[Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion

Tue Oct 4 23:11:29 UTC 2016

The GNSO Council position is responsible, not reprehensible.

And what you label "the incumbent system" is a very large swath of the ICANN community - with this Resolution representing the consensus position of the contracted parties, commercial stakeholder group, and non-commercial stakeholder group. Accountability at any given moment means accountability to the community as it exists at that point in time.

The GNSO position is advisory and not controlling. Under the adopted budget control processes for WS2 CCWG-ACCT matters, it is the Legal Committee, subject to subsequent approval by the Board (which has fiduciary duties to the corporation), that passes judgment on requests for expenditures on outside counsel advice, as well as any request to increase the overall budget beyond the $1.4 million allocated at present.

The Jurisdiction subgroup is presently exploring whether there are any 'gaps' between the accountability enforcement powers and California law, with  a developing consensus that if there are not then exploring alternate organizational legal jurisdictions for ICANN would not be a prudent use of time or money. (And there are unlikely to be any gaps of significance, given the extreme vetting on this question by outside counsel at the time the measures were developed.)

Anyone is free to participate in the Jurisdiction subgroup and make their best case on any issue being considered by it. But no one is guaranteed a consensus that supports their favored outcome. That's democracy, not hegemony.

Philip S. Corwin, Founding Principal
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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Tuesday, October 04, 2016 4:05 AM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion

I cannot claim to understand the role of GNSO Council in terms of budget for various ICANN activities, but a reading of the below bring a couple of points to my mind:

1. It is unfortunate that, after spending millions on legal advice and other such areas in work stream 1, at which time the agenda for movement in certain directions was very much the will of what I would merely call here as the 'dominant interests', we begun to immediately hear budgetary concerns when work stream 2 started to take shape (after in any case having pushed 'uncomfortable' issues on to this works stream 2).

2. Now, from the wording of GNSO Council's resolution below, one sees further proof of use of fiscal powers by the incumbent system to stymie processes mandated to address constitutional issues (which definitionally could threaten the existing configurations of the 'system') . Very much like what the US Congress tried to do to the transition process. This is a hugely inappropriate and undemocratic thing, and should be looked down upon and condemned. But apparently it is bad if certain people do it (Congress to the IANA process) but good if others do it (GNSO Council to the determination of the jurisdiction issues).  But that is how power and hegemony works.

I strongly oppose any efforts by the incumbent system to dictate to, what to me is, a constitutional process on what the latter may or may not do -- much worse to hold financial threats. Completely reprehensible.

parminder

On Tuesday 04 October 2016 01:05 PM, matthew shears wrote:

A useful parameter for our work - thanks.

On 04/10/2016 07:03, Greg Shatan wrote:

I would like to draw this subgroup's attention to the motion below, which was adopted by the GNSO Council on September 29.  In particular, please take a look at paragraph 4 of the "Whereas" clauses and paragraph 5 of the motion.

Greg

---------- Forwarded message ----------
From: Bernard Turcotte <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>>
Date: Tuesday, October 4, 2016
Subject: [CCWG-ACCT] Fwd: FW: Adopted motion
To: Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>

From: Marika Konings
Sent: Thursday, September 29, 2016 11:33 PM
To: Glen de Saint Géry <Glen at icann.org<javascript:_e(%7B%7D,'cvml','Glen at icann.org');>>
Subject: Adopted motion

Motion - GNSO Validation of CCWG-Accountability Budget Request

Made By: James Bladel
Seconded by: Julf Helsingius, Keith Drazek

WHEREAS,

1.      Per its Charter, the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget and cost-control processes for the CCWG-Accountability activities for FY17, and has also developed a historical analysis of all the transition costs to date (see https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf).

2.      The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST. This request for validation was received on 23 June.

3.      Following review and discussion during ICANN56, the GNSO Council requested a webinar on this topic which was held on 23 August (see transcript at https://gnso.icann.org/en/meetings/transcript-ccwg-accountability-webinar-23aug16-en.pdf, recording at http://audio.icann.org/gnso/gnso-ccwg-accountability-webinar-23aug16-en.mp3 and AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/).

4.     The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not likely support revisiting the topic of the jurisdiction of ICANN's organization in that such exploration would likely require substantial independent legal advice on alternative jurisdictions and their potential impact on the text and structure of ICANN's Bylaws.

5.      The GNSO Council has discussed and reviewed all the relevant materials.

RESOLVED,

1.      The GNSO Council hereby accepts the proposed CCWG-Accountability FY17 budget, as well as the cost-control processes presented in conjunction with the CCWG budget, expects the working groups to be restrained and judicious in their use of outside legal assistance, and believes that the Legal Committee should exercise reasonable and effective controls in evaluating requests for outside legal assistance and should approve them only when deemed essential to assist a working group to fully and objectively understand and develop a particular course of action for which the group has reached a substantial degree of consensus and requires legal advice on its risks and feasibility.

2.      The GNSO Council expects to receive regular updates on actual expenditures as tracked against this adopted budget, and reserves the right to provide further input on the budget allocation in relation to the CCWG-Accountability related activities.

3. The GNSO Council expects ICANN staff, including its office of General Counsel, to provide the assistance requested by the CCWG and its working groups in an expeditious, comprehensive, and unbiased manner.

4.      The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or requests for additional funding beyond said budget should be recommended by the Legal Committee only when deemed essential to completion of the CCWG's work and objectives. .

5.      It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1,  would not likely be supported by this projected budget and, further, that such inquiry should not be undertaken at this time because the new accountability measures are all premised and dependent on California jurisdiction for their effective operation, and any near-term changes in organizational jurisdiction could be extremely destabilizing for ICANN and its community.

6.      The GNSO Council requests the GNSO Secretariat to communicate this resolution to the CCWG-Accountability Chairs, and to the office of the ICANN CFO.

Marika Konings
Senior Policy Director & Team Leader for the GNSO, Internet Corporation for Assigned Names and Numbers (ICANN)
Email: marika.konings at icann.org<javascript:_e(%7B%7D,'cvml','marika.konings at icann.org');>

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Matthew Shears

Global Internet Policy and Human Rights

Center for Democracy & Technology (CDT)

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