October 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] [Cctldworld] Dublin schedule changes and work plan
by Dr Eberhard W Lisse Oct. 14, 2015

Oct. 14, 2015

Byron, there is nothing wrong with the meetings team and doing their best to make additional opportunities available for the community to engage on the transition. What needs to be questioned, however, are the motives of the CCWG Co-Chair(s) for (ab)using the above, entirely separate matter, to spring more (internal) CCWG meetings on the CCWG members (and CCWG participants) which then, predictably, clash with other activities. They do stuff like this all the time. el -- Sent from Dr Lisse's iPad mini > On 13 Oct 2015, at 17:53, Byron Holland <byron.holland(a)cira.ca> wrote: > > Dear Colleagues, > > To clarify the current situation and end any potential speculation, this is the current situation as far as I know it. > > ICANN, based on feedback, is attempting to provide additional sessions on ICANN Accountability in Dublin. As such, yesterday, they convened a meeting of AC and SO Chairs, Stakeholder Groups, Constituency and RALO Chairs, as well as the CWG and CCWG Chairs to discuss possible scheduling and logistics options. A number of options were discussed that ranged from quite intrusive on the existing schedule to minimally invasive to no change at all. > > As you can imagine given the broad range of participants on the call, there were a range of opinions. As Chair of the ccNSO I spoke against the options that intruded on our Constituency days, but in the spirit of cooperation with other communities as well as a desire to create as many opportunities as possible for our ccTLD colleagues to engage in this important Accountability discussion, I was generally favourable to providing more chances for this dialogue to happen. > > I thought Jordan Carter (ccNSO member of the CCWG) summed up the current status quite well in his latest blog https://internetnz.nz/blog/hopes-dublin > > " As we count down the days to Dublin, let’s recommit ourselves to building an accountability settlement that works. Let’s remind ourselves that consensus and being flexible isn’t about “losing” anything and doesn’t have to be about second-bests." > > And if that includes some basic scheduling flexibility in an attempt to provide additional opportunities for dialogue and understanding on ICANN Accountability then I suggest that our ccTLD community would be well served by showing that flexibility. > > Best regards, > Byron > > > > > > -----Original Message----- > From: cctldworld-bounces(a)icann.org [mailto:cctldworld-bounces@icann.org] On Behalf Of Dr Eberhard W Lisse > Sent: October-13-15 10:25 AM > To: accountability-cross-community(a)icann.org > Cc: cctldcommunity(a)cctld-managers.org; directors(a)omadhina.net; ccnso-members(a)icann.org; cctldworld(a)icann.org > Subject: Re: [Cctldworld] [CCWG-ACCT] Dublin schedule changes and work plan > > I am not speculating about HOW it happened. > > The issue is what happened and perhaps why. And at least for the latter the how becomes "interesting". > > At the moment it looks like we were told, today, that we'll be having us a 5-Day CCWG meeting clashing with mainly everything, in particular Transition related activities of at least the ccNSO, ie it's Plan-D :-)-O > > Hence, and because I can't post the ccNSO Council, I'll cc the lists. > > greetings, el > > >> On 2015-10-13 16:01, Greg Shatan wrote: >> The speculation in this thread about how this decision was arrived at >> is incorrect. >> >> ICANN developed a plan with 3 options (A = no disruption, B = moderate >> disruption, C = significant disruption) for changing the >> ICANN54 schedule to add more time for Accountability-related meetings. >> This was not requested (as far as I know) by the CCWG Co-Chairs and >> certainly not by the AC/SO leaders. As far as I know, the impetus for >> this came from within ICANN. (The AC/SO leaders are the Chairs of each >> AC, SO, Stakeholder Group, Constituency and RALO.) The Chairs were >> given several days in which to confer with the stakeholders they >> represent in order to assess which option(s) they might find >> acceptable. >> >> After that, the call Mathieu mentioned took place. In addition to >> AC/SO/SG/C/RALO Chairs, the call included the co-chairs of the CCWG, >> CWG and ICG and members of ICANN staff. >> >> Greg >> >> On Tue, Oct 13, 2015 at 7:07 AM, Dr Eberhard W Lisse <el(a)lisse.na >> <mailto:el@lisse.na>> wrote: >> >> Well, >> >> I am an Observer to the ccNSO's Program Comittee. As such, I >> have indeed observed that Transition related activities take >> up a significant amount of the time of the two days of the >> ccNSO meeting. >> >> So James' statement, below, when read in itself, without >> context, is not false. >> >> But, it has nothing to do with springing today's surprise >> which would, in fact, make it worse, because these related >> events clashing. >> >> >> greetings, el >> >> >>> On 2015-10-13 12:45, James Gannon wrote: >>> I’m not Mathieu but I know that the ACSO leadership were >>> involved as changing the ICNN54 schedule to have a greater >>> focus on CCWG activities required a change in the scheduled >>> events for each of the Acs and Sos, so there will be items >>> removed from the current schedule in order to free up spaces >>> for the CCWG to be attended by members and participants from >>> the various parts of the community. >>> >>> -jg > [...] > -- > Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) > el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) > PO Box 8421 \ / > Bachbrecht, Namibia ;____/ > _______________________________________________ > Cctldworld mailing list > Cctldworld(a)icann.org > https://mm.icann.org/mailman/listinfo/cctldworld

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Re: [CCWG-ACCT] [icann-board] Where do we stand?
by Erika Mann Oct. 13, 2015

