[CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Wed Feb 17 09:05:02 UTC 2016

Thank you Bruce this is cetainly clear to me...
On 17 Feb 2016 7:53 pm, "Edward Morris" <egmorris1 at toast.net> wrote:

> Brett, it appears to me that you are correct. The switch from the
> membership model left us dependent upon spilling the Board, or parts of it,
> as the ultimate community power. Now, following weeks of proper
> consideration where the Board did not raise this concern, they are making a
> last minute end run around the process attempting to raise the threshold
> for board spillage in those areas where the issue for spillage involves
> consensus Board advice that is not within the scope of an IRP.
>
> I note Becky Burr's comments on this issue:
>
>
> '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).'
>
> Many members of the CCWG, including myself, have indicated agreement with
> Becky's view.
>
> Can somebody point to me where this limitation on community power has been
> proposed, discussed and agreed by the community? Can someone show me where
> the two readings have been held on this issue?
>
> If not then this is a process violation and I will be forced to ask the
> NCSG policy committee to file a complaint with the Office of the Ombudsman.
> I don't believe the community has or will agree to this limitation of the
> GAC carve out if given a chance to examine it and weigh in on
> the matter. It sorrows me that the Board is pushing this last minute
> change that threatens the ongoing status of our fine Proposal. Of course,
> given the timing this proposal could and should placed in the Supplemental
> as a Minority Statement, nothing more,
>
> Best,
>
> Ed
>
> Sent from my iPhone
>
> On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer at heritage.org>
> wrote:
>
>
>
> Well, this is clear and it is what I was concerned about.
>
>
> Essentially, the Board is insisting in a 4 SOAC threshold for spilling the
> Board in all circumstances except when it is defying an IRP ruling against
> a decision based on consensus GAC advice.  It is a significant change
> making it more difficult for the EC to exercise its ultimate enforcement
> power.
>
>
> Moreover, it seems likely that, if the GAC decides not to participate in
> the EC as a full decisions like participant, and the thresholds are
> adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill
> the Board.
>
>
> Am I wrong?
>
>
>
> ________________________________
>
> 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<http://heritage.org/>
>
>
> Begin forwarded message:
>
>
> From: Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au<
> mailto:Bruce.Tonkin at melbourneit.com.au <Bruce.Tonkin at melbourneit.com.au>>>
>
> Date: February 16, 2016 at 8:28:04 PM EST
>
> To: Accountability Cross Community <
> accountability-cross-community at icann.org<
> mailto:accountability-cross-community at icann.org
> <accountability-cross-community at icann.org>>>
>
> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of
> GAC advice
>
>
> Hello All,
>
>
> To reiterate the Board's position in the case of the carve out compromise
> involving GAC advice, the Board can agree to reducing the threshold for
> Board removal to three SOs or ACs, with no more than one objecting, when
> there was an IRP finding against the Board regarding the acceptance of GAC
> advice.
>
>
> For all other attempts to remove the full ICANN Board, the Board does not
> support lowering the threshold below four SOs or ACs, with no more than one
> objecting. . The power to spill the Board would remain available as
> contemplated within the CCWG's third draft proposal.
>
>
> For the avoidance of doubt, if the Board accepts GAC advice within the
> limitations of ICANN's mission and bylaws, an IRP panel confirms that is
> the case, and the community simply dislikes the GAC advice - then the
> threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from
> participating then this would mean that the ccNSO, GNSO, ASO and ALAC would
> need to agree that the Board should be removed.
>
>
> Our view is that past cases relating to disagreement on GAC advice have
> been focussed on concerns that ICANN is exceeding its mission or is not
> following its processes. The IRP is the most appropriate vehicle to resolve
> disputes in this area. In general the Board consults widely with the whole
> community before accepting the advice from any one part of the community.
> We think a situation where the community broadly disagrees with an action
> the Board has taken that is within the mission and bylaws is likely to be
> extremely rare, and the threshold of 4 SOs and ACs is still appropriate in
> that scenario if the community simply dislikes the Board's decision.
>
>
> Regards,
>
> Bruce Tonkin
>
>
> _______________________________________________
>
> Accountability-Cross-Community mailing list
>
> Accountability-Cross-Community at icann.org<
> mailto:Accountability-Cross-Community at icann.org
> <Accountability-Cross-Community at icann.org>>
>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
>
>
> Sent from my iPhone
>
> On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer at heritage.org>
> wrote:
>
> Jordan,
>
> The way I read it, the Board is insisting on a 4 SOAC threshold for
> spilling the Board in all circumstances except when it is specifically
> defying an IRP ruling against a decision based on consensus GAC advice.
