January 2015 - Accountability-Cross-Community

Re: [CCWG-Accountability] [Area 3] Comments on accountabilty
by Dr Eberhard W Lisse Jan. 12, 2015

Jan. 12, 2015

Dear Co-Chairs, can we please arrange for an open format such as PDF? el On 2015-01-12 13:03 , Kavouss Arasteh wrote: > Dear Mathieu > Dear All > Please find attached my comments on the document provided by mathieu on > accountabilty > Regards > Kavouss [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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[CCWG-Accountability] Regarding role of Board directors
by Bruce Tonkin Jan. 12, 2015

Jan. 12, 2015

Hello Steve, >> ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation: >> Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies. I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin

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[CCWG-Accountability] Prior work on Accountability structures in 2012
by Bruce Tonkin Jan. 11, 2015

Jan. 11, 2015

Hello All, From the ATRT1 review, the Board created the Accountability Structures Expert panel (ASEP) to recommend improvements to the current accountability structures. I have attached their final report from: https://www.icann.org/en/system/files/files/report-26oct12-en.pdf from October 2012. It may be of some use to this group. Some points I picked out from their recommendations: The Four Es: • Enhancing effectiveness of structures • Efficiency in process • Allowing expeditious resolution • Enhancing community’s ease of access to accountability structures “The Board must always act with objectivity and fairness in the best interests of ICANN, but in doing so take account of the legitimate needs, interests and expectations of stakeholders material to the issue being decided. Staff must act in same manner." Create stability through building of precedent Where possible, reduce burden and costs to those accessing structures Accountability structures should not preclude any party from filing suit against ICANN in court of competent jurisdiction Regards, Bruce

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Re: [CCWG-Accountability] how Board members are appointed
by Bruce Tonkin Jan. 10, 2015

