[Area 3] [CCWG-Accountability] Regarding how bylaw changes are made

Sat Jan 3 08:31:59 UTC 2015

Hi all,

I support Tijani's points and observations in light of the scenarios.

Best Regards

On 1/3/15, Carrie <carriedev at gmail.com> wrote:
> Here is a POV
> There are 7 billion people in the world your decision impact
>
> I think there are 130 of us in the group?
>
> Carrie
> Www.centerforcopyrightintegrity.com
>
> Sent from my iPhone
>
>> On Jan 2, 2015, at 2:20 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
>> wrote:
>>
>> Dear Avri,
>> Dear All.
>> Thank you very much for your comments
>> I have one question which continued to bother me as everyone refers to
>> «community"
>> What is that magic term "community» covers?
>> Does it includes or embrace the entire multistakeholders?
>> As it was discussed at several occasion, there is a defacto agreement that
>> ,generally speaking multistakeholder composed of
>> Civil Society
>> Private Sector,
>> Technical Community including academics
>> Governments
>> In your views and the views other those who repeatedly refer to
>> "Community" do they mean; Global Multistakeholer" as described above.
>> If that is the case  how the " community" fits in that overall
>> description.
>> When there are comments received from «community" have we checked whether
>> all four categories of multistakeholder have commented?
>> Do we treat the comments with equal footing. I know that your are
>> defending the equal rights of the constituency
>> In CSTD you defended that equality of rights for more than 2 hours and
>> finally succeeded to win
>>
>> How we decide whether comments from a limited number of people ( mostly
>> those who comments on everything are representing which of those four
>> categories of community
>>
>> How we have taken into account whether the number of comments is
>> representative of the entire multistakeholder .
>>
>> I give you an example, for the issue of ICANN accountability at one point
>> of time ICANN mentioned based on 17 comments it modified the approach
>> previously submitted.
>>
>> Did we checked whether all four categories of Multistakeholder commented
>> ?
>>
>> Have we checked whether any Government commented or as they are frustrated
>> they did not?
>> What footing criteria were used to conclude on the representativeness of
>> the comments?
>>
>> Did we consider comment made on behalf on a big community with equal
>> footing with comments received from an individual who spoke on behalf of
>> herself or himself?
>>
>> We need to be careful when we refer to the term “ community”
>>
>> Until the time that the constituents of Global Multistakeholder Community
>> is not clearly specified and their footing are not agreed ,it is difficult
>> to associate any serious value to the comment received from a limited
>> number of permanent commenting people which may not representing the
>> community as such.
>>
>>  Best Regards
>>
>> Your friend
>>
>> Kavouss
>>
>>
>>
>>
>>
>> 2015-01-02 16:42 GMT+01:00 Paul Rosenzweig
>> <paul.rosenzweig at redbranchconsulting.com>:
>>> Dear Kavouss
>>>
>>>
>>>
>>> I reply to you privately simply because I think we have pretty much
>>> exhausted our friends on the listserve.  I found your answer fascinating.
>>>  And I think, in the end, the difference lies in the perspectives of our
>>> different worlds.  Where I work (here in Washington DC) if I am going to
>>> have a fight with someone, it is often beneficial to create a public
>>> perception that I am being reasonable and the other fellow is the one who
>>> is being unreasonable – and having the Board say “no” to my question
>>> would help me in that regard.
>>>
>>>
>>>
>>> Best wishes
>>>
>>> Paul
>>>
>>>
>>>
>>>
>>>
>>> **NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
>>>
>>> 509 C St. NE
>>>
>>> Washington, DC 20002
>>>
>>>
>>>
>>> Paul Rosenzweig
>>>
>>> paul.rosenzweig at redbranchconsulting.com
>>>
>>> O: +1 (202) 547-0660
>>>
>>> M: +1 (202) 329-9650
>>>
>>> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>>>
>>> Link to my PGP Key
>>>
>>>
>>>
>>> From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
>>> Sent: Friday, January 2, 2015 9:10 AM
>>>
>>>
>>> To: Paul Rosenzweig
>>> Cc: Seun Ojedeji; <accountability-cross-community at icann.org>
>>> Subject: Re: [CCWG-Accountability] Regarding how bylaw changes are made
>>>
>>>
>>> Dear Paul,
>>> Dear All
>>> I am coming back to reply to your kind responses on which we have major
>>> agreement on the substance but different views on the approaches.