>
> In other words, if the community wants to spill 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 the Board says that the 4 SOAC threshold should apply rather
> than the 3 SOAC threshold currently proposed under the GAC carve out.  If
> this read is wrong, please let me know how.
>
> This may be acceptable to the CCWG, but let's not pretend that it is some
> minor tweak. As Becky noted, this would materially narrow the spill the
> Board power by making it harder to exercise.
>
> I agree that this situation should rarely arise. The community is
> populated by serious people and the Board should not fear that these powers
> will be exercised lightly. But they also need to be reasonably available if
> necessary. That is why we resisted setting the thresholds at levels
> requiring unanimous support in the first place. In my opinion, the Board
> has not offered a compelling reason for their proposed change.
>
> If the Board is needs some assurance, then Becky's narrower interpretation
> should be sufficient.
>
> Best,
>
> 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<http://heritage.org/>
>
> On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan at internetnz.net.nz<
> mailto:jordan at internetnz.net.nz <jordan at internetnz.net.nz>>> wrote:
>
> Robin, I don't think that is what is being proposed.
>
> All that is being discussed is in relation to the GAC carveout, where we
> had earlier agreed that where there was a challenge to the Board's
> implementation of GAC advice, GAC couldn't also be a decisional participant
> in any move to recall the Board.
>
> That got added to by including a lower thresholds in that situation, to
> avoid a unanimity requirement.
>
> Then it got qualified by noting that if there had been an IRP, etc etc.
>
> But what is not being proposed, as I understand it, is any change to the
> general power to recall the ICANN Board or the thresholds to operate it.
>
> I would not support any such changes.
>
>
> cheers
> Jordan
>
>
> On 17 February 2016 at 15:55, Robin Gross <robin at ipjustice.org<
> mailto:robin at ipjustice.org <robin at ipjustice.org>>> wrote:
> The CCWG never discussed, let alone agreed to narrow the grounds for
> spilling the board to only those grounds for an IRP as the board suddenly
> proposes.  We cannot have such a significant narrowing of our mechanisms at
> the hour 23:59.  The board should have proposed this curtailment months
> ago, when the issue could have been fairly considered.  But the board can’t
> slip it in at this impossibly late hour.
>
> Robin
>
>
>
> On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au
> <mailto:Bruce.Tonkin at melbourneit.com.au <Bruce.Tonkin at melbourneit.com.au>>>
> wrote:
>
> Hello All,
>
> To reiterate the Board's position in the case of the carve out compromise
> involving GAC advice, the Board can agree to reducing the threshold for
> Board removal to three SOs or ACs, with no more than one objecting, when
> there was an IRP finding against the Board regarding the acceptance of GAC
> advice.
>
> For all other attempts to remove the full ICANN Board, the Board does not
> support lowering the threshold below four SOs or ACs, with no more than one
> objecting.  .  The power to spill the Board would remain available as
> contemplated within the CCWG's third draft proposal.
>
> For the avoidance of doubt, if the Board accepts GAC advice within the
> limitations of ICANN's mission and bylaws, an IRP panel confirms that is
> the case, and the community simply dislikes the GAC advice - then the
> threshold of 4 SOs and ACs continues to apply.   If the GAC is excluded
> from participating then this would mean that the ccNSO, GNSO, ASO and ALAC
> would need to agree that the Board should be removed.
>
> Our view is that past cases relating to disagreement on GAC advice have
> been focussed on concerns that ICANN is exceeding its mission or is not
> following its processes.   The IRP is the most appropriate vehicle to
> resolve disputes in this area.   In general the Board consults widely with
> the whole community before accepting the advice from any one part of the
> community.    We think a situation where the community broadly disagrees
> with an action the Board has taken that is within the mission and bylaws is
> likely to be extremely rare, and the threshold of 4 SOs and ACs is still
> appropriate in that scenario if the community simply dislikes the Board's
> decision.
>
> Regards,
> Bruce Tonkin
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org<
> mailto:Accountability-Cross-Community at icann.org
> <Accountability-Cross-Community at icann.org>>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org<
> mailto:Accountability-Cross-Community at icann.org
> <Accountability-Cross-Community at icann.org>>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
>
>
>
>
> --
> Jordan Carter
>
> Chief Executive
> InternetNZ - your voice for the Open Internet
>
> +64-4-495-2118 (office) | +64-21-442-649 (mob)
> Email: jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz
> <jordan at internetnz.net.nz>>
> Skype: jordancarter
> Web: www.internetnz.nz<http://www.internetnz.nz>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org<
> mailto:Accountability-Cross-Community at icann.org
> <Accountability-Cross-Community at icann.org>>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160217/64a565c9/attachment-0001.html>