[CCWG-ACCT] The GAC made me do it

Mon Feb 22 14:23:37 UTC 2016

Dear Beckie

In your reply to Jorge, you mentioned
Quote
*"The Boards concern is only about lowering the threshold to 3 in the
context of Board recall."*
Unquote
But that comments was made in relation with decrease  in the number of the
communities participating in the community empowerment from 5 to 4 as
results of GAC non participation due to the CARVE-OUT APPROACH.
That issue was generalized to cover the cases when the number of decisional
making communities decreases from 5 to 4

2016-02-22 15:08 GMT+01:00 <Jorge.Cancio at bakom.admin.ch>:

> Dear Becky
>
> Thank you very much for your replies.
>
> However, I feel we should separate intentions from facts in such replies
> and/or clarifications.
>
> In this regard, although only 0.1% (in your estimation) of the instances
> the carve-out would apply are those where the Board decision is consistent
> with the Bylaws, the fact is that the carve-out rule makes no such
> distinction, correct?
>
> As to the participation of any other SO and AC on both tracks, I kindly
> asked to confirm a fact (that any other SO or AC may fully participate,
> with the only exception pf the GAC). I infer that you are confirming it,
> right?
>
> (Reasons for doing so are something different and have been discussed and
> no full agreement found to date if I dare say so.)
>
> thanks again and regards
>
> Jorge
>
> Von meinem iPhone gesendet
>
> Am 22.02.2016 um 14:54 schrieb Burr, Becky <Becky.Burr at neustar.biz<mailto:
> Becky.Burr at neustar.biz>>:
>
> Responses in line
>
> 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<
> http://www.neustar.biz>
>
> From: "Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>" <
> Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
> Date: Monday, February 22, 2016 at 8:13 AM
> To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>,
> Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:
> kavouss.arasteh at gmail.com>>
> Cc: "steve.crocker at icann.org<mailto:steve.crocker at icann.org>" <
> steve.crocker at icann.org<mailto:steve.crocker at icann.org>>, "
> icann-board at icann.org<mailto:icann-board at icann.org>" <
> icann-board at icann.org<mailto:icann-board at icann.org>>, Accountability
> Community <accountability-cross-community at icann.org<mailto:
> accountability-cross-community at icann.org>>
> Subject: AW: [CCWG-ACCT] The GAC made me do it
>
> Dear Kavouss, dear Becky
>
> Thanks so much!
>
> From the responses I received, it seems that the carve-out applies
> generally whenever there is a Board decision to implement GAC Advice, even
> when that Board decision is deemed by the IRP to be perfectly consistent
> with ICANN Bylaws.
>
> Hence, we should be clear that there is no relation between the carve-out
> and the consistency with the Bylaws, right? Reasons for bringing such a
> challenge can be purely based on different interests, right?
>
> No, the carve out reflects the principle that we have discussed at great
> length.  The GAC should not have the authority BOTH to force the Board to
> the negotiating table at any time over any issues and to block community
> challenge of the results of those Board/GAC negotiations.  The status of
> GAC Advice differentiates it from any other kind of advice.  I suspect that
> 99.9% of the time that challenge will involve an alleged bylaws violations,
> but maybe not.
>
> It is just a rule that excludes the GAC from (a decisional role in) any
> community decision where a Board decision to implement GAC Advice is at
> stake.
>
> Correct, it bars the GAC from participating as a decision-maker in a
> discussion of a decision to use one of the community powers in that
> situation.
>
> A further question: if such a Board decision is based both on a SO
> recommendation, an ALAC advice and a GAC Advice, the only entity to be
> excluded from a community process would be the GAC, right? But the other SO
> and AC would participate on both tracks, correct?
>
> I’ve provided my views on this several times Jorge.  Please refer to my
> email about why GAC Advice is different from a PDP.
>
> As to the threshold question: it merely has to do with the Board recall,
> but does not affect any of the mentioned characteristics of the carve-out,
> correct?
>
> The Boards concern is only about lowering the threshold to 3 in the
> context of Board recall.
>
> Thanks very much for any further guidance
>
> Best
>
> Jorge
>
>
> Von: Burr, Becky [mailto:Becky.Burr at neustar.biz]
> Gesendet: Montag, 22. Februar 2016 14:00
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>; kavouss.arasteh at gmail.com<mailto:
> kavouss.arasteh at gmail.com>
> Cc: steve.crocker at icann.org<mailto:steve.crocker at icann.org>;
> icann-board at icann.org<mailto:icann-board at icann.org>;
> accountability-cross-community at icann.org<mailto:
> accountability-cross-community at icann.org>
> Betreff: Re: [CCWG-ACCT] The GAC made me do it
>
> Jorge-
>
> The carve out would apply but you would need 4 SO/AC s to recall the Board.
>
> 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<
> http://www.neustar.biz>
>
> From: "Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>" <
> Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>
> Date: Monday, February 22, 2016 at 6:44 AM
> To: Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:
> kavouss.arasteh at gmail.com>>
> Cc: "steve.crocker at icann.org<mailto:steve.crocker at icann.org>" <
> steve.crocker at icann.org<mailto:steve.crocker at icann.org>>, "