>>> Let me just clarify my points that I raised many times and no answer was
>>> give.
>>>
>>> Currently, there is constitutional and legal mechanism for ICANN
>>> accountability
>>>
>>> On the other hand, there are some sort of optional accountability ( in
>>> form of ATRT Recommendations and comments received from a limited number
>>> of people ( Public Comments )
>>>
>>> However, there is no mechanism at all to verify whether the
>>> responsibilities entrusted to the Board have been properly held or
>>> implemented.
>>>
>>> Moreover, there are not any constitutional (legally adopted) by
>>> stakeholder accountability terms and conditions.
>>>
>>> We have bylaws crafted by board and under the Board authority to modify
>>> and or update
>>>
>>> In my view having more than 40 years of constitutional experience the
>>> Board is no more than an executive entity
>>>
>>> What they execute is AoC and Bylaws .The first one is designed to meet
>>> the NTIA requirement .The second one is a quasi-unilateral provisions
>>> crafted by Board and commented by a limited number of people ( public )
>>> without knowing that whether or not that limited number of people
>>> commented represents the entire multistakeholders ( Civil Society,
>>> Private Sector, Technical Community including Academics and last but not
>>> leased Governments )
>>>
>>> There is no separation of authority between those who establish policy/
>>> Multistakeholders or their legally designated or elected representatives
>>> with appropriate footing and those who implement policies ( ICANN) and in
>>> particular the policy itself ( modified version of AoC plus modified
>>> Bylaws ) Every thing is mixed.
>>>
>>> Currently ICANN is at least is responsible to NTIA for certain actions
>>> and responsible to UNKNOWN Public for certain other actions .Once the
>>> transition is done the entire responsibilities goes to that UNKNOWN
>>> Public without having any authority to scrutinize actions implemented and
>>> no authority to sanction those who did not implement the established
>>> policy
>>>
>>> Now CCWG is making every effort to clarify the situation .We are at the
>>> beginning of the process. In my view, that takes many months if not many
>>> years to do so .
>>>
>>> Now you and those supporting your approach consider that we need to ask
>>> the Board in an upfront approach what they believe implementable and what
>>> believe Un/ Non implementable
>>>
>>> Allow me dear Paul to describe the scenarios.
>>>
>>> We would wish to ask an entity whether or not that entity agrees that we
>>> a) limit its authority) designating or establishing a mechanism for
>>> overnighting their action and c) implement sanctions if they have not or
>>> will not perform their duties  as prescribed by the Policy Terms and
>>> condition
>>>
>>> Now I am asking this simple question
>>>
>>> Do you know any one or any entity wants that a) ,b) and C) individually
>>> and or/ collectively be implemented in her or his regard?
>>>
>>> In this world that we are living no one wants to be limited in authority
>>> nor being held more responsible than  she or he is currently responsible
>>> and more importantly no one which is not under any  sanctioning rules to
>>> be under that rules
>>>
>>> If the answer is yes, then we should not raise any question to them at
>>> all.
>>>
>>> Moreover, does the legislating authority ask the executing authority
>>> which kind of authority sphere or responsibility domain it wishes to
>>> perform its function?
>>>
>>> The answer is no
>>>
>>> The legislator establishes the laws and rules and the executing entity
>>> MUST implement that Law or Rule.
>>>
>>> However, in devising those laws and Rules there is continuing dialogues
>>> between the two CCWG and ICANN Board.
>>>
>>> In summary, in view of the above, we should not raise any such questions
>>> to the Board but continue to exchange views between the Board and CCWG
>>> ,as appropriate
>>>
>>> Kavouss
>>>
>>>
>>>
>>>
>>>
>>> 2015-01-02 9:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:
>>>
>>> Dear Paul,
>>>
>>> Thank you very much in deed to kindly answering my question.
>>>
>>> Yes it helps ( your clarification) .
