January 2015 - Accountability-Cross-Community

[CCWG-Accountability] Accountability Definitions and scoping
by Mathieu Weill Feb. 8, 2015

Feb. 8, 2015

Dear Colleagues, Please find attached a document drafted by the co-Chairs intended to provide baseline definitions for our work. It is designed to address some of the early questions we raised such as to whom should Icann be accountable ? What is the purpose of Icann's accountability ? or what is accountability ? We provide the document for your reading before the meeting but I will introduce the document during our call tomorrow, and comments will be welcome during the call or after on this email thread. We are well aware of the importance of the choice of words in the definitions and of their consequences for guiding the work of our group going forward. This document is a strawman, so feedback in the form of proposed edits will be much appreciated. Best, -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Requirements based on latest discussions
by Mathieu Weill Feb. 3, 2015

Feb. 3, 2015

Dear Colleagues, Over the last 10 days, several threads took place discussing member or delegate options, including very relevant insights and ideas. At the same time, our Work Parties 1 & 2 are just getting formed, so I felt we were running the risk of not making the most of these discussions. I have created a wiki page in an attemps to sum up, in terms of requirements, the ideas that were exchanged in these threads, and that should form an input to WP1 & WP2. I have probably missed some of the ideas exchanged, and maybe was not able to capture some of these right. But I would suggest we try to elaborate on this, and then hand this on to the WPs. Please feel free to add & comment. This is the link to the doc : https://community.icann.org/x/JwQdAw Best, -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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The big test of effective accountability
by Kieren McCarthy Feb. 3, 2015

Feb. 3, 2015

Hello all, I've been giving a lot thought to effective accountability of ICANN and came across an idea that I don't think has been properly considered and which may make the difference between getting it right this time or spending the next decade fighting over yet more iterations of more structures and processes. And that is: human judgement. Namely that we have to acknowledge and agree upon and protect the concept of human judgement within accountability of ICANN. Currently ICANN is a slave to process and legal judgement. Everything goes first through process. If one process fails, there is another process to go through. If that fails, another process. If you run out of processes, you create a new process (as happened most famously with the ICM Registry independent review win, and with the GAC advice / ICANN Board impasse). Tied in with this process-over-decision approach is the fact that everything goes down a legal and legalistic route. The further down a path something goes - which almost always means that a wrong decision has been made - the more legalistic it becomes. Pretty soon the actual point and argument is almost entirely lost. This is clear in minutes of Board meetings in ICANN. As the group approaches an actual decision, the information around it, perversely, grows shorter and more vague. This is solely because of the lawyer mindset. What should happen is that information becomes clear and more plentiful. This legalistic approach also rapidly becomes prosecutorial. Rather than talking through a compromise or reaching understanding between parties it becomes more and more of a fight. ICANN corporate grows increasingly aggressive; the other side either drops out or is forced to fight to the bitter end. The end result is that everyone loses trust in ICANN. It is seen to be protecting only itself rather than looking out for the broader public interest. Just look at the recent Reconsideration Committee decision over dot-gay. Yes, it has asked for a re-evaluation but on the most narrow terms. Nearly all of dot-gay's complaints were dismissed in purely legalistic terms, rather than human judgement. The process was followed. Therefore it is legally justifiable. Therefore we will not consider anything outside of that because it might represent a legal threat. But if you take the legal goggles off, the dot-gay community decision was clearly a poor one. And so it should be possible to look at what happened and say: there was a mistake here, let's fix it. It gets to the point where ICANN is afraid to admit mistakes because it sees everything in terms of legal risk. The tail waking the dog. This also happened to an absurd degree with dot-inc, dot-llc and dot-llp - where the company had to go and get an emergency panelist to force ICANN to halt the auction for the domains while its complaints were considered. This is what happens if you do not allow for human judgement in a process - it becomes increasingly difficult and rancorous and legal. I would argue that legal arguments should be used only where human communication has failed to achieve resolution. But in ICANN, the legal approach comes first and as a result any attempt to achieve human communication is quickly excluded. And before all the lawyers start jumping in: the legal system itself has huge in-built (and protected) human judgement systems. Juries are the best example. They can listen to legal arguments, they can even be directed by judges, but ultimately they get to made a human decision based on their own considerations (and biases). Judges also are hugely human in their judgement. They decide issues based on what they think of the defendant - and often the lawyers. The problem with ICANN is we have the worst of both worlds. The Board sits as the judge and jury. There is very little human element of judgement before the case ends up in a legal process, and there is almost no human element within that legal process. So if we want to see what I think will look like real accountability to the internet community, it will be to build - and protect - human processes, where people are get to make decisions using the facets of intuition, reason, compassion and understanding. Rather than view everything as a threat to be defended against, ICANN needs to view its community as exactly that - a community. My two (six) cents. Kieren

