’t
                                                      imagine why one
                                                      would choose
                                                      recall over resort
                                                      to the independent
                                                      judiciary wherever
                                                      possible.  
>>>>> 
>>>>>That said, I agree we
                                                      should discuss the
                                                      proposal on our
                                                      call tomorrow.
>>>>> 
>>>>>Becky
>>>>> 
>>>>>J. Beckwith Burr
>>>>>Neustar,
                                                        Inc. / Deputy
                                                      General Counsel
                                                      & Chief
                                                      Privacy Officer
>>>>>1775 Pennsylvania
                                                      Avenue NW,
                                                      Washington D.C.
                                                      20006
>>>>>Office: +1.202.533.2932     Mobile: +1.202.352.6367   / neustar.biz
>>>>> 
>>>>>From:   Paul Rosenzweig
                                                  < paul.rosenzweig at redbranchconsulting.com >
>>>>>Date:   Monday,
                                                  February 15, 2016 at
                                                  10:43 AM
>>>>>To:   " brenda.brewer at icann.org "
                                                  < brenda.brewer at icann.org >,
                                                  Accountability
                                                  Community < accountability-cross-community at icann.org >
>>>>>Subject:   Re:
                                                  [CCWG-ACCT] CCWG ACCT
                                                  Proposed Agenda - Call
                                                  #84 - Tuesday, 16
                                                  February @ 06:00 UTC
>>>>> 
>>>>><~WRD000.jpg>
>>>>>Dear
                                                    Co-Chairs
>>>>> 
>>>>>Will
                                                    the Board’s proposal
                                                    re: further
                                                    revisions to the EC
                                                    process be discussed
                                                    under Item #2?   I
                                                    would hope that we
                                                    would have full
                                                    discussion of this
                                                    proposed change,
                                                    which I would be
                                                    opposed to …
>>>>> 
>>>>>Paul
>>>>> 
>>>>>Paul
                                                      Rosenzweig
>>>>>paul.rosenzweig at redbranchconsulting.com
>>>>>O: +1
                                                        (202) 547-0660
>>>>>M: +1
                                                        (202) 329-9650
>>>>>VOIP: +1
                                                        (202) 738-1739
>>>>>Skype:
paul.rosenzweig1066
>>>>>Link to my PGP Key
>>>>><image001.jpg>
>>>>> 
>>>>>From:   Brenda
                                                        Brewer [ mailto:brenda.brewer at icann.org ]
>>>>>Sent:   Monday,
                                                        February 15,
                                                        2016 8:03 AM
>>>>>To:   CCWG-Accountability
                                                        < accountability-cross-community at icann.org >
>>>>>Subject:   [CCWG-ACCT]
                                                        CCWG ACCT
                                                        Proposed Agenda
                                                        - Call #84 -
                                                        Tuesday, 16
                                                        February @ 06:00
                                                        UTC
>>>>> 
>>>>>Dear all,
>>>>>In preparation for
                                                    your call   #84   –
                                                    Tuesday,   16
                                                    February   2016   at
                                                    06:00 – 08:00 UTC   ( time
                                                      converter ),
                                                    see below a proposed
                                                    agenda:
>>>>>1.         Opening Remarks
>>>>>2.         Comments on
                                                    Supplementary Report
>>>>>3.         Budget
>>>>>4.         AOC
>>>>>Adobe
                                                      Connect:   https://icann.adobeconnect.com/accountability/
>>>>> 
>>>>>Thank
                                                    you!
>>>>>Kind
                                                    regards,
>>>>>Brenda
>>>>> 
>>>>>
>>>>><~WRD000.jpg>
>>>>><image001.jpg> _______________________________________________
>>>>Accountability-Cross-Community
                          mailing list
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>>>
>>>_______________________________________________
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>>>
>>
>>
>>
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Accountability-Cross-Community mailing list
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>
>-- 

Matthew Shears | Director, Global Internet Policy & Human Rights Project
Center for Democracy & Technology | cdt.org
E: mshears at cdt.org | T: +44.771.247.2987

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