October 2015 - Accountability-Cross-Community

for Dublin breakout session on Community Decision-Making process
by Steve DelBianco Oct. 17, 2015

Oct. 17, 2015

For anyone joining the Saturday breakout session on Community Decision-Making Process, attached document shows the graphics and Terms of Reference we’ll use this morning. —Steve [cid:3CC0EDB7-255C-47FF-8528-AF72158F38A1]

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Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
by Bruce Tonkin Oct. 17, 2015

Oct. 17, 2015

Hello Anne, >> Did someone hear of a 2/3 majority Board vote that the CCWG Proposal is not in the global public interest? Is that where we are headed if the processing of public comment does not result in the structure the Board desires? I vote won't be taken until the Board receives the CCWG-Accountability Board report. Form the CCWG Charter, the CCWG-Accountability Board Report, shall include at a minimum: a) The (Supplemental) Proposal as adopted by the CCWG-Accountability; and b) The notifications of the decisions from the chartering organizations c) Documentation of the process that was followed, including, but not limited to documenting the process of building consensus within the CCWG-Accountability and public consultations. When a vote is taken - the Board will take into account the Board report, and all the public submissions that have been made, in making its decision. This also includes listening to people at the mike at the public forum at public ICANN meetings, and any feedback we get when we meet with each SO, AC, and stakeholder group. We do lots of listening before coming to any conclusions. The same as we do for any recommendation from an SO or cross-community working group. We have followed a similar process countless times for recommendations from the GNSO, ccNSO, ASO. Regards, Bruce Tonkin

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Regarding public interest
by Bruce Tonkin Oct. 17, 2015

Oct. 17, 2015

The attached letter from the chair of the Board may be of interest in the context of understanding public interest. As part of the community's strategic plan - gaining a shared understanding of global public is an important strategic initiative. The attached letter to the GNSO chair notes that staff support will be provided when the community has time to look at this issue in more detail. Regards, Bruce Tonkin From: icann-board-bounces(a)icann.org [mailto:icann-board-bounces@icann.org] On Behalf Of Wendy Profit Sent: Monday, 12 October 2015 7:29 PM To: Jonathan Robinson <jonathan.robinson(a)ipracon.com> Cc: Secretary <secretary(a)icann.org>; Glen de Saint Géry <Glen(a)icann.org>; Nora Abusitta <nora.abusitta(a)icann.org>; icann-board(a)icann.org Subject: [icann-board] [CORRESPONDENCE] Letter from Steve Crocker to Jonathan Robinson RE: Exclusive Access/Public Interest Dear Jonathan Robinson, Please find the attached letter from Steve Crocker in response to your letter dated 22 September 2015 concerning exclusive registry access for gTLDs and the topic of "global public interest". Kind regards, Wendy Profit ICANN Board Operations Specialist 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094 Mobile: 1-310-773-6811 Office: 1-310-578-8695 [cid:9EE3856B-E117-4FAC-A468-9DE8F3811D6D]

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FW: Question on binding IRP
by Grace Abuhamad Oct. 17, 2015