Oct. 13, 2015

Very quick reply, point 6 I recommended twice and we debated various options how this could be done. I still think this is a good idea George. And I agree with Ray (see his comments below). Erika Sent from my iPhone > On 13 Oct 2015, at 19:38, Ray Plzak <plzakr(a)gmail.com> wrote: > > George, > > Regarding your assertion “CANN does have responsibility for more than just being a secretariat for the ACs and the SOs…”. I agree and think that it should be taken one further. ICANN should not be the secretariat for any SO or AC. There should be a distinct secretariat for the GNSO; which should also have its own executive board. It is in this particular area where most of the accountability issues have arisen. The ASO does not receive any secretariat services from ICANN, it takes care of its own. The ccNSO should also have its own secretariat and executive board. As for the ACs there should be a separate secretariat that provides support for all of them except the GAC which has its own secretariat. This singular secretariat for the ACs should have some sort of executive board composed of members selected by the ACs that use the service. This separation of secretariat function would then allow ICANN and its board to focus on areas of general concern for all of the SOs and ACs such as the global public interest. I realize these suggestions would require structural changes both in the corporate organization and in the affected SOs and ACs. Of course there would have to be a discussion of revenue generation and distribution. This separation would enhance accountability as it would move decisions that are currently made by the ICANN board and staff to a point closer to SO and AC scrutiny and control. > > Just food for thought, > > Ray > > From: icann-board-bounces(a)icann.org [mailto:icann-board-bounces@icann.org] On Behalf Of George Sadowsky > Sent: Monday, October 12, 2015 3:33 AM > To: CCWG Accountability; Icann-board ICANN > Subject: [icann-board] Where do we stand? > > All, > > Where indeed? I'd like to contribute some thoughts, with a view toward helping the process toward closure, if possible. > > My goal is to try to find a way through the issues that appear to separate us, and to look for areas in which agreement might be able to be reached, and reasonably soon. By "us" in the previous sentence, I mean all of the people who have been involved in the CCWG deliberations in any way whatsoever, including Board members in their individual capacity. > > This is not an "us" versus "them" discussion; there are a lot of different opinions among this larger group of involved people, not to mention the larger ICANN community that has been rather silent but nevertheless observing. > > This entire message represents only my own personal opinions and concerns. > > I would like to make a contribution into resolving the apparent stumbling blocks that impede our progress on the accountability issue. This is the purpose of this message. > > I've now followed and occasionally contributed to this discussion for over two months. It has been difficult following the various discussions on the list because of the multiple issues that are threaded and intermingled. The descent of the discussion into opposing and apparently irreconcilable legal views has not assisted my understanding much and, perhaps naÃ¯vely, I had hoped for a clearer set of answers that would provide resolution on certain aspect. > > With respect to clarity of legal opinions and options, I understand that sometimes what is allowed is based on precedent, and where there is no precedent, it may be impossible to say with certainty what is allowed and what is not. Given the level of uncertainty that this introduces, I'd settle for 'relative certainty' if appropriately qualified. > > I'd like to provide two lists: (1) those things that guide my own thinking regarding acceptable solutions, and (2) questions that I wish could be answered with short, definitive and useful responses and that might contribute to some convergence in thinking. > > In my view, her are some of the issues that concern me in my attempt to think through the issues that we have been discussing: > > 1. ICANN does have responsibility for more than just being a secretariat for the ACs and the SOs, i.e. what I think of as the inner ICANN community. I put this in the category of the global public interest. It doesn't dominate our responsibilities, and in general it may only be a sliver of what we think about, but it exists. The ACs and the SOs may also reflect and respond to their notion of the public interest, but they are by their nature sectoral, and I don't expect them to be totally neutral in their thoughts or actions. They represent their constituencies. Perhaps in theory, the varied stakeholders cover the complete spectrum of interests and balance each other out, but there is no guarantee of this. > > The overriding responsibility for balance and interpretation for that sliver, even if it just a very very small part of what comes up at ICANN, is the Board's role and responsibility. Any changes in structure that have the possibility of the ICANN inner community totally capturing the Board are therefore not acceptable. > > 2. I understand and accept that there needs to be an equilibration of power and authority in any change in ICANN's structure. However, the change should result in a balance, and not in a reversal of what people believe is the current situation, i.e.that the Board has all of the power and the community has no recourse. Such a reversal would be equally bad. > > This is what causes me to discount any model that can lead to capture. The statutory powers of the member or designator appear to be powerful, and even if some are severely limited, I worry that these limitations can be overcome, and the Board will be disenfranchised. This amounts to capture. I know that there is disagreement about the nature an extent of such statutory powers and the extent to which they can be limited, temporarily or permanently and, among other things, this uncertainty translates for me into the possibility of capture. > > 3. Replacement of the entire Board, if it occurs, is a very serious event, It will have significant repercussions not only within ICANN but internationally with respect to competing venues for so-called Internet governance. For this reason, we need both a very high bar to it occurring, and we need to ensure that there are very good reasons for the action to be taken. > > For example, if every AC ad SO in the inner community decided that the Board should be replaced, that would be a signal that something was seriously wrong, and the Board should be replaced. However,if there were any significant part of the inner community that disagreed with replacing the Board, then initiating the action to replace would be seen as a dispute between parts of that community, taking the Board as hostage and employing a Draconian procedure to force a majority opinion on a minority of the community. If this happens, it will turn ICANN into a battleground, and we won't have to worry about being taken seriously; we won't. The bar should be high enough so that if this action is taken, fit should be quite clear that no significant part of the community is against it. > > 4. I agree with the implication of Cherine's argument that removal of any director should be based upon a public rationale, an appropriate due process, and should be the result of broader community action, rather than that of a single AC or SO. The counter argument that I've heard is that other not-for-profit organizations can replace their directors if they want, so why can't we? > > My response is that ICANN is not an ordinary not-forprofit. On the contrary, the totality of our membership consists of stakeholder groups with different and often competing goals, and under the currently proposed plan the manipulation of Board representation therefore can reflect attempts at control through the Board. Such a change of behavior would contradict current bylaws in ways that have been articulated by Cherine and others. Most other not-for-profits are considerably more homogeneous and have shared goals, and the Board is generally not an arbiter of long run competing sectoral goals. > > 5. The models that we have been talking about are legal constructs, and we will need to respect their existence as frameworks for governance. But we need to remember that are the means to the ends that we want to achieve. I would rather prefer to define the goals precisely -- both the powers given to the actors as well as the constraints on their activities, and then see which model fits best. > > To do that, we need to understand well the differences between what the models offer, but first we need to agree upon the goals in terms of scope of authority, power and constraints. Sometimes it seems we mix them up in ways that obscure and even retard progress. progress. > > 6. I watch in horror the multi-million dollar duel of lawyers that has been going on for some time and appears to have no end. Why is it not possible to give them free rein to discuss the issue more dispassionately and come up with common positions with the possibility of deviations? I fear that a need to win may be transforming this part of our discussion into a lose-lose scenario. If so, the lawyers will still get rich, but ICANN, the community, and the whole world will lose. Can't we lock them in a room and not let them out until we see the white smoke coming from the chimney? (:-) > > > > In order to assist in resolving our current difficulties, here are some issues that I believe are pertinent. I raise them in the form of questions., for I believe that there is not a common precise understanding of them. Is it possible to provide simple and direct answers to them that might be useful for establishing greater understanding of the differences that still exist and beginning to bridge them? That would be helpful. > > A. It appears that the single designator model is very much the same as the single member mode, but with the only statutory power being to select or remove directors. In general, is this correct? In brief, what are the other differences? > > To establish any new structure the community still needs to address a range of open topics to ensure ICANN’s stability and freedom from capture: > • which SO and AC will participate in the decision-making mechanism (which SOs and ACs will opt-in)? For dismissal of the entire Board, why should it not require active assent of all ACs and SOs? > • what will be the Decision basis among participating SOs and ACs by _____ % of all SOs and ACs?? > • how will advice from those SOs and ACs opting-out of the decision-making mechanism (similar to GAC/Board advice?) be taken into consideration? > • how will will conflicts of interest and fiduciary or other responsibilities (such as public interest) will be factored into overall decision-making ? > > B. In Buenos Aires, there was discussion and convergence (I thought) on an "empowered AC/SO" model. Does this model offer any initial point for movement to convergence of opinion? > > C. The Board proposal calls for each AC/SO to decide if they are for or against and issue instead of possibly dividing its "vote". Is this a show-stopper? > > D. The Board proposal allows any AC/SO to weigh in on a particular issue (and decide to exercise or oppose the use of one of the powers. The CCWG proposal requires and AC/SO to decide ahead of time whether it will participate in future uses of the powers. Is this a show-stopper? > > E. What would the community take as evidence in the short term that the Board is acting in good faith? I'm concerned by what appears to be Board bashing on the list, wherein many things that any of us say or do are interpreted negatively and perhaps conspiratorially. I realize that the great majority of people involved int he CCSG process do not have such attitudes, but predictably it only takes a very few individuals to sour and confuse a discussion and lessen its utility. > > I'm sure that these questions reflect my limited and imperfect understanding of the situation, and perhaps some naïveté also, but there aren't many other ways to gain a productive understanding of it. > > > Comments welcome. > > George > > > > _______________________________________________ > icann-board mailing list > icann-board(a)icann.org > https://mm.icann.org/mailman/listinfo/icann-board

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FW: Rx for Dublin Progress: Board Transparency, Specificity, and Community Acknowledgement
by Phil Corwin Oct. 13, 2015

Oct. 13, 2015

FYI, I just published these personal views on procedural adjustments that I believe might improve the odds for a successful outcome in Dublin. I hope you find them constructive and of interest. Best regards http://www.circleid.com/posts/20151013_rx_for_dublin_board_transparency_spe… Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4447/10811 - Release Date: 10/13/15 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4447/10811 - Release Date: 10/13/15 -- You received this message because you are subscribed to the Google Groups "ICA Mail" group. To unsubscribe from this group and stop receiving emails from it, send an email to ica-mail+unsubscribe(a)googlegroups.com. To post to this group, send email to ica-mail(a)googlegroups.com. Visit this group at http://groups.google.com/group/ica-mail. To view this discussion on the web visit https://groups.google.com/d/msgid/ica-mail/8E84A14FB84B8141B0E4713BAFF5B84E…. For more options, visit https://groups.google.com/d/optout. ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4447/10811 - Release Date: 10/13/15

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Changed Mailing List functionality??
by Paul Rosenzweig Oct. 13, 2015