> icann-board at icann.org<mailto:icann-board at icann.org>" <
> icann-board at icann.org<mailto:icann-board at icann.org>>, Accountability
> Community <accountability-cross-community at icann.org<mailto:
> accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] The GAC made me do it
>
> Dear Kavouss
>
> Thanks for the clarification.
>
> Hence, do I understand correctly that the carve-out (exclusion of GAC as
> decisional participant) applies also if the Board decision to implement GAC
> Advice has been found by the IRP to be perfectly consistent with the Bylaws?
>
> Thanks for your guidance
>
> Regards
>
> Jorge
>
> Von: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> Gesendet: Montag, 22. Februar 2016 12:41
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>
> Cc: Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>;
> Steve Crocker <steve.crocker at icann.org<mailto:steve.crocker at icann.org>>;
> accountability-cross-community at icann.org<mailto:
> accountability-cross-community at icann.org>; Icann-board ICANN <
> icann-board at icann.org<mailto:icann-board at icann.org>>
> Betreff: Re: [CCWG-ACCT] The GAC made me do it
>
> Dear Jorge,
> You are right
> The carve out applies to all cases either in application of IRP or in the
> absence of IRP
> For the first Board's agreed with reduced threshold from 4 to 3 for
> Board's Spill
> For the second the Board wishes that the 4 SO/AC threshold applies .
> Some people in the community like me fully supportting the Board's views.
> Some others are against
> This is one of the issue that must be resolved tomorrow
> Regards
> Kavouss
>
> 2016-02-22 12:25 GMT+01:00 <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>:
>
> Dear all
>
>
>
> From this email by Milton it seems that some (as Milton) are understanding
> that the carve-out only would apply if the Board decision to implement GAC
> Advice is found (by the IRP I guess) to be inconsistent with the Bylaws.
>
>
>
> I have been away for one week, but I feel that the carve-out was meant to
> apply generally to situations where there is Board implementation of GAC
> Advice...
>
>
>
> Could someone kindly clarify the status?
>
>
>
> Best regards
>
>
>
> Jorge
>
>
>
> -----Ursprüngliche Nachricht-----
> Von: accountability-cross-community-bounces at icann.org<mailto:
> accountability-cross-community-bounces at icann.org> [mailto:
> accountability-cross-community-bounces at icann.org<mailto:
> accountability-cross-community-bounces at icann.org>] Im Auftrag von
> Mueller, Milton L
> Gesendet: Sonntag, 21. Februar 2016 23:34
> An: Steve Crocker <steve.crocker at icann.org<mailto:steve.crocker at icann.org>>;
> Accountability Community <accountability-cross-community at icann.org<mailto:
> accountability-cross-community at icann.org>>
> Cc: Icann-board ICANN <icann-board at icann.org<mailto:icann-board at icann.org
> >>
> Betreff: Re: [CCWG-ACCT] The GAC made me do it
>
>
>
> Steve
>
> I think Andrew got the issue exactly right. I do not see how your answer
> even engages with his argument, which is that nearly all of the community
> has agreed that when board actions are challenged for being out of mission
> by following GAC advice, that the GAC should not be in a position to rule
> on that.
>
>
>
> Claiming that the GAC does not have "extraordinary power" does not answer
> Andrew's argument. Whether the GAC has extraordinary power or not, if it
> advises you (the board) to do something that the rest of the community
> thinks is outside of the bounds of the bylaws (which it has a demonstrated
> tendency to do) the GAC should not be a decisional member of the empowered
> community that decides whether we get to challenge that action.
>
>
>
> From that premise on, it is all arithmetic, as Andrew showed:
>
>
>
> > > This is a choice entirely within the GAC's power.  It must choose.
>
> > > If it chooses to be board-advisor-GAC, then it is in effect choosing
>
> > > that it prefers that mode of operation to being part of the wider
>
> > > Empowered Community mechanism.  In effect, a GAC choice can reduce
>
> > > the possible actors in the Empowered Community to four.  Otherwise,
>
> > > the GAC is in a position to insist on advice it gave being
>
> > > considered first by the board, and then that the GAC can also
>
> > > participate in the judgement of the Board's actions.  That's the
>
> > > very "two bites" problem that we were trying to solve.  I believe
>
> > > that in most organizations (including many governments), it would be
>
> > > regarded as surprising that a participant in the to-be-judged action
> also gets to be one of the judges.
>
>
>
> You have not refuted this, as I said before you have not even engaged with
> this.
>
> This increases my suspicion that the board's position is based on a
> political calculus, not on good governance or accountability criteria.
>
>
>
> Further, it is clear from the reaction you have gotten that the board is
> not proposing a "friendly amendment." In these rules of procedure, a
> friendly amendment has to be accepted by the group that proposed it, and
> clearly it is not.
>
>
>
> I am deeply disturbed by the board upsetting a consensual compromise, and
> a very difficult one, for the third time in this process. I wonder if you
> have any appreciation of the potential costs of this, particularly when it
> involves an issue as sensitive as the role of national governments in ICANN.
>
>
>
> Dr. Milton L. Mueller
>
> Professor, School of Public Policy
>
> Georgia Institute of Technology
>
>
>
>
>
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