Oct. 17, 2015

Forwarding on Counsel¹s behalf. From: "McNicholas, Edward R." <emcnicholas(a)sidley.com> Date: Friday, October 16, 2015 at 8:23 PM To: "McNicholas, Edward R." <emcnicholas(a)sidley.com>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> Cc: ACCT-Staff <acct-staff(a)icann.org>, Holly Gregory <holly.gregory(a)sidley.com>, "Rosemary E. Fei" <rfei(a)adlercolvin.com>, Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, ICANN-Adler <ICANN(a)adlercolvin.com>, Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: RE: Question on binding IRP Please use this version. León Holly and Rosemary asked me to respond to the question about whether an entity that has no legal personhood ( i.e., is not an unincorporated association, partnership, corporation or natural person) can enter into binding arbitration under California law or applicable federal law. It is important to emphasize that the issue involves binding arbitration. Nonbinding arbitration and mediation proceedings can involve any sort of entity. Ultimately they are not intended to be binding or enforceable, and so there is no significance to whether an entity could be bound or bind another entity in that context. In contrast, if arbitration is intended to be binding, then the entity involved must be subject to be being bound itself and be able to bind the other entity. Unless the losing party complies after the arbitrator¹s decision, arbitral awards must be taken into a court and recognized in a court judgment in order to enforced. Ultimately, arbitration relies upon the courts for enforcement; and courts must examine whether they are dealing with a legal entity. The legally significant point is whether a non-legal person can enforce an arbitration award, and the answer to that question is ³no.² Federal Rule of Civil Procedure 17(b) (3)(A) provides that ³a partnership or other unincorporated association with no . . . capacity under that state's law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws.² This Rule does not and cannot bestow capacity to sue on a non-legal person when that non-legal person tries to enforce a substantive right, and we are not aware of any case that stands for that proposition. SO/ACs will need to demonstrate legal personhood to enforce an arbitration agreement (assuming that they are either parties themselves to the arbitration agreement or third-party beneficiaries). There was a question about whether some case law suggests that even if an entity lacks legal personhood and therefore cannot enforce an arbitration award under state law, Federal Rule of Civil Procedure 17(b) permits that entity to sue in federal court because arbitration is a ³substantive right.² Specifically, some case law indicates that an entity lacking capacity to compel arbitration or enforce an arbitration award in its own name under state law may in some circumstances do so under Rule 17(b). See, e.g., O & Y Landmark Assocs. of Va. v. Nordheimer, 725 F. Supp. 578, 581 (D.D.C. 1989) (finding that a partnership seeking to compel arbitration had capacity even though D.C. law did not recognize such); Local 4076, United Steelworkers of Am. V. United Steelworkers of Am., AFL-CIO, 327 F. Supp. 1400, 1403 (W.D. Pa. 1971); see also Day v. Avery, 548 F.2d 1018, 1022 (D.C. Cir. 1976) (recognizing arbitration as a substantive right), Laundry, Dry Cleaning & Dye House Workers Int¹l Union v. Mahoney, 491 F.2d 1029 (8th Cir. 1974) (enforcing arbitration in an equally divided concurring opinion). None of these cases, however, suggest that an entity entirely lacking legal personhood may file suit in federal court simply because the right to arbitrate is at issue. Rather, Rule 17(b) lets the partnership, union, or other unincorporated association each a legal person sue in its name, as opposed to forcing its members to sue in theirs. It bears emphasis that in each instance these entities were legal persons. For instance, in Local 4076, Pennsylvania law did not allow the local union to sue in its own name because its charter had been cancelled, requiring instead that the suit be filed in the name of a member or members as trustees ad litem for the association. 