Oct. 13, 2015

It seems that all of a sudden the mailing list functionality has changed so that the author is NOT in the "from" line any more. (see example below) Can we revert to the former system? My filters screen at least in part based upon who is the author and I would prefer to have earlier notice of that .... Paul Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Mailing List for the ICANN Accountability & Governance Cross Community Group [mailto:accountability-cross-community@icann.org] Sent: Tuesday, October 13, 2015 7:17 PM To: Aikman-Scalese, Anne <AAikman(a)lrrlaw.com>; David Post <david.g.post(a)gmail.com>; Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] A contractual solution for the "membership"/accountability problem Anne, The Sidley memo makes it clear that we do not have clarity on what constitutes a fiduciary duty and what does not. Clearly budget and plan are in the ring. If we had been asking for the power to unilaterally change Bylaws, that, in my mind, would be out of scope. But since we are asking for joint agreement, I think we are ok. Director removal (1 by 1 or en masse seems to be ok, since it is a designator right and the most recent Sidley memo says that we are designators even if the word is not used. So I think we are ok with all but bidget/plan. But to be honest, if we ever have to ditch the board to effect accountability, I think that we will be in a VERY poor position to defend ICANN's position in Internet governance and in overseeing the areas that we are responsible for. There are many forces around that would be delighted to see us break down in internal battles. As I said in an earlier message, a superbly accountable ICANN that no longer has any responsibility is not particularly attractive to me. Alan At 13/10/2015 06:41 PM, Aikman-Scalese, Anne wrote: >P.S. to Alan: my understanding is that the member model is the only >way to relieve the Board of fiduciary responsibility as to retained >community powers. > > Now it appears that under the CA statute, the proposal for binding > arbitration as to issues proposed for community enforceability would > violate that fiduciary duty. In other words, in the current corporate > structure, the Board cannot properly delegate any of the decisions > listed in the community powers in Items 1-6 in the Plan B chart from > this morning's call to an arbitration panel (except maybe removal of > directors for cause?.) Perhaps this was abundantly clear to everyone > else but me? Steve and Jonathan? > >This makes me wonder whether the Board's MEM proposal was reviewed for >compliance with CA law by Jones Day. I don't recall the Board stating >the MEM proposal and the binding arbitration mechanism would not apply >to budget and strategic plan but maybe they already said >that. So again, how does that fit with the >Final Report of the CWG-Stewardship? > >Anne > >Anne E. Aikman-Scalese >Of Counsel >Lewis Roca Rothgerber LLP | >One South Church Avenue Suite 700 >Tucson, Arizona 85701-1611 >(T) 520.629.4428 | (F) 520.879.4725 >AAikman(a)lrrlaw.com | www.LRRLaw.com > >-----Original Message----- >From: Alan Greenberg [mailto:alan.greenberg@mcgill.ca] >Sent: Tuesday, October 13, 2015 3:18 PM >To: Aikman-Scalese, Anne; David Post; Accountability Cross Community >Subject: RE: [CCWG-ACCT] A contractual solution for the >"membership"/accountability problem > >Yes I read it. It does say that the line is unclear, but that certain >responsibilities cannot be delegated including budget and strategic. >Plan. Our lawyers have been clear for a long time that budget and plan >veto are problematic in a non-member situation. And that matches the >Board's position that to give this up impacts their fiduciary duty (and >I agree). > >The ALAC has said it would reluctantly accept the member model, but it >is not our preference, and that implies we are willing to forego the >budget/plan veto. > >Alan > >At 13/10/2015 05:45 PM, Aikman-Scalese, Anne wrote: > >Alan, did you read the Sidley memo Mathieu circulated that says the > >in the current corporate structure, the ICANN Board cannot delegate > >decision-making in relation to the corporation to any third party, > >including via binding arbitration? This is on page 2 of the Appendix. > >Wouldn't that also impact a contract theory where decision-making in > >relation to budget/plan veto is delegated via contract to the party > >on the other side of the contract? > >Anne > > > >Anne E. Aikman-Scalese > >Of Counsel > >Lewis Roca Rothgerber LLP | > >One South Church Avenue Suite 700 > >Tucson, Arizona 85701-1611 > >(T) 520.629.4428 | (F) 520.879.4725 > >AAikman(a)lrrlaw.com | www.LRRLaw.com > >-----Original Message----- > >From: > >accountability-cross-community-bounces(a)icann.org > >[mailto:accountability-cross-community-bounces@icann.org] > >On Behalf Of Alan Greenberg > >Sent: Tuesday, October 13, 2015 1:36 PM > >To: David Post; Accountability Cross Community > >Subject: Re: [CCWG-ACCT] A contractual solution for the > >"membership"/accountability problem > > > >With the usual "I am not a lawyer disclosure", my understanding is > >that the Bylaws are effectively a contract. In all of the contructs > >(whether it is the CMSM, CMSD or (my most recent > >proposal) CMSanything, there is an UA composed of the AC/SO (or a > >subset), or in the earlier models multiple UA, one per AC/SO. In the > >Board proposal, since I do not believe that the AC/SO Chairs are > >willing to assume responsibility for taking actions personally (nor > >should they be expected to), there would also have to be an UA formed > >to act on behalf of the AC/SOs. As I understand it, the UA would have > >to exist at the time the of the violation or act that it was > >complaining about, so that really implies it would have to exist at > >the start (since one cannot predict when trouble will arise. > > > >So in my mind, the CMSx, the Board proposal, and your new one all > >really have a common construct of a UA acting on behalf of the AC/SOs. > >The differences are in how the "contract" or the Bylaws allow the UA > >to act. > > > >The recent legal briefing on our current model (ie in the Bylaws > >today) says that although the AC/SOs and NomCom that appoint board > >members are not called designators, for all intents, they are. The > >new constructs (any of them) would allow the AC/SOs or a subset to > >exercise the powers other than appointment of directors. We have been > >told (by CCWG > >lawyers) that these powers are enforceable (other than budget/plan > >veto). > > > > From a practical point of view, I think that all of the proposals > > are in fact very close to each other, but the different terminology > > and in some cases, a lack of precision masks that similarity. > > > >Alan > > > >At 13/10/2015 04:08 PM, David Post wrote: > > > > >To all: > > > > > >David Johnson and I have been developing an idea that might be able > > >to break the impasse between the Board and the stakeholders > > >regarding the membership model as a vehicle for community control > > >over the Board's actions. Here's David's description of the overall idea: > > > > > >ICANN Accountability Â Back to Contract > > > > > >There is broad agreement that the community powers recommended by > > >the CCWG should be "enforceable"?. The proposal assumes that the > > >Unincorporated Association that would enforce them would have to be > > >created by, and made the sole "member"? of ICANN, by means of an > > >amendment to ICANN's bylaws. Only the Board can amend the bylaws, > > >and they do not want to create a member. This would appear to > > >create an unresolvable stalemate. Until one recalls the scene from > > >Indiana Jones when, treated by a knife twirling thug, the hero > > >remembers that he has a gun and uses it. > > > > > >As CCWG's counsel have noted, an unincorporated association can be > > >formed by any group with the requisite intent, with minimal formality. > > >So the community UA, consisting of and acting only at the direction > > >of the SOs and ACs that make up the ICANN community, could be > > >formed directly by the actions of that community. The UA, now a > > >legal person, could enter into contracts (using whatever > > >decision-making process is provided in the UA's own bylaws). It > > >could, for example, make an offer to enter into a contract with > > >ICANN itself. Such a contract might provide that ICANN would > > >promise to adopt and abide by a specified set of bylaws (notably, > > >those providing for community powers and an enhanced IRP). The > > >contract could provide for specific performance and dispute > > >resolution (not unlike the MEM, but with the group doing the > > >"enforcing"? having been formed in advance of any bylaw violation). > > >The contract could make individual SOs and ACs, or even > > >subcomponents of these, into third party beneficiaries entitled to enforce the contractual promises as against the ICANN corporation. > > >In light of these commitments, the community UA could itself then > > >promise to give its collective approval to the IANA transition. > > > > > >ICANN's Board would still need to agree to any such contract, to > > >make it binding. But the Board would no longer have an objection > > >based on supposed dangers of creating a "member"?. It has said it > > >agrees that the proposed community powers should be enforceable, > > >and that IRP decisions enforcing revised bylaws and mission > > >statement should be binding. The CCWG can reach its own consensus > > >on what contractual terms (what draft bylaws to include by > > >reference and what community decision-making process to use > > >regarding decisions to offer and enforce the contract). It would be > > >difficult for the Board to refuse to sign such a contract Â once > > >supported and offered by an Unincorporated Association consisting > > >of the community and > > acting with requisite consensus). > > > > > >The community only supported "membership"? > > >because this was thought to be the only way to make the proposed > > >community powers enforceable against a reluctant ICANN board. If > > >there is another way to accomplish enforceability, while avoiding > > >the Board's objections to "structural change"? of ICANN itself, > > >that should be acceptable. That "other way" is to enter into a > > >contract under which ICANN promises to adopt and comply with > > >specified bylaws and to establish a binding IRP. > > >Because there won't be a binding IRP to enforce a duty to create a > > >binding IRP, the registry constituency has already suggested that > > >there be a contract that requires ICANN to follow through on that promise. > > >This suggestion just applies the same principle to the entire > > >community and all of the proposed community powers. It's time for > > >ccwg to start drafting contract terms. > > > > > > > > >*********************************************** > > > > > >Here's a rough outline of the logistics of how this would work: > > > > > >Acting by consensus resolution, SOs and ACs would form an > > >unincorporated association. This would include writing bylaws > > >regarding decision-making process for the UA (action solely at > > >direction of consensus of SOs/ACs?) As its first act, the UA would > > >offer ICANN a contract with the following terms. > > > > > >1. ICANN would agree to adopt and abide by a specified set of > > >bylaws (which would be attached as an exhibit to the contract) that > > >set forth community powers and establishment of binding IRP. > > > > > >2. The contract would have a term coterminous with ICANN's > > >existence and could not be cancelled. (no expiration date and no > > >grounds for termination by ICANN) > > > > > >3. The contract would call for specific performance. > > > > > >4. Disputes would be resolved by the IRP, and would be binding on > > >ICANN (even if ICANN chose not to appear before the panel). > > > > > >5. In addition to the UA itself, Any two SOs or ACs, acting by > > >internal consensus, could bring a case to enforce the provisions, > > >and ICANN would pay the costs of such a case. > > > > > >6. The contract would name as third party beneficiaries any > > >Individual SO/AC, sub constituencies and any parties materially > > >harmed by breach of the agreement - providing that these third > > >parties could also bring a case to enforce the agreement, at their > > >own expense, with costs allocated by the IRP). > > > > > >7. ICANN would promise that, in the event the terms of the contract > > >could not be enforced in the absence of a "membership" structure, > > >it would recognize the UA as a member under California law. > > > > > >8. ICANN would warrant that it has the authority to enter into the > > >agreement and agree that it will not assert in the future that > > >compliance with the contract would be prevented by any claimed > > >conflict between the contract and the ability of the Board to > > >exercise its fiduciary duties. > > > > > >9. The UA would agree, in light of these ICANN promises, to support > > >the transition (treating ICANN as the steward of the IANA function > > >and as the source of policy for dns absent any ability of US > > >Government to take that role away). > > > > > >Obviously, there are still some unresolved details regarding what > > >the bylaws would say (e.g., re community oversight of budget). > > >These would have to be resolved. > > > > > > > > >David > > >******************************* > > >David G Post - Senior Fellow, Open Technology Institute/New America > > >Foundation blog (Volokh Conspiracy) > > >http://www.washingtonpost.com/people/david-post > > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > > >http://tinyurl.com/davidpostmusic publications etc. > > >http://www.davidpost.com > > >******************************* > > > > > >******************************* > > >David G Post - Senior Fellow, Open Technology Institute/New America > > >Foundation blog (Volokh Conspiracy) > > >http://www.washingtonpost.com/people/david-post > > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > > >http://tinyurl.com/davidpostmusic publications etc. > > >http://www.davidpost.com > > >******************************* > > >_______________________________________________ > > >Accountability-Cross-Community mailing list > > >Accountability-Cross-Community(a)icann.org > > >https://mm.icann.org/mailman/listinfo/accountability-cross-communit > > >y > > > >_______________________________________________ > >Accountability-Cross-Community mailing list > >Accountability-Cross-Community(a)icann.org > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > >________________________________ > > > >This message and any attachments are intended only for the use of the > >individual or entity to which they are addressed. If the reader of > >this message or an attachment is not the intended recipient or the > >employee or agent responsible for delivering the message or > >attachment to the intended recipient you are hereby notified that any > >dissemination, distribution or copying of this message or any > >attachment is strictly prohibited. If you have received this > >communication in error, please notify us immediately by replying to > >the sender. The information transmitted in this message and any > >attachments may be privileged, is intended only for the personal and > >confidential use of the intended recipients, and is covered by the > >Electronic Communications Privacy Act, 18 U.S.C. Â§2510-2521. > > >________________________________ > >This message and any attachments are intended only for the use of the >individual or entity to which they are addressed. If the reader of this >message or an attachment is not the intended recipient or the employee >or agent responsible for delivering the message or attachment to the >intended recipient you are hereby notified that any dissemination, >distribution or copying of this message or any attachment is strictly >prohibited. If you have received this communication in error, please >notify us immediately by replying to the sender. The information >transmitted in this message and any attachments may be privileged, is >intended only for the personal and confidential use of the intended >recipients, and is covered by the Electronic Communications Privacy >Act, 18 U.S.C. §2510-2521. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