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Notes-Recordings-Transcript links for CCWG ACCT #9 27 January 19:00 UTC
by Brenda Brewer Feb. 2, 2015

Feb. 2, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT #9 call on 27 January will be available here: https://community.icann.org/pages/viewpage.action?pageId=51414998 Notes 1/27: Audio-only -- Jonathan Zuck Please contact Grace if you need help with your SOI CWG update & joint statement * Chairs' Statement out of F2F (published on 23 January): <https://www.icann.org/news/announcement-2015-01-23-en> https://www.icann.org/news/announcement-2015-01-23-en * Joint Statement published on 26 January: <https://www.icann.org/news/announcement-2015-01-26-en> https://www.icann.org/news/announcement-2015-01-26-en * CWG reponse to "Accountability Issues" Document has been sent to Avri for final check before sending * Response is public and can be passed on WS1 requirements : organizing further work Two groups (mailing lists are set up): * WP1: Review & Redress (coordinated by Becky Burr). * WP2: Community Empowerment (coordinated by Jordan Carter) Two key deliverables for WP1 and WP2: * Scoping document based on WS1 requirements coming out of Frankfurt * Identification of key underlying issues to discuss such as composition, decision making methodologies (threshold, consensus, ...), standing ground, standards of review, cost, delays, ... * When those are defined, then the group can move to developing list of questions for legal advice detailing expected requirements, and asking for proposed mechanisms, in the form "how can we... ?" Action: send out Call for Volunteers. Please send a note to Grace if you would like to volunteer. Legal Advice * Legal Advice subteam also has a mailing list and has started to work based on CWG document. * The timeline that we are working with is very aggressive. In Frankfurt, we discussed that we would get initial response from ICANN legal as we develop our questions document. * No deviance from the path discussed in Frankfurt., * CCWG will attempt as an ideal to use the same firm as used by the CWG, although scoping documents will be different. * So as not wait for the firm to be selected, or wait for the scoping document to be finalized, the first step is to ask for advice from ICANN legal team on a board set of initial questions to help the CCWG understand if it is on a useful track. This will be checked by the external firm.. Contingencies : organising further work (inc. feedback from Board committee) * Agreed on a list of 21 contingencies. Agreed to provide additional analysis to these by responding to a list of questions, after discussion of an appropriate lists if questions. * Request to the Board Risk Committee of the contingencies they use as part of their risk management, a communication has been received from the committee. Comparison shows a couple of items to be updates. Next steps to answer the various questions: * Are there existing remedies in place ? How robust are these remedies ? * Could addressing the contingency be achieved through amending existing accountability mechanisms or is creating new ones necessary ? * How relevant is the threat to the transition of the IANA stewardship ? ie how does the transition affect the likelihood of the threat, or the severeness of the consequences ? Reframe the questions and ask whether contingencies from Board Risk are either in WS1 or WS2 based on our Charter. Action: Add a specific contingency part to the communication materials that we'll edit in Singapore. Timeline update Berry Cobb explains timeline 40 days of Public Comment Outreach plan for Singapore Adam Peake presents * Slide deck or briefing document? * Sent a summary of mailing list discussions sent to the CCWG list * Please let Adam know if you would like a briefing document and we'll see how we can assist. Action: prepare a short summary and slide deck that CCWG can share during next week's meeting and use for Singapore. Action: Adam to talk to GAC Chair and Staff Support to address timing. AOB * Timing of F2F in March (Kavouss) Closing remarks * Outstanding progress in Frankfurt, but still a lot to do in short time. * Press on with various work groups * Elaborate documents and build on substance * Next Call: 12:00 UTC on Tuesday 3 Feb Action Items Action: Add a specific contingency part to the communication materials that we'll edit in Singapore. Action: prepare a short summary and slide deck that CCWG can share during next week's meeting and use for Singapore. Action: Adam to talk to GAC Chair and Staff Support to address timing.

