[PC-NCSG] need for independent evaluation with ombudsman

William Drake wjdrake
Wed Mar 5 13:35:50 EET 2014 

A priori I agree with Amr.  Have people read the strategy panel reports?  I?ve only read the Vint panel?s.   Do you find in these reports proposals to circumvent the GNSO?s PDP process?  If so there?s a case for Council involvement, but if the argument is that they gut the entire bottom-up MSM of ICANN including all of its community, then I would indeed think the SO-AC would be the place for that.

Best

Bill


On Mar 4, 2014, at 8:21 PM, Amr Elsadr <aelsadr at EGYPTIG.ORG> wrote:

> Hi Avri,
> 
> My point is that the panels aren't something that solely affects the GNSO. They affect the entire bottom-up MSM of ICANN including all of its community. That?s why I feel this is an initiative more suitable to come out of a broader group than one only representing the four SGs of the GNSO.
> 
> If the panels were about gTLD policy, then that would be a different issue requiring a different response.
> 
> Still?, that doesn?t mean I think the idea is, in principle, a bad one. I just seem to disagree with you (and others) on the best way to go about getting it done.
> 
> Thanks.
> 
> Amr
> 
> On Mar 4, 2014, at 7:44 PM, Avri Doria <avri at acm.org> wrote:
> 
>> hi,
>> 
>> We disagree.
>> 
>> I think the GNSO should speak up about the circumvention and offer the Board our recommendation on what they can do with the panels and the CEO who ordered them without asking first.
>> 
>> Besides I think it is a great idea.
>> 
>> avri
>> 
>> 
>> On 04-Mar-14 18:37, Amr Elsadr wrote:
>>> Hi,
>>> 
>>> I never thought the proposal was bad in principle. I just didn?t see how
>>> or why it should be a GNSO Council motion. I still don?t. I recommended
>>> the discussion be moved to the SO/AC leadership list (even with an
>>> informal recommendation from Council), and perhaps a CCWG that can
>>> develop a charter with input from all the different groups to see it
>>> through.
>>> 
>>> Was I unclear on that? I hope not.
>>> 
>>> Thanks.
>>> 
>>> Amr
>>> 
>>> On Mar 4, 2014, at 7:19 PM, Avri Doria <avri at acm.org
>>> <mailto:avri at acm.org>> wrote:
>>> 
>>>> Hi,
>>>> 
>>>> Yeah Amr, and I support that proposal, though I saw you didn't.
>>>> 
>>>> avri
>>>> 
>>>> On 04-Mar-14 18:12, Amr Elsadr wrote:
>>>>> Hi,
>>>>> 
>>>>> There is a proposed initiative, ironically being championed by the BC,
>>>>> to crowdsource feedback on the CEO?s (Fadi?s) performance, specifically
>>>>> on his circumvention of the bottom-up MS process. If for any reason the
>>>>> ombudsman option doesn?t work out, we should draw attention to the TM+50
>>>>> issue there. We should probably do that even if the ombuddy comes
>>>>> through for us. :)
>>>>> 
>>>>> In any case, yeah?, go for it, Robin. :)
>>>>> 
>>>>> Thanks.
>>>>> 
>>>>> Amr
>>>>> 
>>>>> On Mar 4, 2014, at 6:38 PM, Avri Doria <avri at acm.org
>>>>> <mailto:avri at acm.org>
>>>>> <mailto:avri at acm.org>> wrote:
>>>>> 
>>>>>> makes sense to me too.
>>>>>> 
>>>>>> On 04-Mar-14 17:23, Stephanie Perrin wrote:
>>>>>>> Makes sense to me.  Not that any of this makes any sense.
>>>>>>> Mind-boggling, and as Avri said today on another topic, makes it hard
>>>>>>> to defend this model of Internet governance.
>>>>>>> SP
>>>>>>> On Mar 4, 2014, at 12:18 PM, Robin Gross <robin at ipjustice.org
>>>>>>> <mailto:robin at ipjustice.org>
>>>>>>> <mailto:robin at ipjustice.org>
>>>>>>> <mailto:robin at ipjustice.org>> wrote:
>>>>>>> 
>>>>>>>> Dear EC Members:
>>>>>>>> 
>>>>>>>> It would seem the best course for NCSG is to now file this request for
>>>>>>>> an independent evaluation with ICANN's ombudsman over the issue of
>>>>>>>> board-staff circumventing the process stated in ICANN's bylaws for
>>>>>>>> making policy.  I propose we now do this.  Ed Morris is willing to
>>>>>>>> continue to work with me to see this issue through so he and I will
>>>>>>>> begin to prepare this request and perhaps we can make some progress in
>>>>>>>> Singapore on this issue.
>>>>>>>> 
>>>>>>>> Thanks,
>>>>>>>> Robin
>>>>>>>> 
>>>>>>>> Begin forwarded message:
>>>>>>>> 
>>>>>>>>>> *
>>>>>>>>>> From: *Chris LaHatte <chris.lahatte at icann.org