Jan. 10, 2015

Hello Kavouss, Just providing some answers to questions posed over the last week or so. >> Which community and Under Which Legal representation and using Which criteria designate the Board Members ? From the bylaws, the Board is appointed by: a. Eight voting members selected by the Nominating Committee established by Article VII of these Bylaws. These seats on the Board of Directors are referred to in these Bylaws as Seats 1 through 8. The voting members of the Nominating Committee itself comprises of people appointed as follows: Five voting delegates selected by the At-Large Advisory Committee One delegate from the Registries Stakeholder Group; One delegate from the Registrars Stakeholder Group; Two delegates from the Business Constituency, one representing small business users and one representing large business users; One delegate from the Internet Service Providers Constituency; One delegate from the Intellectual Property Constituency; and One delegate from consumer and civil society groups, selected by the Non-Commercial Users Constituency. One voting delegate each selected by the ccNSO, ASO and IETF b. Two voting members selected by the Address Supporting Organization c. Two voting members selected by the Country-Code Names Supporting Organization d. Two voting members selected by the Generic Names Supporting Organization e. One voting member selected by the At-Large Community f. The President ex officio, who shall be a voting member. Ultimately the legitimacy of this selection model comes down to the level of membership in the underlying groups. For example business users from around the world can join the business constituency. They in turn can particulate in elections to appoint people to the GNSO Council and the nominating committee, which in turn appoint ICANN directors. The limitation of course is that only a small percentage of the possible business users in the world are sufficiently interested in domain names and IP addresses to join the business constituency, and probably only a percentage of the members actually vote in elections to appoint people to the GNSO Council or Nominating Committee. Groups that have a higher interest in ICANN (e.g. gTLD registrar or gTLD registry) tend to have a higher level of participating in the ICANN Stakeholder Groups and participate in voting. >> using Which criteria The general criteria for selection Board members is: ICANN Directors shall be: 1. Accomplished persons of integrity, objectivity, and intelligence, with reputations for sound judgment and open minds, and a demonstrated capacity for thoughtful group decision-making; 2. Persons with an understanding of ICANN's mission and the potential impact of ICANN decisions on the global Internet community, and committed to the success of ICANN; 3. Persons who will produce the broadest cultural and geographic diversity on the Board consistent with meeting the other criteria set forth in this Section; 4. Persons who, in the aggregate, have personal familiarity with the operation of gTLD registries and registrars; with ccTLD registries; with IP address registries; with Internet technical standards and protocols; with policy-development procedures, legal traditions, and the public interest; and with the broad range of business, individual, academic, and non-commercial users of the Internet; and 5. Persons who are able to work and communicate in written and spoken English. The additional criteria is: 1. Notwithstanding anything herein to the contrary, no official of a national government or a multinational entity established by treaty or other agreement between national governments may serve as a Director. As used herein, the term "official" means a person (i) who holds an elective governmental office or (ii) who is employed by such government or multinational entity and whose primary function with such government or entity is to develop or influence governmental or public policies. 2. No person who serves in any capacity (including as a liaison) on any Supporting Organization Council shall simultaneously serve as a Director or liaison to the Board. If such a person accepts a nomination to be considered for selection by the Supporting Organization Council or the At-Large Community to be a Director, the person shall not, following such nomination, participate in any discussion of, or vote by, the Supporting Organization Council or the committee designated by the At-Large Community relating to the selection of Directors by the Council or Community, until the Council or committee(s) designated by the At-Large Community has selected the full complement of Directors it is responsible for selecting. In the event that a person serving in any capacity on a Supporting Organization Council accepts a nomination to be considered for selection as a Director, the constituency group or other group or entity that selected the person may select a replacement for purposes of the Council's selection process. In the event that a person serving in any capacity on the At-Large Advisory Committee accepts a nomination to be considered for selection by the At-Large Community as a Director, the Regional At-Large Organization or other group or entity that selected the person may select a replacement for purposes of the Community's selection process. 