327 F. Supp. at 1403. Rule 17(b) overrode this pleading requirement. Id. Mahoney dealt with a similar issue. In each of these cases, an entity with legal personhood existed at some point; the question was whether the entity itself or the individual members must be the nominal party in the suit. The question of legal personhood is a key enforcement issue for any model that relies on individual SOs and ACs for enforcement. It would be necessary for the SO/ACs to show that they are unincorporated associations (or some other type of legal person) to enforce any arbitrator¹s award. In California, that is an uncertain test: whether there is a ³group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not.² Cal. Corp. Code § 18035(a); see also Cal. Code Civ. P. § 369.5. ³The criteria applied to determine whether an entity [is capable of suing or being sued as] an unincorporated association are no more complicated than (1) a group whose members share a common purpose, and (2) who function under a common name under circumstances where fairness requires the group be recognized as a legal entity.² Barr v. United Methodist Church, 90 Cal. App. 3d 259, 266 (Cal. Ct. App. 1979). And at least some courts have recognized that an ³organization² that ³has no charter, by-laws or articles, no office or place of business, no mailing address, no bank account, no assets or obligations, and has never transacted business² as an entity is not an unincorporated association with capacity to sue or be sued. Cal. Clippers, Inc. v. U.S. Soccer Football Ass¹n, 314 F. Supp. 1057, 1068 (N.D. Cal. 1970). In our case, some SO/ACs have indicated that they do not view themselves as unincorporated associations, and, in that case, it would involve a significant risk to enforceability to suggest that they could enforce an arbitration award. Of course, if an unincorporated association exists or is timely created, it is a legal person and there will be no problem with lack of personhood; this email is only to be clear that lack of personhood is problematic. Please note that, as a general matter, this legal analysis is provided on a level in keeping with the question posed. Our legal analysis is tailored to the context in which the particular question arises. It is provided to inform and help facilitate your consideration of the governance accountability models under discussion and should not be relied upon by any other persons or groups for any other purpose. Unless otherwise stated, our legal analysis is based on California law and in particular the laws governing California nonprofit public benefit corporations (California Corporations Code, Title 1, Division 2). In our effort to respond in a limited time frame, we may not have completely identified, researched and addressed all potential implications and nuances involved. Please let us know if there are any questions or concerns. All the best, Ed EDWARD R. McNICHOLAS Partner \ Privacy, Data Security & Information Law Practice Co-Leader Sidley Austin llp 1501 K Street, N.W. Washington, DC 20005 202 736 8010 office From: León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx] Sent: Friday, October 16, 2015 2:49 PM To: Gregory, Holly; Rosemary E. Fei Cc: ACCT-Staff; Sidley ICANN CCWG; ICANN-Adler; Accountability Cross Community Subject: Question on binding IRP Dear Holly, dear Rosemary, One key question that has been in the air and I believe is important to answer is the following: Does an entity that has no legal personhood ( i.e., is not an unincorporated association, partnership, corporation or natural person) can enter into binding arbitration under California law or applicable federal law? Could you please guide us on this issue. This, of course, certifies this question for you to work on it. Best regards, León **************************************************************************** ************************ This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************** ************************