>>>
>>> I will revert to you in few hours
>>>
>>> Thanks again for your kind answer and analysis
>>>
>>> Kavouss
>>>
>>>
>>>
>>> Sent from my iPhone
>>>
>>>
>>> On 2 Jan 2015, at 00:08, Paul Rosenzweig
>>> <paul.rosenzweig at redbranchconsulting.com> wrote:
>>>
>>> Dear Kavouss
>>>
>>>
>>>
>>> Thank you for this question which is a very sensible one.  Let me try to
>>> clarify what I am trying to accomplish by my proposal.
>>>
>>>
>>>
>>> I am a complete and firm support of Board accountability to the
>>> Community.  That is 100% clear and I think you and I are in firm
>>> agreement on that.
>>>
>>>
>>>
>>> I may, however, not be clear about my method and process.  From my
>>> perspective the strongest accountability would be with a clear Bylaw
>>> limitation on ICANN functionality and a provision for an outside arbiter.
>>>  Both of those changes would require Board approval.  I am not trying to
>>> subordinate the CCWG to the Board.   Far from it – what I am trying to do
>>> is find out as early in the process whether the Board is going to be
>>> willing to agree to subordinate itself to the Community through those
>>> mechanisms.
>>>
>>>
>>>
>>> So, I think the place where you may misunderstand me is at the very end
>>> of your note – where you say “why you want to limit CCWG to just follow
>>> those areas of accountability that Board wishes?”   I think you are
>>> assuming that if the Board said “no” to the questions I was asking that
>>> my reaction would be to say “oh … oh well.  That is OK.  If the Board
>>> won’t agree, we can’t do it.”
>>>
>>>
>>>
>>> My real reaction, in practice, would be exactly the opposite – I would
>>> urge the Community to dig in for an extended discussion with the Board
>>> and use my limited powers of persuasion to rally the community to demand
>>> that the Board changed its mind.  J  And I would probably urge CCWG to
>>> recommend those same things anyway – but at least we would do that
>>> knowing what was going to happen.
>>>
>>>
>>>
>>> Does that help?
>>>
>>> Regards
>>>
>>> Paul
>>>
>>>
>>>
>>> **NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
>>>
>>> 509 C St. NE
>>>
>>> Washington, DC 20002
>>>
>>>
>>>
>>> Paul Rosenzweig
>>>
>>> paul.rosenzweig at redbranchconsulting.com
>>>
>>> O: +1 (202) 547-0660
>>>
>>> M: +1 (202) 329-9650
>>>
>>> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>>>
>>> Link to my PGP Key
>>>
>>>
>>>
>>> From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
>>> Sent: Thursday, January 1, 2015 4:39 PM
>>> To: Paul Rosenzweig
>>> Cc: Seun Ojedeji; accountability-cross-community at icann.org
>>> Subject: Re: [CCWG-Accountability] Regarding how bylaw changes are made
>>>
>>>
>>>
>>> Dear Paul,
>>>
>>> The way you commenting on the matter could have two different
>>> interprétations or leave two different impressions:
>>>
>>> A) You are a firm supporter of accountabilty process when we note your
>>> comments about Mathieu
>>>
>>> B) You wish to raise the question Under discussion to the Board asking
>>> what they wish to see from CCWG and what they do not see from CCWG .The
>>> latter interpretation ,in my view, seems to be subordinating CCWG to the
>>> Board in the sense that we just study, elaborate and recoomend those area
>>> of accountability that Board is comfortable with but not CCWG address the
>>> full picture, objectives, requiremnets of accountability.
>>>
>>> Pls find a coherence between interpretation A) and interpretation B) .In
>>> order words if you are really in favour of addressing the accountability
>>> in a fullflege scope why you want to limit CCWG to just follow those
>>> areas of accountability that Board wishes?
>>> Thank you very much to clarify your position.
>>>
>>> Best Regards
>>>
>>> Kavouss
>>>
>>>
>>>
>>> 2015-01-01 21:35 GMT+01:00 Paul Rosenzweig
>>> <paul.rosenzweig at redbranchconsulting.com>:
>>>
>>> Bruce is a wonderful man.  But we don’t need his opinion, we need a
>>> formal commitment from the Board.  That’s why we need to ask the question
>>> in an official manner.