3. Persons serving in any capacity on the Nominating Committee shall be ineligible for selection to positions on the Board as provided by Article VII, Section 8. >> Do you believe that the current designation fully respecting the notion of inclusiveness and full democracy? It is democratic in the sense that there is a mechanism for all parties that are interested in ICANN's mission to join a group that aligns with their interests. However exactly how to accomplish this is probably not obvious due to the complex array of structures that make up the ICANN community. Once joining a group they can participate in elections of officials which in turn participate in appointing ICANN Board members. See: https://www.icann.org/resources/pages/beginners-guides-2012-03-06-en for the current beginner's guides for how to participate in ICANN. As mentioned earlier, the limitation is in the level of participation of members in the underlying bodies, and the level of geographic diversity of members. Over the last few years ICANN has sought to broaden participation through the Fellowship program: https://www.icann.org/resources/pages/fellowships-2012-02-25-en Regards, Bruce Tonkin

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[CCWG-Accountability] Announcement about High Level Statements on ICANN Website
by Grace Abuhamad Jan. 9, 2015

Jan. 9, 2015

Dear all, The High Level Statements from the CCWG have been published in an announcement on the ICANN website: https://www.icann.org/news/announcement-2-2015-01-09-en Co-Chairs of CCWG-Accountability Publish High Level Statements <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-2-2015-01-09-en&title=Co-Chairs%20of%20CCWG-Account ability%20Publish%20High%20Level%20Statements%20-%20ICANN&ate=AT-ra-52fcc7eb 243d6d89/-/-/54b053b88fecfffd/2&frommenu=1&uid=54b053b852141fea&ct=1&tt=0&ca ptcha_provider=nucaptcha> <https://www.icann.org/news/announcement-2-2015-01-09-en#> <https://www.icann.org/news/announcement-2-2015-01-09-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-2-2015-01-09-en&title=Co-Chairs%20of%20CCWG-Account ability%20Publish%20High%20Level%20Statements%20-%20ICANN&ate=AT-ra-52fcc7eb 243d6d89/-/-/54b053b88fecfffd/3&frommenu=1&uid=54b053b8bb24e0e2&ct=1&tt=0&ca ptcha_provider=nucaptcha> <https://www.icann.org/news/announcement-2-2015-01-09-en#> <https://www.icann.org/news/announcement-2-2015-01-09-en#> On behalf of the Cross Community Working Group (CCWG) Accountability, the co-chairs Thomas Rickert (GNSO), León Sanchez Ambia (ALAC) and Mathieu Weill (ccNSO) are pleased to announce that the CCWG has prepared a set of high level statements <https://community.icann.org/x/3pAQAw> that might be valuable to all groups or individuals working on proposals as part of the NTIA IANA Functions' Stewardship Transition Process. The CCWG is aware and conscious of the interdependency and interlinkage of the IANA Stewardship Transition and Enhancing ICANN Accountability Processes, in particular with what has been called Work Stream 1 and appreciates the sense of urgency. Although the CCWG works as expeditiously as possible on the tasks it has been chartered with, it is not feasible to publish concrete results of the group in January. Nonetheless, the CCWG has chosen to publish the high level statements as a preliminary assessment of the situation and is cognizant that this preliminary assessment might be subject to change because of: * Changes to the proposals under discussion as part of the IANA Stewardship Transition Process, in particular the Interim Proposal <https://www.icann.org/en/system/files/files/cwg-naming-transition-01dec14-e n.pdf> published by the CWG-Stewardship on 1 December 2014; and * Changes due to other external and internal factors, such as evolving deliberations of the CWG itself. Background CCWG The CCWG began its work late November 2014 with regular weekly virtual meetings and will have its first (intersessional) face-to face meeting on 19 and 20 January 2015 in Frankfurt, Germany. The CCWG was chartered by ALAC, ccNSO, GAC, GNSO and NRO acting as ASO and includes over 150 participants and members <https://community.icann.org/x/IIMHAw> appointed by the chartering organizations, Advisors <https://community.icann.org/x/54cQAw> appointed by the Public Experts Group (PEG), and 3 liaisons. Additional information, including transcripts and recordings of the discussions are available at: https://community.icann.org/x/ogDxAg

