On Mon, 31 Aug 2015, David Post wrote:
> At 10:46 AM 8/31/2015, Mueller, Milton L wrote:
>>
>> From: David Post [mailto:[log in to unmask]]
>> DP: I agree with much, and maybe all, that you say. But I am curious as
>> to why you're as concerned as you are about the GACs's 'advisory power'
>> when the Bylaws now state (a) that the Board's powers are limited to
>> implementing consensus policies, and (b) that the Board has no power to act
>> outside of that limitation,
>>
>> MM: OMG David, those supposed limitations (consensus policies) have been in
>> place since 1998, they mean absolutely nothing. ICANN board just passes
>> whatever policies they want, based on whatever constellation of political
>> pressures they are feeling at the moment (often via GAC), and call it
>> "consensus." Do you think there was consensus on the new RAA, or do you
>> think USG and law enforcement, via GAC, pressured ICANN staff/board to make
>> those changes and they were then imposed on businesses desperate to start
>> implementing the new TLDs?
>
> DP: Of course I completely agree: the limitation regarding consensus
> policies has done absolutely nothing to curb Board power. But that's not
> because it "means absolutely nothing" - I have a pretty good idea what it
> means, I think you have a pretty good idea what it means, and I think most
> people in the community have a pretty good idea what it means. The
> consensus limitation has done nothing, not because it doesn't mean anything,
> but because it was completely unenforceable by anyone other than the Board
> itself. I THOUGHT THE POINT OF THE RECONSTITUTED IRP WAS TO CURE THIS
> PROBLEM. AM I WRONG?
>
> that's why I had part c in what I initially wrote: My understanding is that
> the CCWG proposal calls for the Bylaws to be modified to make it clear that:
>
> (a) the Board's powers are limited to implementing consensus policies,
> (b) the Board has no power to act outside of that limitation, AND
> (c) the IRP is empowered to declare Board actions outside of these limits
> invalid
This thread has been very well argued and informative on a complicated
area that will have great and long lasting consequences.
Do I have it correct that the IRP is ICANN's Independent Judiciary with the
authority to determine if/when the Board has acted outside the power and
reverse (at presumeably any unlimited future time) the action...thus
the IRP is the concensus stakeholders' mechanism to appeal to a
"Supreme Court"?
Is it correct to state that up till now the Boards actions have been final/
without appeal due to respect for this ultimae power of the Board?
If the IRP declares a Board action invalid, ICANN still remains a corporation
so can the Board declare an emergency and take "marshall law" power on the
basis that ivalidating a critical (in the Board's eyes) operational directive
would cause irreprable harm/damage to the Internet?
So how does the IRP enforce it's finding, and does the IRP have the ultimate
power to impose a (possibly temporary) dictate to ameliorate an emergency?
-ron
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