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