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WA4 list repurposed to [ST-WP] + Call for Volunteers
by Grace Abuhamad Feb. 2, 2015

Feb. 2, 2015

Dear all, Per chairs' request, I have repurposed the WA4 list (ccwg-accountability4(a)icann.org) for the Stress Test Work Party [ST-WP], which is a natural evolution for the work. The archive will reflect this change, since the new subject line prefix will be [ST-WP]. The current ST-WP includes: Coordinator/Rapporteur: Cheryl Langdon-Orr (member) Volunteers: * Steve DelBianco (member) * * James Bladel (member) * Samantha Eisner (member) * Jonathan Zuck (participant) * Alan Greenberg (member) * Leon Sanchez (member) * Eberhard Lisse (member) * Mathieu Weill (member) * Thomas Rickert (member) * Carlos Raul Gutierrez (participant) * Camino Manjon-Sierra (participant) * Adebunmi Akinbo (participant) If you would like to join the group, please let me or Brenda know and we'll add you to the mailing list. The Wiki page for this group is here: https://community.icann.org/x/UAEdAw Best, Grace

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Selection of International Law Advisor to the Enhancing ICANN Accountability Process
by Grace Abuhamad Jan. 30, 2015

Jan. 30, 2015

To view the original announcement, please see: https://www.icann.org/news/announcement-3-2015-01-30-en Selection of International Law Advisor to the Enhancing ICANN Accountability Process <https://www.addthis.com/bookmark.php?v=300&winname=addthis&pub=ra-52fcc7eb 243d6d89&source=tbx32-300&lng=en-us&s=linkedin&url=https%3A%2F%2Fwww.icann.o rg%2Fnews%2Fannouncement-3-2015-01-30-en&title=Selection%20of%20Internationa l%20Law%20Advisor%20to%20the%20Enhancing%20ICANN%20Accountability%20Process% 20-%20ICANN&ate=AT-ra-52fcc7eb243d6d89/-/-/54cbf79945b7ae26/2&frommenu=1&uid =54cbf79954494f3b&ct=1&tt=0&captcha_provider=nucaptcha> <https://www.icann.org/news/announcement-3-2015-01-30-en#> <https://www.icann.org/news/announcement-3-2015-01-30-en#> <https://www.addthis.com/bookmark.php?v=300&winname=addthis&pub=ra-52fcc7eb2 43d6d89&source=tbx32-300&lng=en-us&s=sinaweibo&url=https%3A%2F%2Fwww.icann.o rg%2Fnews%2Fannouncement-3-2015-01-30-en&title=Selection%20of%20Internationa l%20Law%20Advisor%20to%20the%20Enhancing%20ICANN%20Accountability%20Process% 20-%20ICANN&ate=AT-ra-52fcc7eb243d6d89/-/-/54cbf79945b7ae26/3&frommenu=1&uid =54cbf79930690cc0&ct=1&tt=0&captcha_provider=nucaptcha> <https://www.icann.org/news/announcement-3-2015-01-30-en#> <https://www.icann.org/news/announcement-3-2015-01-30-en#> The Accountability & Governance Public Experts Group <https://community.icann.org/x/lIgQAw> (PEG) announces the selection of the 7th and final Advisor to the Cross Community Working Group on Enhancing ICANN Accountability (CCWG). The PEG is pleased to announce Lee Andrew Bygrave as the Advisor with International Law/Jurisprudence as his area of expertise. Lee Andrew Bygrave is a Professor at the Department of Private Law at the University of Oslo, Norway, where he is also the Director of the Norwegian Research Center for Computers and Law. He is additionally an associate (former Co-Director) of the Cyberspace Law and Policy Centre at the University of New South Wales in Australia. Among his publications are Internet Governance: Infrastructure and Institutions (Oxford University Press, 2009) and, most recently, Internet Governance by Contract (Oxford University Press, 2015). Bygrave will be serving in his personal capacity along with the previously announced <https://www.icann.org/news/announcement-2014-12-17-en> Advisors to the CCWG-Accountability: * Roberto Bissio, Executive Director of the Instituto del Tercer Mundo Area of Expertise: Global Ethics Frameworks and Human Rights (for example consumer protection) * William Currie, Consultant in ICT Policy