2 1

Re: [CCWG-ACCT] A contractual solution for the "membership"/accountability problem
by Mailing List for the ICANN Accountability & Governance Cross Community Group Oct. 13, 2015

Oct. 13, 2015

Anne, The Sidley memo makes it clear that we do not have clarity on what constitutes a fiduciary duty and what does not. Clearly budget and plan are in the ring. If we had been asking for the power to unilaterally change Bylaws, that, in my mind, would be out of scope. But since we are asking for joint agreement, I think we are ok. Director removal (1 by 1 or en masse seems to be ok, since it is a designator right and the most recent Sidley memo says that we are designators even if the word is not used. So I think we are ok with all but bidget/plan. But to be honest, if we ever have to ditch the board to effect accountability, I think that we will be in a VERY poor position to defend ICANN's position in Internet governance and in overseeing the areas that we are responsible for. There are many forces around that would be delighted to see us break down in internal battles. As I said in an earlier message, a superbly accountable ICANN that no longer has any responsibility is not particularly attractive to me. Alan At 13/10/2015 06:41 PM, Aikman-Scalese, Anne wrote: >P.S. to Alan: my understanding is that the >member model is the only way to relieve the >Board of fiduciary responsibility as to retained community powers. > > Now it appears that under the CA statute, the > proposal for binding arbitration as to issues > proposed for community enforceability would > violate that fiduciary duty. In other words, > in the current corporate structure, the Board > cannot properly delegate any of the decisions > listed in the community powers in Items 1-6 in > the Plan B chart from this morning's call to an > arbitration panel (except maybe removal of > directors for cause?.) Perhaps this was > abundantly clear to everyone else but me? Steve and Jonathan? > >This makes me wonder whether the Board's MEM >proposal was reviewed for compliance with CA >law by Jones Day. I don't recall the Board >stating the MEM proposal and the binding >arbitration mechanism would not apply to budget >and strategic plan but maybe they already said >that. So again, how does that fit with the >Final Report of the CWG-Stewardship? > >Anne > >Anne E. Aikman-Scalese >Of Counsel >Lewis Roca Rothgerber LLP | >One South Church Avenue Suite 700 >Tucson, Arizona 85701-1611 >(T) 520.629.4428 | (F) 520.879.4725 >AAikman(a)lrrlaw.com | www.LRRLaw.com > >-----Original Message----- >From: Alan Greenberg [mailto:alan.greenberg@mcgill.ca] >Sent: Tuesday, October 13, 2015 3:18 PM >To: Aikman-Scalese, Anne; David Post; Accountability Cross Community >Subject: RE: [CCWG-ACCT] A contractual solution >for the "membership"/accountability problem > >Yes I read it. It does say that the line is >unclear, but that certain responsibilities >cannot be delegated including budget and strategic. >Plan. Our lawyers have been clear for a long >time that budget and plan veto are problematic >in a non-member situation. And that matches the >Board's position that to give this up impacts >their fiduciary duty (and I agree). > >The ALAC has said it would reluctantly accept >the member model, but it is not our preference, >and that implies we are willing to forego the budget/plan veto. > >Alan > >At 13/10/2015 05:45 PM, Aikman-Scalese, Anne wrote: > >Alan, did you read the Sidley memo Mathieu circulated that says the in > >the current corporate structure, the ICANN Board cannot delegate > >decision-making in relation to the corporation to any third party, > >including via binding arbitration? This is on page 2 of the Appendix. > >Wouldn't that also impact a contract theory where decision-making in > >relation to budget/plan veto is delegated via contract to the party on > >the other side of the contract? > >Anne > > > >Anne E. Aikman-Scalese > >Of Counsel > >Lewis Roca Rothgerber LLP | > >One South Church Avenue Suite 700 > >Tucson, Arizona 85701-1611 > >(T) 520.629.4428 | (F) 520.879.4725 > >AAikman(a)lrrlaw.com | www.LRRLaw.com > >-----Original Message----- > >From: > >accountability-cross-community-bounces(a)icann.org > >[mailto:accountability-cross-community-bounces@icann.org] > >On Behalf Of Alan Greenberg > >Sent: Tuesday, October 13, 2015 1:36 PM > >To: David Post; Accountability Cross Community > >Subject: Re: [CCWG-ACCT] A contractual solution for the > >"membership"/accountability problem > > > >With the usual "I am not a lawyer disclosure", my understanding is that > >the Bylaws are effectively a contract. In all of the contructs (whether > >it is the CMSM, CMSD or (my most recent > >proposal) CMSanything, there is an UA composed of the AC/SO (or a > >subset), or in the earlier models multiple UA, one per AC/SO. In the > >Board proposal, since I do not believe that the AC/SO Chairs are > >willing to assume responsibility for taking actions personally (nor > >should they be expected to), there would also have to be an UA formed > >to act on behalf of the AC/SOs. As I understand it, the UA would have > >to exist at the time the of the violation or act that it was > >complaining about, so that really implies it would have to exist at the > >start (since one cannot predict when trouble will arise. > > > >So in my mind, the CMSx, the Board proposal, and your new one all > >really have a common construct of a UA acting on behalf of the AC/SOs. > >The differences are in how the "contract" or the Bylaws allow the UA to > >act. > > > >The recent legal briefing on our current model (ie in the Bylaws today) > >says that although the AC/SOs and NomCom that appoint board members are > >not called designators, for all intents, they are. The new constructs > >(any of them) would allow the AC/SOs or a subset to exercise the powers > >other than appointment of directors. We have been told (by CCWG > >lawyers) that these powers are enforceable (other than budget/plan > >veto). > > > > From a practical point of view, I think that all of the proposals are > > in fact very close to each other, but the different terminology and in > > some cases, a lack of precision masks that similarity. > > > >Alan > > > >At 13/10/2015 04:08 PM, David Post wrote: > > > > >To all: > > > > > >David Johnson and I have been developing an idea that might be able > > >to break the impasse between the Board and the stakeholders regarding > > >the membership model as a vehicle for community control over the > > >Board's actions. Here's David's description of the overall idea: > > > > > >ICANN Accountability Â Back to Contract > > > > > >There is broad agreement that the community powers recommended by the > > >CCWG should be "enforceable"?. The proposal assumes that the > > >Unincorporated Association that would enforce them would have to be > > >created by, and made the sole "member"? of ICANN, by means of an > > >amendment to ICANN's bylaws. Only the Board can amend the bylaws, and > > >they do not want to create a member. This would appear to create an > > >unresolvable stalemate. Until one recalls the scene from Indiana > > >Jones when, treated by a knife twirling thug, the hero remembers that > > >he has a gun and uses it. > > > > > >As CCWG's counsel have noted, an unincorporated association can be > > >formed by any group with the requisite intent, with minimal formality. > > >So the community UA, consisting of and acting only at the direction > > >of the SOs and ACs that make up the ICANN community, could be formed > > >directly by the actions of that community. The UA, now a legal > > >person, could enter into contracts (using whatever decision-making > > >process is provided in the UA's own bylaws). It could, for example, > > >make an offer to enter into a contract with ICANN itself. Such a > > >contract might provide that ICANN would promise to adopt and abide by > > >a specified set of bylaws (notably, those providing for community > > >powers and an enhanced IRP). The contract could provide for specific > > >performance and dispute resolution (not unlike the MEM, but with the > > >group doing the "enforcing"? having been formed in advance of any > > >bylaw violation). The contract could make individual SOs and ACs, or > > >even subcomponents of these, into third party beneficiaries entitled > > >to enforce the contractual promises as against the ICANN corporation. > > >In light of these commitments, the community UA could itself then > > >promise to give its collective approval to the IANA transition. > > > > > >ICANN's Board would still need to agree to any such contract, to make > > >it binding. But the Board would no longer have an objection based on > > >supposed dangers of creating a "member"?. It has said it agrees that > > >the proposed community powers should be enforceable, and that IRP > > >decisions enforcing revised bylaws and mission statement should be > > >binding. The CCWG can reach its own consensus on what contractual > > >terms (what draft bylaws to include by reference and what community > > >decision-making process to use regarding decisions to offer and > > >enforce the contract). It would be difficult for the Board to refuse > > >to sign such a contract Â once supported and offered by an > > >Unincorporated Association consisting of the community and > > acting with requisite consensus). > > > > > >The community only supported "membership"? > > >because this was thought to be the only way to make the proposed > > >community powers enforceable against a reluctant ICANN board. If > > >there is another way to accomplish enforceability, while avoiding the > > >Board's objections to "structural change"? of ICANN itself, that > > >should be acceptable. That "other way" is to enter into a contract > > >under which ICANN promises to adopt and comply with specified bylaws > > >and to establish a binding IRP. > > >Because there won't be a binding IRP to enforce a duty to create a > > >binding IRP, the registry constituency has already suggested that > > >there be a contract that requires ICANN to follow through on that promise. > > >This suggestion just applies the same principle to the entire > > >community and all of the proposed community powers. It's time for > > >ccwg to start drafting contract terms. > > > > > > > > >*********************************************** > > > > > >Here's a rough outline of the logistics of how this would work: > > > > > >Acting by consensus resolution, SOs and ACs would form an > > >unincorporated association. This would include writing bylaws > > >regarding decision-making process for the UA (action solely at > > >direction of consensus of SOs/ACs?) As its first act, the UA would > > >offer ICANN a contract with the following terms. > > > > > >1. ICANN would agree to adopt and abide by a specified set of bylaws > > >(which would be attached as an exhibit to the contract) that set > > >forth community powers and establishment of binding IRP. > > > > > >2. The contract would have a term coterminous with ICANN's existence > > >and could not be cancelled. (no expiration date and no grounds for > > >termination by ICANN) > > > > > >3. The contract would call for specific performance. > > > > > >4. Disputes would be resolved by the IRP, and would be binding on > > >ICANN (even if ICANN chose not to appear before the panel). > > > > > >5. In addition to the UA itself, Any two SOs or ACs, acting by > > >internal consensus, could bring a case to enforce the provisions, and > > >ICANN would pay the costs of such a case. > > > > > >6. The contract would name as third party beneficiaries any > > >Individual SO/AC, sub constituencies and any parties materially > > >harmed by breach of the agreement - providing that these third > > >parties could also bring a case to enforce the agreement, at their > > >own expense, with costs allocated by the IRP). > > > > > >7. ICANN would promise that, in the event the terms of the contract > > >could not be enforced in the absence of a "membership" structure, it > > >would recognize the UA as a member under California law. > > > > > >8. ICANN would warrant that it has the authority to enter into the > > >agreement and agree that it will not assert in the future that > > >compliance with the contract would be prevented by any claimed > > >conflict between the contract and the ability of the Board to > > >exercise its fiduciary duties. > > > > > >9. The UA would agree, in light of these ICANN promises, to support > > >the transition (treating ICANN as the steward of the IANA function > > >and as the source of policy for dns absent any ability of US > > >Government to take that role away). > > > > > >Obviously, there are still some unresolved details regarding what the > > >bylaws would say (e.g., re community oversight of budget). These > > >would have to be resolved. > > > > > > > > >David > > >******************************* > > >David G Post - Senior Fellow, Open Technology Institute/New America > > >Foundation blog (Volokh Conspiracy) > > >http://www.washingtonpost.com/people/david-post > > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > > >http://tinyurl.com/davidpostmusic publications etc. > > >http://www.davidpost.com > > >******************************* > > > > > >******************************* > > >David G Post - Senior Fellow, Open Technology Institute/New America > > >Foundation blog (Volokh Conspiracy) > > >http://www.washingtonpost.com/people/david-post > > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > > >http://tinyurl.com/davidpostmusic publications etc. > > >http://www.davidpost.com > > >******************************* > > >_______________________________________________ > > >Accountability-Cross-Community mailing list > > >Accountability-Cross-Community(a)icann.org > > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > >_______________________________________________ > >Accountability-Cross-Community mailing list > >Accountability-Cross-Community(a)icann.org > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > >________________________________ > > > >This message and any attachments are intended only for the use of the > >individual or entity to which they are addressed. If the reader of this > >message or an attachment is not the intended recipient or the employee > >or agent responsible for delivering the message or attachment to the > >intended recipient you are hereby notified that any dissemination, > >distribution or copying of this message or any attachment is strictly > >prohibited. If you have received this communication in error, please > >notify us immediately by replying to the sender. The information > >transmitted in this message and any attachments may be privileged, is > >intended only for the personal and confidential use of the intended > >recipients, and is covered by the Electronic Communications Privacy > >Act, 18 U.S.C. Â§2510-2521. > > >________________________________ > >This message and any attachments are intended >only for the use of the individual or entity to >which they are addressed. If the reader of this >message or an attachment is not the intended >recipient or the employee or agent responsible >for delivering the message or attachment to the >intended recipient you are hereby notified that >any dissemination, distribution or copying of >this message or any attachment is strictly >prohibited. If you have received this >communication in error, please notify us >immediately by replying to the sender. The >information transmitted in this message and any >attachments may be privileged, is intended only >for the personal and confidential use of the >intended recipients, and is covered by the >Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