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[CCWG-Accountability] WS4 Initial Scenarios
by Eric Brunner-Williams Jan. 9, 2015

Jan. 9, 2015

Colleagues, Attached please find an initial set of scenarios, in two pages, in .pdf and .docx formats. Feedback via email please, either to me directly (ebw(a)abenaki.wabanaki.net) or to the WS4 sublist (ccwg-accountability4(a)icann.org) Thanks in advance, Eric Brunner-Williams Eugene, Oregon

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[CCWG-Accountability] Fwd: High Level Statements
by Thomas Rickert Jan. 8, 2015

Jan. 8, 2015

All, please find below the note we sent to the co-chairs of the CWG. Thank you for your contributions to this. Kind regards, Thomas Rickert > Anfang der weitergeleiteten Nachricht: > > Betreff: High Level Statements > Von: Thomas Rickert <rickert(a)anwaelte.de> > Datum: 8. Januar 2015 18:07:04 MEZ > Kopie: Mathieu Weill <Mathieu.Weill(a)afnic.fr>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> > An: Lise Fuhr <lise.fuhr(a)difo.dk>, Jonathan Robinson <jrobinson(a)afilias.info> > > Dear Lise and Jonathan, > > the Cross Community Working Group on Naming Related Functions (CWG-Stewardship) and the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) are regularly liaising and co-ordinating their work as both work areas are interdependent and interlinked. The co-chairs of both groups have agreed that it would be valuable for the CWG-Stewardship to provide the CCWG-Accountability with a list of issues it has identified during its deliberations where the work of both group overlaps. Subsequently, the following items from the proposal published on Dec. 1st, 2014 have been identified: > > · Section 3.3 – “Independent Review of Board Actions – the CWG-Stewardship may propose that this becomes binding under certain circumstances directly related to IANA; no other changes proposed”. If this were to be included in the final proposal implementation would require a change to the ICANN Bylaws regarding the IRP. > > · Section 3.4.3.2 - Independent certification for delegation and re-delegation requests. This is still under consideration by the CWG-Stewardship but would be a replacement for the authorization function for all changes to the Root Zone or its WHOIS Database currently performed by the NTIA. The replacement mechanism would have gTLD requests for delegations and re-delegations authorized by an independent third party and its decision on these matters would be binding on ICANN/IANA. This would probably require modifications to the ICANN Bylaws. > > · Section 3.4.3.3 - Independent Appeals Panel – The CWG-Stewardship is proposing that an independent review panel be set up to deal with contested changes to the Root Zone or its WHOIS Database. Although discussions are still ongoing as to the specifics of such a proposal it is generally agreed that such a mechanism should be part of the final proposal and that its decisions would be binding. As such this would also require changes to the ICANN Bylaws. > > > > Additionally, the CCWG-Accountability has been advised that "ICANN-only“ proposals currently considered might have significant input on the Accountability mechanisms required. > > > Finally, the CWG-Stewardship pointed out that feedback would ideally be received early enough to be taken into account when finalizing the proposal to be submitted to the ICG. > > While the CCWG-Accountability appreciates the sense of urgency and works as expeditiously as possible on the tasks it has been chartered with, it is not feasible to publish a work results of the group in January. > > Nonetheless, the CCWG-Accountability has chosen to publish high level statements as a preliminary assessment of the situation. > > However, the CCWG-Accountability is cognizant that any preliminary assessment might be subject to change because of > > - changes made to the proposal published by the CWG-Sterwardship on Dec.1st, 2014 > - other proposals and > - changes due to other external and internal factors, such as evolving deliberations of our group. > > The below high level statements might be valuable to all groups or individuals working on proposals to be submitted to the ICG, which is why they are not only a response to the CWG-Stewardship, but published as a status update by the CCWG-Accountability. > > 1. The CCWG-Accountability noted that a significant number of contributions during the two Public Comments on Enhancing ICANN Accountability called for the implementation of independent mechanisms enabling to review and, when appropriate, redress, decisions from the ICANN Board of Directors. It was often noted that these mechanisms should be in place or committed to before the IANA Stewardship Transition takes place. The CCWG-Accountability is therefore considering addressing this need in its Work Stream 1 (WS1). Unless the CWG-Stewardship specifies otherwise, Board decisions that are directly related to IANA Functions could be added to the remit of such independent mechanisms for the review and redress of decisions of the ICANN Board of Directors, which the CCWG-Accountability may address in Work Stream 1. Other issues that were brought up by many and could qualify for being in the remit of such mechanism were decisions broadening or altering ICANN’s mandate as well as recalling one or multiple ICANN Board members. Please note that the legal nature, composition, and specific mandate of this mechanism are yet to be determined. > > 2. The CCWG-Accountability acknowledges the expectation for certain internal and / or external review and / or appeals processes to be implemented or committed to prior to the transition and will consider these as part of its work. > > 3. Further, we would like to assure you that the CCWG-Accountability output will adhere to the following considerations; > > · Any proposal will address the concern on to whom should ICANN be held accountable. > > · Any proposal will address the concern on what should ICANN be held accountable for. > > · Any proposal will address the concern on how ICANN or its Board of Directors should be held accountable. > > We hope this broad but clear roadmap helps the CWG complement their work and that we continue to work on a coordinated fashion. > > Please note that these statements reflect the current status of deliberations of the CCWG-Accountability and might be subject to change for the reasons mentioned above and further input from the community. > > > > Kind regards, > > Mathieu Weill, León Sánchez and Thomas Rickert > > Co-Chars of the CCWG-Accountability >

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Re: [CCWG-Accountability] judicial/arbitral function
by David W. Maher Jan. 8, 2015

