[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

[Malcolm Hutty]

> On 7 Jan 2016, at 16:36, Andrew Sullivan <ajs at anvilwalrusden.com> wrote:
> 
> But second, the scenario imagines a case in which there is GAC advice
> that goes beyond the legal responsibilities of the board members
> (because of the bylaws) but where fewer than 2/3 of the board is
> willing to say, "No."  This is of course a logical possibility, but it
> seems to me that at some point we have to admit that board members
> have power, judgement, and discretion.  The empowered community can
> hold the board to account; but if you're going to have a corporation
> with a board it's still going to need to be able to act.  Presumably,
> the point of the board member selection process is to try to select
> people who won't suddenly take leave of their senses and start doing
> things outside their legal scope.

Andrew,

I don't think we need to expect that the Board might "suddenly take leave of their senses" for there to be a need for independent review of whether they have strayed beyond the bounds of the matters on which they are authorised to act. Any entity can err, and accountability means that something can be done to correct that in the (hopefully rare) cases where it does. 

Indeed, the IRP has found against the Board in previous cases that have occurred. Do you think that Board had taken leave of their senses each time?

The trouble with your argument that we can just trust the Board to remain within the Mission when invited by the GAC to stray beyond it, without a mechanism to review their decisions, is that the same argument applies equally to the case of the Board acting inconsistently with the Bylaws in any other way, as it does to the specific case of the Board acting inconsistently with the Mission limitation. Are you really suggesting that there is no need for the IRP at all?

After multiple rounds of public comment, with every round overwhelmingly endorsing the same approach, I think this question should really be considered settled:
* ICANN must have a limited Mission;
* ICANN must only act within the scope of that Mission;
* The IRP must be available to provide fair, independent and objective review of claims that ICANN has acted outside that scope, and to provide effective redress when it finds that that has occurred;
* The GAC should be able to give whatever advice it thinks fit, but a claim that a particular action was suggested by GAC advice, or even required to implement GAC advice, should not excuse actions that the above would otherwise prohibit. 

The Mission is intended to be stable, but it is not immutable. If the GAC believes that the above limits prevent ICANN from doing things that ICANN should do, the proper course of action is not to defy these rules or to denude them of effect, but to suggest the ways in which they think ICANN's Mission should be increased, for the consideration of the community. 

Kind Regards,

Malcolm