2 1

Re: [CCWG-ACCT] A contractual solution for the "membership"/accountability problem
by Mailing List for the ICANN Accountability & Governance Cross Community Group Oct. 13, 2015

Oct. 13, 2015

At 13/10/2015 06:31 PM, Aikman-Scalese, Anne wrote: >Thanks Alan. Does the CWG-Stewardship Final >Report permit the CCWG-ACCT to forego the >budget/plan veto and rely only on director removal? Good question. My recollection is that the budget veto foceses mainly on the IANA budget (and there is no rationale for it to be more over-reaching than that on te budget. I believe it also requires board removal. Alan >Is there an intention that it is only the >director removal that would be submitted to >binding arbitration under the Board's MEM proposal? >Anne > >Anne E. Aikman-Scalese >Of Counsel >Lewis Roca Rothgerber LLP | >One South Church Avenue Suite 700 >Tucson, Arizona 85701-1611 >(T) 520.629.4428 | (F) 520.879.4725 >AAikman(a)lrrlaw.com | www.LRRLaw.com > >-----Original Message----- >From: Alan Greenberg [mailto:alan.greenberg@mcgill.ca] >Sent: Tuesday, October 13, 2015 3:18 PM >To: Aikman-Scalese, Anne; David Post; Accountability Cross Community >Subject: RE: [CCWG-ACCT] A contractual solution >for the "membership"/accountability problem > >Yes I read it. It does say that the line is >unclear, but that certain responsibilities >cannot be delegated including budget and strategic. >Plan. Our lawyers have been clear for a long >time that budget and plan veto are problematic >in a non-member situation. And that matches the >Board's position that to give this up impacts >their fiduciary duty (and I agree). > >The ALAC has said it would reluctantly accept >the member model, but it is not our preference, >and that implies we are willing to forego the budget/plan veto. > >Alan > >At 13/10/2015 05:45 PM, Aikman-Scalese, Anne wrote: > >Alan, did you read the Sidley memo Mathieu circulated that says the in > >the current corporate structure, the ICANN Board cannot delegate > >decision-making in relation to the corporation to any third party, > >including via binding arbitration? This is on page 2 of the Appendix. > >Wouldn't that also impact a contract theory where decision-making in > >relation to budget/plan veto is delegated via contract to the party on > >the other side of the contract? > >Anne > > > >Anne E. Aikman-Scalese > >Of Counsel > >Lewis Roca Rothgerber LLP | > >One South Church Avenue Suite 700 > >Tucson, Arizona 85701-1611 > >(T) 520.629.4428 | (F) 520.879.4725 > >AAikman(a)lrrlaw.com | www.LRRLaw.com > >-----Original Message----- > >From: > >accountability-cross-community-bounces(a)icann.org > >[mailto:accountability-cross-community-bounces@icann.org] > >On Behalf Of Alan Greenberg > >Sent: Tuesday, October 13, 2015 1:36 PM > >To: David Post; Accountability Cross Community > >Subject: Re: [CCWG-ACCT] A contractual solution for the > >"membership"/accountability problem > > > >With the usual "I am not a lawyer disclosure", my understanding is that > >the Bylaws are effectively a contract. In all of the contructs (whether > >it is the CMSM, CMSD or (my most recent > >proposal) CMSanything, there is an UA composed of the AC/SO (or a > >subset), or in the earlier models multiple UA, one per AC/SO. In the > >Board proposal, since I do not believe that the AC/SO Chairs are > >willing to assume responsibility for taking actions personally (nor > >should they be expected to), there would also have to be an UA formed > >to act on behalf of the AC/SOs. As I understand it, the UA would have > >to exist at the time the of the violation or act that it was > >complaining about, so that really implies it would have to exist at the > >start (since one cannot predict when trouble will arise. > > > >So in my mind, the CMSx, the Board proposal, and your new one all > >really have a common construct of a UA acting on behalf of the AC/SOs. > >The differences are in how the "contract" or the Bylaws allow the UA to > >act. > > > >The recent legal briefing on our current model (ie in the Bylaws today) > >says that although the AC/SOs and NomCom that appoint board members are > >not called designators, for all intents, they are. The new constructs > >(any of them) would allow the AC/SOs or a subset to exercise the powers > >other than appointment of directors. We have been told (by CCWG > >lawyers) that these powers are enforceable (other than budget/plan > >veto). > > > > From a practical point of view, I think that all of the proposals are > > in fact very close to each other, but the different terminology and in > > some cases, a lack of precision masks that similarity. > > > >Alan > > > >At 13/10/2015 04:08 PM, David Post wrote: > > > > >To all: > > > > > >David Johnson and I have been developing an idea that might be able > > >to break the impasse between the Board and the stakeholders regarding > > >the membership model as a vehicle for community control over the > > >Board's actions. Here's David's description of the overall idea: > > > > > >ICANN Accountability Â Back to Contract > > > > > >There is broad agreement that the community powers recommended by the > > >CCWG should be "enforceable"?. The proposal assumes that the > > >Unincorporated Association that would enforce them would have to be > > >created by, and made the sole "member"? of ICANN, by means of an > > >amendment to ICANN's bylaws. Only the Board can amend the bylaws, and > > >they do not want to create a member. This would appear to create an > > >unresolvable stalemate. Until one recalls the scene from Indiana > > >Jones when, treated by a knife twirling thug, the hero remembers that > > >he has a gun and uses it. > > > > > >As CCWG's counsel have noted, an unincorporated association can be > > >formed by any group with the requisite intent, with minimal formality. > > >So the community UA, consisting of and acting only at the direction > > >of the SOs and ACs that make up the ICANN community, could be formed > > >directly by the actions of that community. The UA, now a legal > > >person, could enter into contracts (using whatever decision-making > > >process is provided in the UA's own bylaws). It could, for example, > > >make an offer to enter into a contract with ICANN itself. Such a > > >contract might provide that ICANN would promise to adopt and abide by > > >a specified set of bylaws (notably, those providing for community > > >powers and an enhanced IRP). The contract could provide for specific > > >performance and dispute resolution (not unlike the MEM, but with the > > >group doing the "enforcing"? having been formed in advance of any > > >bylaw violation). The contract could make individual SOs and ACs, or > > >even subcomponents of these, into third party beneficiaries entitled > > >to enforce the contractual promises as against the ICANN corporation. > > >In light of these commitments, the community UA could itself then > > >promise to give its collective approval to the IANA transition. > > > > > >ICANN's Board would still need to agree to any such contract, to make > > >it binding. But the Board would no longer have an objection based on > > >supposed dangers of creating a "member"?. It has said it agrees that > > >the proposed community powers should be enforceable, and that IRP > > >decisions enforcing revised bylaws and mission statement should be > > >binding. The CCWG can reach its own consensus on what contractual > > >terms (what draft bylaws to include by reference and what community > > >decision-making process to use regarding decisions to offer and > > >enforce the contract). It would be difficult for the Board to refuse > > >to sign such a contract Â once supported and offered by an > > >Unincorporated Association consisting of the community and > > acting with requisite consensus). > > > > > >The community only supported "membership"? > > >because this was thought to be the only way to make the proposed > > >community powers enforceable against a reluctant ICANN board. If > > >there is another way to accomplish enforceability, while avoiding the > > >Board's objections to "structural change"? of ICANN itself, that > > >should be acceptable. That "other way" is to enter into a contract > > >under which ICANN promises to adopt and comply with specified bylaws > > >and to establish a binding IRP. > > >Because there won't be a binding IRP to enforce a duty to create a > > >binding IRP, the registry constituency has already suggested that > > >there be a contract that requires ICANN to follow through on that promise. > > >This suggestion just applies the same principle to the entire > > >community and all of the proposed community powers. It's time for > > >ccwg to start drafting contract terms. > > > > > > > > >*********************************************** > > > > > >Here's a rough outline of the logistics of how this would work: > > > > > >Acting by consensus resolution, SOs and ACs would form an > > >unincorporated association. This would include writing bylaws > > >regarding decision-making process for the UA (action solely at > > >direction of consensus of SOs/ACs?) As its first act, the UA would > > >offer ICANN a contract with the following terms. > > > > > >1. ICANN would agree to adopt and abide by a specified set of bylaws > > >(which would be attached as an exhibit to the contract) that set > > >forth community powers and establishment of binding IRP. > > > > > >2. The contract would have a term coterminous with ICANN's existence > > >and could not be cancelled. (no expiration date and no grounds for > > >termination by ICANN) > > > > > >3. The contract would call for specific performance. > > > > > >4. Disputes would be resolved by the IRP, and would be binding on > > >ICANN (even if ICANN chose not to appear before the panel). > > > > > >5. In addition to the UA itself, Any two SOs or ACs, acting by > > >internal consensus, could bring a case to enforce the provisions, and > > >ICANN would pay the costs of such a case. > > > > > >6. The contract would name as third party beneficiaries any > > >Individual SO/AC, sub constituencies and any parties materially > > >harmed by breach of the agreement - providing that these third > > >parties could also bring a case to enforce the agreement, at their > > >own expense, with costs allocated by the IRP). > > > > > >7. ICANN would promise that, in the event the terms of the contract > > >could not be enforced in the absence of a "membership" structure, it > > >would recognize the UA as a member under California law. > > > > > >8. ICANN would warrant that it has the authority to enter into the > > >agreement and agree that it will not assert in the future that > > >compliance with the contract would be prevented by any claimed > > >conflict between the contract and the ability of the Board to > > >exercise its fiduciary duties. > > > > > >9. The UA would agree, in light of these ICANN promises, to support > > >the transition (treating ICANN as the steward of the IANA function > > >and as the source of policy for dns absent any ability of US > > >Government to take that role away). > > > > > >Obviously, there are still some unresolved details regarding what the > > >bylaws would say (e.g., re community oversight of budget). These > > >would have to be resolved. > > > > > > > > >David > > >******************************* > > >David G Post - Senior Fellow, Open Technology Institute/New America > > >Foundation blog (Volokh Conspiracy) > > >http://www.washingtonpost.com/people/david-post > > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > > >http://tinyurl.com/davidpostmusic publications etc. > > >http://www.davidpost.com > > >******************************* > > > > > >******************************* > > >David G Post - Senior Fellow, Open Technology Institute/New America > > >Foundation blog (Volokh Conspiracy) > > >http://www.washingtonpost.com/people/david-post > > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > > >http://tinyurl.com/davidpostmusic publications etc. > > >http://www.davidpost.com > > >******************************* > > >_______________________________________________ > > >Accountability-Cross-Community mailing list > > >Accountability-Cross-Community(a)icann.org > > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > >_______________________________________________ > >Accountability-Cross-Community mailing list > >Accountability-Cross-Community(a)icann.org > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > >________________________________ > > > >This message and any attachments are intended only for the use of the > >individual or entity to which they are addressed. If the reader of this > >message or an attachment is not the intended recipient or the employee > >or agent responsible for delivering the message or attachment to the > >intended recipient you are hereby notified that any dissemination, > >distribution or copying of this message or any attachment is strictly > >prohibited. If you have received this communication in error, please > >notify us immediately by replying to the sender. The information > >transmitted in this message and any attachments may be privileged, is > >intended only for the personal and confidential use of the intended > >recipients, and is covered by the Electronic Communications Privacy > >Act, 18 U.S.C. Â§2510-2521. > > >________________________________ > >This message and any attachments are intended >only for the use of the individual or entity to >which they are addressed. If the reader of this >message or an attachment is not the intended >recipient or the employee or agent responsible >for delivering the message or attachment to the >intended recipient you are hereby notified that >any dissemination, distribution or copying of >this message or any attachment is strictly >prohibited. If you have received this >communication in error, please notify us >immediately by replying to the sender. The >information transmitted in this message and any >attachments may be privileged, is intended only >for the personal and confidential use of the >intended recipients, and is covered by the >Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

