[CCWG-ACCT] what the Board is objecting to here -

Burr, Becky Becky.Burr at neustar.biz
Sat Feb 20 17:19:59 UTC 2016

As the transcript shows and I explained in my post last night, on 16 February we agreed that four SO/ACs were needed to recall the Board where an IRP found that the Bylaws were not violated. That is quite different from Alan's characterization.  Apparently people now feel that is not enough -fine. Let's focus on finding a solution rather than asserting facts on the ground that don't exist.

Sent from my iPad

On Feb 19, 2016, at 10:19 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>> wrote:

Dear Alan.
Dear All,
The understanding of Alan is right.
The no 2 was prooposed as interpretation made by Beckie but it was and still on debate. However, if no IRP is available the only valid approach would be the Spill over by 4 SO/AC.
This issue is still Under consideration and yet to be resolved.

"The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions:

(1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or

(2) if the IRP is not available to challenge the Board action in question.

My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole.


2016-02-20 3:22 GMT+01:00 Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>:
Agree Seun. The dispute relates to efforts to spill the board on other grounds. I think we all agree that where an IRP Ian available - because the implementation involved an alleged violation of the bylaws - that should be the first recourse.

Sent from my iPad

On Feb 19, 2016, at 9:15 PM, Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>> wrote:

Hi Becky,

I tried parsing what you just said and it seem to be the same thing with what the board is asking. Leaving aside the word "agreed" in the first sentence it seem to imply that less than 4 can indeed spill the board if the IRP found it violates the bylaw. Isn't that what a number of us have been saying (nevermind that I personally have always being of the opinion that the "carve out" was not necessary in the first place).

Unless this is just English deficiency on my side, I think there is no difference between the 2 sentences you indicated. As the second sentence seem to confirm the first one. Otherwise it may be good to know what other time the threshold can be 3?


On 20 Feb 2016 1:14 a.m., "Burr, Becky" <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>> wrote:
The point is that we agreed that the threshold would be 4 where an IRP found there was no bylaws violation.  That is not the same as agreeing that the only time the threshold would be 3 was if an IRP found a bylaws violation.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932<tel:%2B1.202.533.2932>  Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz>

From: Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>>
Date: Friday, February 19, 2016 at 6:58 PM
To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>, Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
Cc: Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] what the Board is objecting to here -

My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages, but I did not conclude that there was any agreement.

Sent from my mobile. Please excuse brevity and typos.

On February 19, 2016 6:46:47 PM EST, "Burr, Becky" <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>> wrote:
I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am.

First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point.

Following Bruce’s email, on our call on 16 February we agreed  that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws.  That’s quite clear in the transcript.  The transcript does not reflect agreement that an IRP must be brought in any or all cases.  Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be).

Hours following that call there were some questions and concerns on the list, so I posted the following email:


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.



Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal.  We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago.  The Board has indicated it is still unhappy.  And that provides the opportunity to unwind hard-won consensus.  No good deed goes unpunished.

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