>>>
>>>
>>>
>>> Indeed, I would posit that if the accountability working group tasked
>>> with ensuring accountability by ICANN is reluctant to even ask the Board
>>> a question then the communities capacity to actually reign in Board
>>> excess when/if it perceives such would be very limited.  If we are so
>>> unwilling to even ask a question, will we be willing to tell the Board
>>> “no.”
>>>
>>>
>>>
>>> In any event, if we choose not to ask this question, then the scope of
>>> WS1 has just expanded to essentially include almost all oversight
>>> mechanisms we might conceivably want – which would, I think, be the wrong
>>> result.
>>>
>>>
>>>
>>> Warm regards
>>>
>>> Paul
>>>
>>>
>>>
>>> **NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
>>>
>>> 509 C St. NE
>>>
>>> Washington, DC 20002
>>>
>>>
>>>
>>> Paul Rosenzweig
>>>
>>> paul.rosenzweig at redbranchconsulting.com
>>>
>>> O: +1 (202) 547-0660
>>>
>>> M: +1 (202) 329-9650
>>>
>>> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>>>
>>> Link to my PGP Key
>>>
>>>
>>>
>>> From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
>>> Sent: Thursday, January 1, 2015 10:09 AM
>>> To: Seun Ojedeji
>>> Cc: accountability-cross-community at icann.org
>>> Subject: Re: [CCWG-Accountability] Regarding how bylaw changes are made
>>>
>>>
>>>
>>> Dear All
>>>
>>> I agree to the term that no one should dictate the CCWG.
>>>
>>> Still why there is a need that we  raise any such question to the Board,
>>>
>>>  Bruce is quite active and requested to continue the Liaison
>>>
>>> Kavouss
>>>
>>>
>>>
>>>
>>>
>>> Sent from my iPhone
>>>
>>>
>>> On 1 Jan 2015, at 15:28, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:
>>>
>>> Hi Bruce,
>>>
>>> Thanks for this information, I will then suggest that this WG determine
>>> if those steps will indeed be appropriate for us especially since WS1 is
>>> more of a perquisite to transition. One would expect some adjustments on
>>> timing and wording rights to be made in the process, also board voting
>>> rights in this particular process may need to be agreed upon. It will not
>>> be encouraging to have  implementation stopped on the basis of no 2/3
>>> board majority....time utilization is an important factor in all these.
>>> So the earlier we involve board (without having them dictate for us) the
>>> better.
>>>
>>> Regards
>>> sent from Google nexus 4
>>> kindly excuse brevity and typos.
>>>
>>> On 1 Jan 2015 04:55, "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
>>> wrote:
>>>
>>> Hello Seun,
>>>
>>> >>  I think writing to board to know how it will treat the WG outcome
>>> >> especially when some of it's implementations will require by-law
>>> >> modifications that further involve the ICANN community in decision
>>> >> making process may be useful.
>>>
>>> In terms of the process for making bylaws changes, changes have
>>> previously been made to accommodate recommendations from the review teams
>>> associated with the work of the Accountability and Transparency Review
>>> Teams (ATRT)  https://www.icann.org/resources/pages/atrt-2012-02-25-en .
>>>
>>> Any archive of all previous versions of the bylaws is available here:
>>> https://www.icann.org/resources/pages/archive-bc-2012-02-25-en
>>>
>>> Based on our current practice I would expect the process to be as
>>> follows:
>>>
>>> - Board accepts recommendations from the CCWG
>>>
>>> - General Counsel's office prepares specific text to change in the
>>> bylaws
>>>
>>> - proposed bylaws changes are put out for public comment  (45 days)
>>>
>>> - Board then votes on the bylaws amendments  - a 2/3 majority of the
>>> Board is required to make a bylaw change
>>>
>>> If there is significant community comments against the proposed bylaws
>>> language - then a new draft of the bylaws would be put out for public
>>> comment that is consistent with the recommendations from the CCWG.
>>>
>>> Regards,
>>> Bruce Tonkin
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
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>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>> _______________________________________________
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>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>
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-- 
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