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Notes from Briefing with Counsel for Plan B Proposal Meeting - Thursday 8 October 2015 @ 21:00 UTC
by Grace Abuhamad Oct. 13, 2015

Oct. 13, 2015

Dear all, The notes, recordings and transcripts for the Briefing with Counsel for Plan B Proposal Meeting - Thursday 8 October 2015 @ 21:00 UTC will be available here: https://community.icann.org/x/BahYAw A copy of the notes may be found below. AC room recording: https://icann.adobeconnect.com/p46pejy7tf3/ Briefing with Counsel for Plan B Proposal Meeting - Thursday 8 October 2015 @ 21:00 UTC Attendees in AC room: CCWG: Steve DelBianco; Jonathan Zuck; Kavouss Arasteh Counsel: Ingrid Mittermaier; Michael Clark; Rosemary Fei (and Ed McNicholas and Holly Gregory on the phone line only) Notes: Today's discussion revolves around the text here: http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00 6125.html Kavouss added an edit (underlined here): 1. Power to block a proposed Operating Plan/Strat Plan/Budget with limitation on rejection/ Veto ( maximum 3 times ) 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation. 3. Power to block changes to standard Blaws. 4. Power to appoint and remove individual board Directors possibly with the approval of the entire community 5. Power to recall the entire board of Directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICCANNs Board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model) All decision taken on the above would require consensus , without more than two Advice against that ( non-voting of ACs) I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what weâ€™ve heard recently, the board will support the powers described above. Action for Steve/Jonathan: revise chart per call discussions (MEM / Single Designator / Single Member) and send to lawyers before they can proceed with their work. Actions for lawyers: * Assess level of effort to do 2-part project as follows: * Part 1: completing the chart shown in AC. The chart shows the 6 Powers and their enforcement in Board's MEM (within Bylaws), Designator, Sole Member. For first pass, only do each of the 3 as described. (If there is extra time, the lawyers can study options for personhood for SO/ACs in the models). * Part 2: Plan B design and lockdown Lawyers would like for this to be a priority if this needs to be ready by Dublin. The more the documents can look simpler, the better. Minimal change is preferred.

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Notes-Recordings-Transcript links for Stress Tests Meeting | 13 October
by Mailing List for the ICANN Accountability & Governance Cross Community Group Oct. 13, 2015

