I agree with you both.  And there are many insightful comments that provide constructive criticisms and suggested ways forward submitted by a significant number of community members in the public comment forum (Rafik just cited many of them).  The board's comment, however, is not one of the more helpful comments, and given its inherent conflict of interest in wanting to remain in total control and unaccountable to the community, it comes as no surprise, and will be evaluated in that light by the CCWG.  We do have a lot of work to do, and I don't expect to spend an inordinate amount of time on the board's comment relative to the others.

Best,
Robin


On Sep 14, 2015, at 9:54 AM, Mueller, Milton L wrote:

> David, you are correct, the inversion is there.. But isn’t this the shoe we have been waiting to hear drop for about a year? A predictable attempt to wriggle out of real accountability, which have been continuous since 1999.  I don’t think we should take the board counter-proposal all that seriously. Oh, I am sorry, it’s not a “counter proposal” it’s a, umm, ah, er, _suggested improvement_...
>  
>  
>  
>  
> From: NCSG-Discuss [mailto:[log in to unmask]] On Behalf Of David Post
> Sent: Monday, September 14, 2015 10:30 AM
> To: [log in to unmask]
> Subject: Re: [NCSG-Discuss] [CCWG-ACCT] Board comments now in
>  
> 
> My apologies if someone has pointed this out already, but there's one feature of the Board's proposal that is very disturbing.  The memo describing the proposed enforceability regime [ https://comments.ianacg.org/pdf/submission/submission121.pdf] outlines the process:  
> 
> "4. to initiate formal MEM proceedings, the agreed number of SOs and ACs must support the petition. If there is sufficient support amongst the SOs and ACs then representatives of those supporting SOs and ACs would become the MEM Issue Group. 
> 
> 5. The MEM Issue Group would then submit a Request for Arbitration to the Standing Panel alleging a violation of at least one Fundamental Bylaw ..."
> 
> This completely inverts (and subverts) the nature of the process we have been discussing for months.  Instead of a Board that (a) is empowered to act by stakeholder consensus, and is (b) kept in check by an IRP process in which its actions can be challenged by anyone materially affected by the action (or by any of the SOs and ACs, acting on its own), the new proposal turns that upside down:  Under the proposal, stakeholder consensus is required to BLOCK Board action - the challenge can go forward only if "the agreed number of SOs and ACs" support the challenge .
> 
> That is a very fundamental change in the relationship between the stakeholders and the Board, and not for the better. It makes it MUCH more difficult to challenge Board action that is inconsistent with the Bylaws.  
> 
> And maybe I'm missing something, but I don't get how this new "MEM Arbitration" scheme doesn't completely destroy the IRP.  The Board says 
> 
> "Establishment of the MEM is not intended to replace existing IRP procedures. The MEM provides a legally enforceable arbitration decision on violations of ICANN’s Fundamental Bylaws."
> 
> It may not have been intended, but surely this task was precisely the one that the IRP was supposed to take on, and now it's being off-loaded to some arbitration system.  How does that "not replace" the IRP?
> 
> David
>        
> 
> 
> 
> At 09:49 AM 9/12/2015, Carlos Raul wrote:
> 
> 
> Chris, Paul
> 
> It is my personal view that since ATRT1 the community has been asking for a better specific  "rationale" of Boards decisions. Not longer or shorter, but BETTER and coming from the Board (or Committee) itself (consensus or not);and NOT from Staff (outside counsel) si the community has a better understanding of the decisions (or proposal).
> 
> This question to me in this case has been framed in terms of "enforcibilty" and the risk of capture of the single member as per the memo. I look forward to my next half day in airports and flights  to look for the RATIONALE of these two very significant arguments.
> 
> Have a nice weekend you both.
> 
> Carlos Raúl 
> On Sep 12, 2015 9:31 AM, "Paul Rosenzweig" < [log in to unmask]> wrote:
> With respect Chris, I am deeply serious.  The board’s commitment to the multi-stakeholder model is not.
> Â
> And as for “size” when it reflects depth of analysis, yes … it usually does matter.  Glibness is easy when brevity is the goal.  Thoughtful consideration requires extended analysis. 
> 
> Â
> A CCWG process that has gone on for nearly a year and involved 100s of members of the community in meeting taking place across the globe and tens of thousands of man hours does, actually, produce a proposal that has the consensus of the Community.  The Board’s brief “we don’t like it and here is our three page counter proposal” does not deserve our respect. 
> Â
> Paul
> Â
> Paul Rosenzweig
> 
> [log in to unmask]
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> 
> Link to my PGP Key
> Â
> Â
> From: Chris Disspain [ mailto:[log in to unmask]]
> Sent: Saturday, September 12, 2015 8:20 AM
> To: Paul Rosenzweig < [log in to unmask]>
> Cc: Accountability Cross Community < [log in to unmask]>
> Subject: Re: [CCWG-ACCT] Board comments now in
> Â
> Ah…sso, clearly, size does matter….to some…..
> Â
> With respect, you can’t be serious.
> Â
> Â
> Cheers,
> Â
> Chris
> Â
> 
> On 12 Sep 2015, at 21:50 , Paul Rosenzweig < [log in to unmask]> wrote:
> Â
> Dear Seun
> Â
> With respect, you can’t be serious.  The Board’s alternate proposal is a 3-page memo.  The CCWG’s proposal is an integrated 180 page documents which, even if you limit yourself to the parts directly related to the Single Member model (not including stress tests, or the fundamental bylaws themselves) is roughly 8-10x as long (depending on how you count it) ….
> Â
> Paul
> Â
> Paul Rosenzweig
> 
> [log in to unmask]
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> 
> Link to my PGP Key
> Â
> Â
> From:Â Seun Ojedeji [mailto:[log in to unmask] ]Â
> Sent:Â Friday, September 11, 2015 9:40 PM
> To:Â Jordan Carter <[log in to unmask] >
> Cc:Â Accountability Cross Community < [log in to unmask]>
> Subject:Â Re: [CCWG-ACCT] Board comments now in
> Â
> Hi Jordan,
> I don't think there is so much details to develop than what we currently have with the sole member (which by the way also requires a lot of details).
> I think the main question we need to ask the CCWG legal is whether the leadership of the SO/AC(for instance) can indeed have legal standing under the California law. Every other aspect of MEM seem to make sense to me and just the clarity on the possibility of enforcement is what lawyers needs to come in on.
> Perhaps it's also good to note that what is being proposed by board has been discussed one way or the other in the past but somehow we did not follow-up on the thoughts up.
> Regards
> Sent from my Asus Zenfone2
> Kindly excuse brevity and typos.
> hi all
> Â
> You may be interested to read the comments from the ICANN board which have now been lodged:
> Â
> 
> http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00045.html
> Â
> I'd draw your attention to the cover note / summary and to the memo on the MEM.
> Â
> It's good to see some concrete proposals from the Board to take into account as we refine the proposal.
> Â
> An initial observation - there is a lot of detail that would need to be developed if the alternative proposal was to be complete enough to undergo stress testing, based on an initial scan.
> 
> Â
> Happy reading!
> Â
> Cheers
> Jordan 
> 
> 
> --Â
> Jordan Carter
> Chief Executive, InternetNZ
> 
> +64-21-442-649Â |Â [log in to unmask]
> Sent on the run, apologies for brevity
> 
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