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Revised Stress Tests 29 and 30
by Greg Shatan Oct. 17, 2015

Oct. 17, 2015

All, As discussed during yesterday's F2F session, I attach proposed revisions to Stress Tests 29 and 30. Please note that I split Stress Test 29 into two parts, since the two paragraphs of the ST29 posed different issues with differing answers. I followed the limitation set by the Stress Test Working Party that the text of the "Stress Test" fact statement should not be changed. I look forward to comments. Greg

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Apologies
by Paul Rosenzweig Oct. 16, 2015

Oct. 16, 2015

Colleagues My apologies for clogging your emails. I will recede P 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 VOIP: +1 (202) 738-1739 Skype: 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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Spam and Identity
by Paul Rosenzweig Oct. 16, 2015

Oct. 16, 2015

Colleagues With regard to the messages from Mr. Baione I received the following notification: “Why is this message in Spam? It’s from an address in the yahoo.com domain but has failed yahoo.com’s required tests for authentication.” Mr. Baione’s SOI is here: https://community.icann.org/display/gnsosoi/Ronald+Baione-Doda+SOI Regards Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl…> Link to my PGP Key From: Ron Baione [mailto:ron.baione@yahoo.com] Sent: Friday, October 16, 2015 1:15 PM To: Roelof Meijer <Roelof.Meijer(a)sidn.nl>; accountability-cross-community(a)icann.org Subject: Re: [CCWG-ACCT] Meeting location Again, I would like the community and the Ombudsman to make note of that Direct and viscious insult calling me Mr. "Baloney". The name-calling on this mailing list appears to be part of the ccwg culture, sadly. I can understand why people would be hesitant to submit new ideas or comments to this email list, but insults should not deter the good work being accomplished by ccwg-accountability. "I, probably like quite a few others on this list, fail to see the link between your message below and the subject of this thread (“Meeting location”). The message reference the Ombudsman's comment about polite discourse, not sure how you missed that part of the email, regardless of the "subject" of the email, most people respond to the "contents" of an email. "During our last CCWG call, I commented on the number of emails we all have to deal with and the fact that practically in every mail thread of this group, there’s growing divergence between the title of the thread and the content of submissions of some as the discussion proceeds." Again, the subject of an email is less relevant than the contents of an email. "A factor that makes it very difficult for the reader to just read those emails that are worth the time." We all have a certain level of dedication to the imoortant work of ccwg-accountability. If you can't read all the emails, may I suggest receiving the "digest" of emails? Not sure how to solve your issue of not being to read each and every email in full. There are classes on time-management, but that is your call, obviously. "I would greatly appreciate it if you would stick to the good practice of ensuring that the content of your message is aligned with subject specified in the header." That is not a "practice" good or bad, that I have ever heard of so my answer is no unless you can provide a source proving the existence of such a practice, thanks. Ron _____ From: Roelof Meijer <Roelof.Meijer(a)sidn.nl <mailto:Roelof.Meijer@sidn.nl> >; To: Ron Baione <ron.baione(a)yahoo.com <mailto:ron.baione@yahoo.com> >; accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> <accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> >; Subject: Re: [CCWG-ACCT] Meeting location Sent: Fri, Oct 16, 2015 7:46:00 AM Dear mr. Baloney, I, probably like quite a few others on this list, fail to see the link between your message below and the subject of this thread (“Meeting location”). During our last CCWG call, I commented on the number of emails we all have to deal with and the fact that practically in every mail thread of this group, there’s growing divergence between the title of the thread and the content of submissions of some as the discussion proceeds. A factor that makes it very difficult for the reader to just read those emails that are worth the time. I would greatly appreciate it if you would stick to the good practice of ensuring that the content of your message is aligned with subject specified in the header. Best, Roelof Meijer From: <accountability-cross-community-bounces(a)icann.org <javascript:return> > on behalf of Ron Baione <ron.baione(a)yahoo.com <javascript:return> > Date: vrijdag 16 oktober 2015 01:45 To: Grace Abuhamad <grace.abuhamad(a)icann.org <javascript:return> >, "accountability-cross-community(a)icann.org <javascript:return> " <accountability-cross-community(a)icann.org <javascript:return> > Subject: Re: [CCWG-ACCT] Meeting location It's not a policy on polite discourse if it is not enforced, especially when someone can be directly, publicly insulted without any fear of the Ombusdmans ability to enforce that policy. It is clear that after being publicly referred to impolitely and unfairly objectified as a "troll", an "it", "a silicone based lifeform", labeled as "hostile", and told to "give it a rest" simply for trying to participate and share new ideas, there is no actual ability for the Ombudsman to enforce the policy being referred to. The very fact that the Ombusdman already sent a note previously asking members of this list to follow the policy on polite discourse, prior to my being assigned as a participant to CCWG-Accountability, shows me that there has long needed to be some sort of special review of the comments made by members of this mailing list to see if there is a atmosphere of disrespect that for some reason has evolved over a lengthy period of time. After such a review of the distractions, the real work of completing the ICANN transition process will be more successful in my opinion. Can the Ombudsman comment on this proposal and/or perform such a review? Ron _____ From: Grace Abuhamad <grace.abuhamad(a)icann.org <javascript:return> >; To: Accountability Cross Community <accountability-cross-community(a)icann.org <javascript:return> >; Subject: [CCWG-ACCT] Meeting location Sent: Thu, Oct 15, 2015 10:58:48 PM Dear all, For those who are attending in person, the CCWG meeting will take place in Liffey Hall on the 1st floor on the convention center. I sent information about the shuttles to/from the hotel in a prior email <http://mm.icann.org/pipermail/accountability-cross-community/2015-October/0…> . For those attending remotely, please join us via the virtual meeting room at: https://icann.adobeconnect.com/dub54-liffeyhall2/ As a reminder, all ICANN meetings (including the chat rooms and mailing lists) follow ICANN’s Expected Standards of Behavior. For reference these are located here: <https://www.icann.org/resources/pages/expected-standards-2012-05-15-en> https://www.icann.org/resources/pages/expected-standards-2012-05-15-en. In the words of the ICANN Ombudsman from a note he sent to this list on 22 June: "May I implore participants to continue to note the ICANN policy on polite discourse. It is important to have a strong and vigorous debate but we don't need to make personal attacks on each other. A polite note of disagreement should be sufficient, and has been frequently used. But if we start to attack individuals on list, this will distract us from the real tasks.” Looking forward to seeing you in 8 hours, Grace