and Regulation Area of Expertise: Governmental Engagement and Relations and Multistakeholder Governance * Valerie D'Costa, Program Manager at infoDev Area of Expertise: Governmental Engagement and Relations and Multistakeholder Governance * Ira Magaziner, Chief Executive Officer and Vice Chairman of the Clinton Health Access Initiative Area of Expertise: Governmental Engagement and Relations and Multistakeholder Governance * Nell Minow, Shareholder Advocate Area of Expertise: Board Governance and Corporate Management (for example operational, finance, risk management * Jan Scholte, Professor, University of Gothenburg and University of Warwick Area of Expertise: Global Accountability and Transparency theoretical, practical, tools and metrics The Advisors have begun their engagement with the CCWG-Accountability, mainly through the CCWG-Accountability Chairs. The Advisors roles are to contribute research and advice, and to bring perspectives on global best practices to enrich the discussion, all while engaging with a broader network of accountability experts from around the world. As stated in the revised Enhancing ICANN Accountability and Governance Process <https://www.icann.org/resources/pages/process-next-steps-2014-10-10-en> from 10 October, The Public Experts Group (PEG) was tasked <https://www.icann.org/news/announcement-2014-08-19-en> with selecting up to 7 Advisors to the CCWG-Accountability. Now, that the PEG has concluded its work, it will no longer be active. However, the PEG notes that the Enhancing ICANN Accountability Process considered that while the PEG's formal task is to select Advisors, PEG members could continue to be available provide additional assistance if there is an identified need for further independent input or expertise. The members of the PEG are: Ms. Jeanette Hoffman, Director, Alexander von Humboldt Institute for Internet and Society; Ambassador Janis Karklins, Latvian Ambassador. Chair of the Multi-stakeholder Advisory Group (MAG); Mr. Larry Strickling, NTIA Administrator and Assistant Secretary for Communication and Information of the U.S. Department of Commerce; and Mr. Brian Cute, Chief Executive Officer, Public Interest Registry

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Accountability Relevant Items in the US Senate
by Paul Rosenzweig Jan. 30, 2015

Jan. 30, 2015

The community might be interested in the two following events that occurred in the United States Senate this week: Two Senators (Hatch and Blunt) introduced a resolution relating to the ICANN/IANA Transition: http://thehill.com/sites/default/files/hatch-blunt_internet_governance_aware ness_week_resolution4_1.pdf Meanwhile, Senator John Thune, Chair of the Senate Commerce Committee (the one that oversees the NTIA) gave a broad speech regarding his agenda for the coming year, which included mention of the IANA transition as well. A report on that speech is here: http://blogs.rollcall.com/technocrat/internet-governance-a-hearing-planned-a nd-a-resolution-introduced/?dcz= Regards Paul **NOTE: OUR NEW ADDRESS BELOW, EFFECTIVE 12/15/14 *** Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9>

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summary of mailing list discussions, week 16-22 January
by Adam Peake Jan. 30, 2015

Jan. 30, 2015

Hi everyone. Staff have been producing a summary of CCWG list discussion for the expert advisors. Thought it might be helpful for you to see. Summary for the week of 16 -22 January attached. We write these on a weekly basis, try to turn them around quite quickly so the advisors can follow the discussions (a few of the advisors are also subscribed to list). Comments always welcome. Thanks, Adam Adam Peake ICANN

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CCWG Timeline
by Berry Cobb Jan. 29, 2015