Jan. 8, 2015

It should be noted that until April 2013, the standard of review was: ³Requests for such independent review shall be referred to an Independent Review Panel ("IRP"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws.² In April 2013, the Board changed the standard of review. The change was criticized by the Registry Stakeholder Group (and possibly others) on the grounds that it seriously narrowed the standard, with the effect of protecting the Board from an independent review of the Board's actions to determine whether they were consistent with the Articles and Bylaws. David David W. Maher Senior Vice President Law & Policy Public Interest Registry 312 375 4849 On 1/8/15 4:54 AM, "Bruce Tonkin" <Bruce.Tonkin(a)melbourneit.com.au> wrote: >Hello Paul, > >>> And that, in turn emphasizes why it is necessary as part of the >>>transition to define the Board's/ICANN's scope of authority. A >>>judicial/arbitral function can only resolve disputes and cabin >>>capture/abuse if it has an articulated standard against which to >>>measure the dispute. In the absence of such pre-existing guidance the >>>judiciary/arbiter is simply substituting his/her/its own judgment for >>>the Board and the Community, which is not a good thing. > >Agreed. The current primary documents that an independent function >could base a judgement on is whether ICANN is complying with its bylaws >and its Articles of Incorporation. > >For example the current independent review process identified in the >bylaws states : > > https://www.icann.org/resources/pages/bylaws-2012-02-25-en#IV > > > >1. ".. ICANN shall have in place a separate process for independent >third-party review of Board actions alleged by an affected party to be >inconsistent with the Articles of Incorporation or Bylaws. > >2. Any person materially affected by a decision or action by the Board >that he or she asserts is inconsistent with the Articles of Incorporation >or Bylaws may submit a request for independent review of that decision or >action. In order to be materially affected, the person must suffer >injury or harm that is directly and causally connected to the Board's >alleged violation of the Bylaws or the Articles of Incorporation, and not >as a result of third parties acting in line with the Board's action." > >Also: > >"Requests for such independent review shall be referred to an Independent >Review Process Panel ("IRP Panel"), which shall be charged with comparing >contested actions of the Board to the Articles of Incorporation and >Bylaws, and with declaring whether the Board has acted consistently with >the provisions of those Articles of Incorporation and Bylaws. The IRP >Panel must apply a defined standard of review to the IRP request, >focusing on: > > a. did the Board act without conflict of interest in taking its >decision?; > > b. did the Board exercise due diligence and care in having a reasonable >amount of facts in front of them?; and > > c. did the Board members exercise independent judgment in taking the >decision, believed to be in the best interests of the company?" > >The Independent Review Process Panel shall have the authority to: > >"a. summarily dismiss requests brought without standing, lacking in >substance, or that are frivolous or vexatious; > >b. request additional written submissions from the party seeking review, >the Board, the Supporting Organizations, or from other parties; > >c. declare whether an action or inaction of the Board was inconsistent >with the Articles of Incorporation or Bylaws; and > >d. recommend that the Board stay any action or decision, or that the >Board take any interim action, until such time as the Board reviews and >acts upon the opinion of the IRP; > >e. consolidate requests for independent review if the facts and >circumstances are sufficiently similar; and > >f. determine the timing for each proceeding." > > >The discussion in recent years is that the output of the Independent >Review process is not binding. Ie it is not binding arbitration - >simply an independent "review". > > >The bylaws could be updated to better " define the Board's/ICANN's scope >of authority", and the Cross Community Working Group could consider what >changes are necessary to the current Independent Review mechanism. For >example the ability and process to update the bylaws could be updated. > > >Regards, >Bruce Tonkin > > > > > > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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[CCWG-Accountability] High Level Statement for CWG-Stewardship
by Grace Abuhamad Jan. 8, 2015

Jan. 8, 2015

Hi all, Attached is the High Level Statement discussed on the call. The chairs plan to submit at 15:00 UTC. Please provide your comments. Best, Grace From: Brenda Brewer <brenda.brewer(a)icann.org> Date: Tuesday, January 6, 2015 3:24 PM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: [CCWG-Accountability] CCWG ACCT call details 06 Jan 12:00 UTC Dear all, The notes and Adobe Connect recordings and transcript (soon) for the CCWG ACCT Call on 06 January are available here: https://community.icann.org/pages/viewpage.action?pageId=51414985 · Action Item: Co-Chairs will recap WS1 and WS2 items on mailing list and review for approval at next meeting · Action Item: Colleagues to provide comments on the list in response to the document. Proposed edits are welcome. Goal to develop a common view on scoping. Will be an agenda item for the next call and the Frankfurt meeting. Public interest issues, ccTLD concerns and other issues to be identified. · Action Item: The statement will be published on the CCWG list for further comment. The next call is on Tuesday, 13 January 2015 at 06:00 UTC. Best, Brenda

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[CCWG-Accountability] travel support for liaisons
by Thomas Rickert Jan. 7, 2015

Jan. 7, 2015

Dear all, In addition to travel support for the members of the CCWG-Accountability, ICANN will offer support to the three liaisons in the CCWG: Kavouss Arasteh and Keith Drazek, who are the ICG-designated liaisons, and Avri Doria, who is the ATRT Expert. While these three liaisons are participants, they play an essential role in the work of the CCWG, representing related processes that affect, and will be affected, by the output of the CCWG. For these reasons, it is important to support their in-person attendance at the Frankfurt meeting, should they be able to attend. Best, León, Mathieu, and Thomas

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