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Question on binding IRP
by León Felipe Sánchez Ambía Oct. 16, 2015

Oct. 16, 2015

Dear Holly, dear Rosemary, One key question that has been in the air and I believe is important to answer is the following: Does an entity that has no legal personhood ( i.e., is not an unincorporated association, partnership, corporation or natural person) can enter into binding arbitration under California law or applicable federal law? Could you please guide us on this issue. This, of course, certifies this question for you to work on it. Best regards, León

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The Sub-Groups tomorrow - the list
by Jordan Carter Oct. 16, 2015

Oct. 16, 2015

>From memory and for Bruce and other's info, the groups tomorrow are: 1. Decision-making (voting replacement - consensus-building) 2. Enforcement - focus on IRP and separation review, and the enforceability issues) 3. Removal of Individual Directors 4. Budget / Strategic / Activity plans More info later this afternoon/evening Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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Comparing single and multiple designators
by Thomas Rickert Oct. 16, 2015

Oct. 16, 2015

All, we have been approached with some questions about the differences between the Sole Designator Model and a Multiple Designator Model. Please find below some responses from our lawyers. This is certainly not all there is to say, but we hope is helps advance our discussion. Best, Thomas > > We understand questions are being asked about whether a single or multiple designator model is “better.” Which model better fits the interests of the ICANN multistakeholder community is not a judgment for counsel to make: it is for CCWG and the ICANN community to decide. Our role is to provide information about the legal implications so that you can make an informed decision. > > Outlined below is a summary of the differences between a single designator model (or Sole Designator model – “SD”; referred to also as a Community Designator Model) and a multiple SO/AC designator model (“MD”) from a legal perspective. > > · In the SD approach, the SD is an unincorporated association legal person with legal capacity and standing to enforce its rights, even if the participating SOs and ACs in the SD’s decision-making processes are not legal persons. > · In the MD approach, the enforceability of each SO’s and AC’s rights as a designator will depend (among other things) on that SO’s or AC’s legal personhood. > · In the SD approach, the SD would be the designator with the right to select and remove all directors, but it would do so based on direction from the appointing SO or AC, or through a NomCom-type process, or based on a community consensus mechanism, as required by the Bylaws. . > · In an MD approach, action to select and remove a director is directly undertaken by the single SO or AC that has that right. Any action requiring the SOs and ACs to act collectively such as recall of the entire Board (and to defer their individual decision rights to a community process) will require some mechanism to be developed to obligate each designator to coordinate its action with all others, complicating the MD option. > o Contractual agreements will not be available to accomplish this unless the designators are all legal persons with the capacity to contract. > o The Board recall function could be accomplished using pre-service springing resignation letters from each director as a condition to being appointed as a director. > o The Bylaws amendment functions (Fundamental and Standard) will be more difficult to address; a legal person can be given the right to consent to bylaws amendments, but it’s not clear who this person could be in the MD structure if each AC and SO is not willing to become a legal person. Perhaps a trustee for the community, or an unincorporated association to be developed? > · The MD structure is essentially what we have concluded ICANN has now, so it’s the closest of all models to the current structure. (However, as we have noted in prior advice, amendments to the Bylaws are needed to clarify designator rights – and ensure that the Board cannot unilaterally amend the Bylaws to remove designator rights.) > · The SD structure represents a greater change from the current structure (though less than a membership model). > · Because the SD structure requires decision-making processes for the SD to be set forth in the ICANN Bylaws, it is relatively straightforward to include in those processes, where appropriate, opportunities for the broader community, beyond the existing SOs and ACs, to be consulted and heard. > · Opportunities for input from the broader community could also be developed for an MD structure, although no community input to individual MD decision-making processes have yet been discussed, let alone developed. > > The list above is a short and broad summary. It has not gone through our usual internal review processes due to the request for an immediate reaction. We may have additional comments and insights if we applied those review processes, and would be happy to do so if asked. > > Rosemary and Holly

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