Jan. 29, 2015

Hi All, Please find attached the latest version of the CCWG timeline as presented during this week's CCWG call. This version has also be circulated to the CWG. There were a few small structural changes from the version presented earlier, but the deliverable dates and key Work Areas and Work Parties remain intact. Should you have any clarifying questions, please send them to the list and we will be happy to answer them. Thank you. B Berry A. Cobb Internet Corporation for Assigned Names & Numbers 720.839.5735 mail(a)berrycobb.com @berrycobb

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got some lawyerly answers on membership structure
by Jonathan Zuck Jan. 29, 2015

Jan. 29, 2015

The idea of ICANN membership has come up as a means to anchor the organization in the existing bottom-up, multi-stakeholder community, thereby ensuring its continued legitimacy. The very essence of work stream 1 is that ICANN's Board of Directors would become accountable to the community, in much the same way that the Boards of publicly-traded companies are ultimately accountable to their shareholders. Some good and reasonable questions have been raised on the list about the legality and complexity of a possible membership structure under California not-for-profit corporate law. I tasked my in-house counsel with researching some of these questions and, while recognizing that the CCWG still needs independent expert advice, here's what she's been able to determine: Q: What would this look like? Briefly, the idea is that the head of each of the 11 current ICANN groups (supporting organizations, advisory committees, and stakeholder groups) would become one of the members of ICANN, and would continue to serve as an ICANN member until someone else took over the leadership of that group. Q: Is the proposed membership structure legal? A: Under California non-profit law, a tax-exempt organization may be comprised of members. A tax-exempt organization has broad leeway to create a membership structure that best suits its particular needs. It's clear under California law that individuals may be members. Cal. Corp. Code 5310(a). Moreover, California law does not restrict membership to legally organized groups. Cal. Corp. Code 5313. Thus, it is appropriate for an individual, identified by a group (whether incorporated or unincorporated) to be a member. Alternately, membership can be granted to a group, which can then authorize a person to vote on its behalf. Cal. Corp. Code 5056(c). Q: Will the Government Advisory Committee have a member? Can a government representative be a member of a non-profit organization? A: Yes. As an Advisory Committee, the GAC would have one member on ICANN. California non-profit law permits a government representative (including a representative of a foreign government) to be a member of a non-profit organization. However, if the GAC determines that it prefers to remain only an advisory body and not take on this new membership role, the model is still viable. Q: Will the new membership structure be flexible enough to accommodate future changes to ICANN? A: Yes. Future changes to ICANN membership status would be approved by the members. For example, if a new stakeholder group, supporting organization or advisory committee is created under the bylaws, the current members could offer membership to that entity by a 3/4 vote. Similarly, the current members could remove a current member by a 3/4 vote. The required flexibility would just need to be incorporated into the updated bylaws. Q: How would the members remain accountable? To ensure full accountability, the 11 members would serve on behalf of their respective memberships and could be recalled or replaced by their group at any time. Q: How to prevent membership from being GNSO-heavy? Any concerns about the 11 members being too GNSO-heavy could be addressed via a weighted voting structure or similar mechanism. Q: How will the new membership structure prevent organizational capture? Will each member be treated the same? A: The new membership structure prevents organizational capture by giving each stakeholder group only one representative member to ICANN and requiring a 3/4 vote for significant decisions, thereby ensuring significant consensus. Each member receives one vote of equal weight to the other members. For instance, governments are represented by the GAC Chair, and have only one collective voice out of 11 in the accountability process. Q: Will the membership process preclude those unable or unwilling to pay membership dues? A: Membership would be free to all eligible members. Participation in the existing group of supporting organizations and advisory committees will not be altered, and will remain free of charge. I hope this helps to inform our discussions while we wait for the independent legal experts to give us their views. Jonathan Zuck President 202-331-2130 X 101 | jzuck(a)actonline.org<mailto:jzuck@actonline.org> | Skype: jvzuck ACT | The App Association [https://dl.dropboxusercontent.com/u/6442666/twitter.png]<https://twitter.com/actonline> [https://dl.dropboxusercontent.com/u/6442666/fb.png]<https://www.facebook.com/actonline.org> [https://dl.dropboxusercontent.com/u/6442666/actonline.png]<http://actonline.org/>

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