>>>>>>>>>> <mailto:chris.lahatte at icann.org>
>>>>>>>>>> <mailto:chris.lahatte at icann.org>
>>>>>>>>>> <mailto:chris.lahatte at icann.org>>
>>>>>>>>>> *Subject: **RE: NCSG Mediation TM 50 Issue*
>>>>>>>>>> *Date: *February 9, 2014 3:54:23 PM PST
>>>>>>>>>> *To: *Robin Gross <robin at ipjustice.org <mailto:robin at ipjustice.org>
>>>>>>>>>> <mailto:robin at ipjustice.org><mailto:robin at ipjustice.org>>
>>>>>>>>>> 
>>>>>>>>>> Hi Robin
>>>>>>>>>> Thank you for the reply. I believe the independent evaluation may be
>>>>>>>>>> the best way to proceed on this matter, because if there is nothing
>>>>>>>>>> further to discuss on the part of ICANN, then a mediation may be
>>>>>>>>>> difficult. I was keen to promote this idea, if for no other reason
>>>>>>>>>> than enabling each party to have a better understanding of their
>>>>>>>>>> views, even if they did not agree. However ICANN legal were just not
>>>>>>>>>> enthusiastic. I certainly can proceed to such an evaluation is that
>>>>>>>>>> would involve an assessment of whether the procedure followed was
>>>>>>>>>> fair, bringing this into my jurisdiction. I have suggested this to
>>>>>>>>>> the legal Department and it may be the best way to take the next
>>>>>>>>>> step. Could I trouble you to make a submission along those lines, to
>>>>>>>>>> the effect that your view is that ICANN did not follow its corporate
>>>>>>>>>> bylaws, and I will ask for a similar submission from legal. Once I
>>>>>>>>>> have these I can consider the matter and make a determination.
>>>>>>>>>> Please contact me if you need to discuss this further.
>>>>>>>>>> Regards
>>>>>>>>>> Chris LaHatte
>>>>>>>>>> Ombudsman
>>>>>>>>>> Bloghttps://omblog.icann.org/
>>>>>>>>>> Webpagehttp://www.icann.org/en/help/ombudsman
>>>>>>>>>> <webpagehttp://www.icann.org/en/help/ombudsman>
>>>>>>>>>> Confidentiality
>>>>>>>>>> All matters brought before the Ombudsman shall be treated as
>>>>>>>>>> confidential.  The Ombudsman shall also take all reasonable steps
>>>>>>>>>> necessary to preserve the privacy of, and to avoid harm to, those
>>>>>>>>>> parties not involved in the complaint being investigated by the
>>>>>>>>>> Ombudsman.The Ombudsman shall only make inquiries about, or advise
>>>>>>>>>> staff or Board members of the existence and identity of, a
>>>>>>>>>> complainant in order to further the resolution of the complaint.
>>>>>>>>>> The Ombudsman shall take all reasonable steps necessary to ensure
>>>>>>>>>> that if staff and Board members are made aware of the existence and
>>>>>>>>>> identity of a complainant, they agree to maintain the confidential
>>>>>>>>>> nature of such information, except as necessary to further the
>>>>>>>>>> resolution of a complaint
>>>>>>>>>> *From:*Robin Gross [mailto:robin at ipjustice.org]
>>>>>>>>>> *Sent:*Saturday, February 08, 2014 11:20 AM
>>>>>>>>>> *To:*Chris LaHatte
>>>>>>>>>> *Cc:*Milton Mueller; Edward Morris; Rafik Dammak; Steve Crocker;
>>>>>>>>>> Raymond Plzak
>>>>>>>>>> *Subject:*Re: NCSG Mediation TM 50 Issue
>>>>>>>>>> Thank you, Chris.
>>>>>>>>>> It is disappointing that ICANN legal dept takes the position that
>>>>>>>>>> its decisions cannot be changed, even if found to violate the
>>>>>>>>>> organization's bylaws.  We want an evaluation of what the bylaws
>>>>>>>>>> require of ICANN when making policy compared with how this policy
>>>>>>>>>> was adopted.  An evaluation that depends on the guidance of ICANN
>>>>>>>>>> legal dept., as all evaluations have done just become circular.
>>>>>>>>>> This issue has not been before an independent evaluator and that is
>>>>>>>>>> necessary to receive any kind of independent judgement.  ICANN
>>>>>>>>>> legal's reassurance that it 'can do what it did and even if it
>>>>>>>>>> can't, it's too late to do anything about it now' underscores the
>>>>>>>>>> circular problem we are having and have been for a year now on this
>>>>>>>>>> issue.  If policies that violate the bylaws REALLY can't be changed
>>>>>>>>>> because they've already been adopted, then ICANN has an even bigger
>>>>>>>>>> accountability issue on its hands.
>>>>>>>>>> We would like to go ahead with the mediation and try to get an
>>>>>>>>>> independent evaluation from you on the key issue in question:
>>>>>>>>>> violation of corporate bylaws.  What a proper remedy would be is a
>>>>>>>>>> different question that I am happy to explore further.  But as I
>>>>>>>>>> have said before, we would like to have a ruling on whether the
>>>>>>>>>> corporate bylaws were violated in the adoption of this policy.  Are
>>>>>>>>>> you able to investigate this issue even if ICANN legal does not wish
>>>>>>>>>> for it to continue?
>>>>>>>>>> Thanks,
>>>>>>>>>> Robin
>>>>>>>>>> On Jan 30, 2014, at 4:54 PM, Chris LaHatte wrote:
>>>>>>>>>> 
>>>>>>>>>> 
>>>>>>>>>> Hi Robin
>>>>>>>>>> I have finally had a lengthy discussion with John Jeffries and Amy
>>>>>>>>>> Stathos about this issue. The position is that they are unsure what
>>>>>>>>>> they can offer by way of any concession at a mediation. As you may
>>>>>>>>>> have predicted, they take the strong view that this was
>>>>>>>>>> implementation and that there was adequate presentation of the case
>>>>>>>>>> for an appropriate level for the Trademark Clearinghouse. Their view
>>>>>>>>>> is that the decisions cannot now be unravelled and therefore they
>>>>>>>>>> are unsure as to what can be offered at a mediation. After some
>>>>>>>>>> discussion, and which I expressed my view that at least a principal
>>>>>>>>>> aim should be to avoid conflict and to avoid the need for an
>>>>>>>>>> Independent Review Panel, it was suggested that I should ask what
>>>>>>>>>> your community would want out of such a mediation, given their view
>>>>>>>>>> is that it is not possible to revisit the decisions at this stage.
>>>>>>>>>> So if you can help me on this, I would be grateful.
>>>>>>>>>> Regards
>>>>>>>>>> Chris LaHatte
>>>>>>>>>> Ombudsman
>>>>>>>>>> Bloghttps://omblog.icann.org/
>>>>>>>>>> Webpagehttp://www.icann.org/en/help/ombudsman
>>>>>>>>>> <webpagehttp://www.icann.org/en/help/ombudsman>
>>>>>>>>>> Confidentiality
>>>>>>>>>> All matters brought before the Ombudsman shall be treated as
>>>>>>>>>> confidential.  The Ombudsman shall also take all reasonable steps
>>>>>>>>>> necessary to preserve the privacy of, and to avoid harm to, those
>>>>>>>>>> parties not involved in the complaint being investigated by the
>>>>>>>>>> Ombudsman.The Ombudsman shall only make inquiries about, or advise
>>>>>>>>>> staff or Board members of the existence and identity of, a
>>>>>>>>>> complainant in order to further the resolution of the complaint.
>>>>>>>>>> The Ombudsman shall take all reasonable steps necessary to ensure
>>>>>>>>>> that if staff and Board members are made aware of the existence and
>>>>>>>>>> identity of a complainant, they agree to maintain the confidential
>>>>>>>>>> nature of such information, except as necessary to further the
>>>>>>>>>> resolution of a complaint
>>>>>>>>> 
>>>>>>>> 
>>>>>>>> _______________________________________________
>>>>>>>> PC-NCSG mailing list
>>>>>>>> PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>>> <mailto:PC-NCSG at ipjustice.org><mailto:PC-NCSG at ipjustice.org>
>>>>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>>> _______________________________________________
>>>>>>> PC-NCSG mailing list
>>>>>>> PC-NCSG at ipjustice.org
>>>>>>> <mailto:PC-NCSG at ipjustice.org><mailto:PC-NCSG at ipjustice.org>
>>>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>> 
>>>>>> 
>>>>>> _______________________________________________
>>>>>> PC-NCSG mailing list
>>>>>> PC-NCSG at ipjustice.org
>>>>>> <mailto:PC-NCSG at ipjustice.org><mailto:PC-NCSG at ipjustice.org>
>>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>> 
>>>> 
>>>> _______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> 
>> 
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> 
> _______________________________________________
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***********************************************
William J. Drake
International Fellow & Lecturer
  Media Change & Innovation Division, IPMZ
  University of Zurich, Switzerland
Chair, Noncommercial Users Constituency, 
  ICANN, www.ncuc.org
william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
  www.williamdrake.org
***********************************************

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