Oct. 13, 2015

Hello all, The notes, recordings and transcripts for the Stress Tests Meeting #12 on 13 October will be available here: https://community.icann.org/x/DapYAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Documents Presented * <https://community.icann.org/download/attachments/56142349/Stress%20Tests%20… 20version%202.pdf?version=1&modificationDate=1444765123000&api=v2> Stress Tests - analysis of PC2 version 2.pdf Notes 1) ST 18 for CCWG Consideration * Document at https://community.icann.org/x/bAEdAw under ST 18 rationale.docx 12 Oct 2015 * Given criticality of ST18 it will be presented to the full CCWG * Remove example in both places. * New rationale for including ST18 as per requests on last call. * Thomas Schneider (GAC): fyi: among gov input in the public comment period i have the following that failed to see a sense/rational in st18: SP, AR, FR, NO, BR, * New document will be included in the participant reading pack for Dublin so it can be discussed by the full CWG. * GAC participant still do not understand the need for ST18. 2) Divergence response on ST 29, 30 21, and 33 * Document at https://community.icann.org/display/acctcrosscomm/ST-WP+Draft+Documents - Oct 12 2015 Stress Tests - analysis of PC2 [version 2].docx * ST 29, 30 Consequences proposed by the authors of ST29,30 should not of been included as is and should be replaced as proposed. Proposed: ST team recommends that the "consequence" stated in ST 29 and ST 30 be replaced with o "ICANN's enforcement of registry and registrar contract terms might be blocked by an IRP ruling citing amended Mission and Core Values. " o Also, the ST team recommends that the conclusion of ST 29 and 30 be replaced with "Proposed measures would be adequate to challenge ICANN enforcement actions, but it is unlikely that IRP panels would block enforcement of voluntary contract terms and consensus policies" * ST21 - second read - recommendation to maintain this as is. o ST Team believes we should retain current ST 21 analysis and not recommend other actions, pending policy development by the ccNSO. * ST33 - amend: The ST team recommends that we amend the conclusion of ST 33 (para 988) to o " Proposed accountability measures would be adequate, provided that the bylaws requirement for a "bottom-up, consensus-based, multistakeholder process" is interpreted by the board and IRP panelists to include assessment of how decisions were reached in an AC or SO." * Re - not allowing ACs to vote - o The ST team notes that a small minority of commenters opposed giving ACs voting roles, and therefore recommends. 3) New Stress Tests * Include new stress test for possible deadlock for a change to bylaws or fundamental bylaws. 4) Re-running all Stress Tests on new model (if needed) * If the CCWG settles on a new MODEL SDB noted that all stress tests would have to be rerun. * There was a suggestion on the CCWG call that the ST WP look at running the stress tests vs the three current models. Participants should consider running 1 test per category for a total of 5. However and hopefully coming out of Dublin the number of models will be reduced. AOB - none Adjourned.

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A contractual solution for the "membership"/accountability problem
by David Post Oct. 13, 2015

Oct. 13, 2015

To all: David Johnson and I have been developing an idea that might be able to break the impasse between the Board and the stakeholders regarding the membership model as a vehicle for community control over the Board's actions. Here's David's description of the overall idea: ICANN Accountability Back to Contract There is broad agreement that the community powers recommended by the CCWG should be enforceable. The proposal assumes that the Unincorporated Association that would enforce them would have to be created by, and made the sole member of ICANN, by means of an amendment to ICANNs bylaws. Only the Board can amend the bylaws, and they do not want to create a member. This would appear to create an unresolvable stalemate. Until one recalls the scene from Indiana Jones when, treated by a knife twirling thug, the hero remembers that he has a gun and uses it. As CCWGs counsel have noted, an unincorporated association can be formed by any group with the requisite intent, with minimal formality. So the community UA, consisting of and acting only at the direction of the SOs and ACs that make up the ICANN community, could be formed directly by the actions of that community. The UA, now a legal person, could enter into contracts (using whatever decision-making process is provided in the UAs own bylaws). It could, for example, make an offer to enter into a contract with ICANN itself. Such a contract might provide that ICANN would promise to adopt and abide by a specified set of bylaws (notably, those providing for community powers and an enhanced IRP). The contract could provide for specific performance and dispute resolution (not unlike the MEM, but with the group doing the enforcing having been formed in advance of any bylaw violation). The contract could make individual SOs and ACs, or even subcomponents of these, into third party beneficiaries entitled to enforce the contractual promises as against the ICANN corporation. In light of these commitments, the community UA could itself then promise to give its collective approval to the IANA transition. ICANNs Board would still need to agree to any such contract, to make it binding. But the Board would no longer have an objection based on supposed dangers of creating a member. It has said it agrees that the proposed community powers should be enforceable, and that IRP decisions enforcing revised bylaws and mission statement should be binding. The CCWG can reach its own consensus on what contractual terms (what draft bylaws to include by reference and what community decision-making process to use regarding decisions to offer and enforce the contract). It would be difficult for the Board to refuse to sign such a contract once supported and offered by an Unincorporated Association consisting of the community and acting with requisite consensus). The community only supported membership because this was thought to be the only way to make the proposed community powers enforceable against a reluctant ICANN board. If there is another way to accomplish enforceability, while avoiding the Boards objections to structural change of ICANN itself, that should be acceptable. That "other way" is to enter into a contract under which ICANN promises to adopt and comply with specified bylaws and to establish a binding IRP. Because there wont be a binding IRP to enforce a duty to create a binding IRP, the registry constituency has already suggested that there be a contract that requires ICANN to follow through on that promise. This suggestion just applies the same principle to the entire community and all of the proposed community powers. Its time for ccwg to start drafting contract terms. *********************************************** Here's a rough outline of the logistics of how this would work: Acting by consensus resolution, SOs and ACs would form an unincorporated association. This would include writing bylaws regarding decision-making process for the UA (action solely at direction of consensus of SOs/ACs?) As its first act, the UA would offer ICANN a contract with the following terms. 1. ICANN would agree to adopt and abide by a specified set of bylaws (which would be attached as an exhibit to the contract) that set forth community powers and establishment of binding IRP. 2. The contract would have a term coterminous with ICANNs existence and could not be cancelled. (no expiration date and no grounds for termination by ICANN) 3. The contract would call for specific performance. 4. Disputes would be resolved by the IRP, and would be binding on ICANN (even if ICANN chose not to appear before the panel). 5. In addition to the UA itself, Any two SOs or ACs, acting by internal consensus, could bring a case to enforce the provisions, and ICANN would pay the costs of such a case. 6. The contract would name as third party beneficiaries any Individual SO/AC, sub constituencies and any parties materially harmed by breach of the agreement providing that these third parties could also bring a case to enforce the agreement, at their own expense, with costs allocated by the IRP). 7. ICANN would promise that, in the event the terms of the contract could not be enforced in the absence of a membership structure, it would recognize the UA as a member under California law. 8. ICANN would warrant that it has the authority to enter into the agreement and agree that it will not assert in the future that compliance with the contract would be prevented by any claimed conflict between the contract and the ability of the Board to exercise its fiduciary duties. 9. The UA would agree, in light of these ICANN promises, to support the transition (treating ICANN as the steward of the IANA function and as the source of policy for dns absent any ability of US Government to take that role away). Obviously, there are still some unresolved details regarding what the bylaws would say (e.g., re community oversight of budget). These would have to be resolved. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com ******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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A Contract Solution?
by Paul Rosenzweig Oct. 13, 2015

Oct. 13, 2015

Colleagues David Post, who is listed as an observer of this group (he says incorrectly that he is a participant) asked me to post the following message on his behalf suggesting an alternate way of going forward. I am not sure what I think of his idea, but I imagine it might be useful to some. If I have erred in posting this in violation of some rule please accept my apologies. I have assumed that the Staff who might correct this mistake (Grace or Brenda) are en route to Dublin and out of pocket. Paul *** To all: David Johnson and I have been developing an idea that might be able to break the impasse between the Board and the stakeholders regarding the membership model as a vehicle for community control over the Board's actions. Here's David's description of the overall idea: ICANN Accountability Back to Contract There is broad agreement that the community powers recommended by the CCWG should be enforceable. The proposal assumes that the Unincorporated Association that would enforce them would have to be created by, and made the sole member of ICANN, by means of an amendment to ICANNs bylaws. Only the Board can amend the bylaws, and they do not want to create a member. This would appear to create an unresolvable stalemate. Until one recalls the scene from Indiana Jones when, treated by a knife twirling thug, the hero remembers that he has a gun and uses it. As CCWGs counsel have noted, an unincorporated association can be formed by any group with the requisite intent, with minimal formality. So the community UA, consisting of and acting only at the direction of the SOs and ACs that make up the ICANN community, could be formed directly by the actions of that community. The UA, now a legal person, could enter into contracts (using whatever decision-making process is provided in the UAs own bylaws). It could, for example, make an offer to enter into a contract with ICANN itself. Such a contract might provide that ICANN would promise to adopt and abide by a specified set of bylaws (notably, those providing for community powers and an enhanced IRP). The contract could provide for specific performance and dispute resolution (not unlike the MEM, but with the group doing the enforcing having been formed in advance of any bylaw violation). The contract could make individual SOs and ACs, or even subcomponents of these, into third party beneficiaries entitled to enforce the contractual promises as against the ICANN corporation. In light of these commitments, the community UA could itself then promise to give its collective approval to the IANA transition. ICANNs Board would still need to agree to any such contract, to make it binding. But the Board would no longer have an objection based on supposed dangers of creating a member. It has said it agrees that the proposed community powers should be enforceable, and that IRP decisions enforcing revised bylaws and mission statement should be binding. The CCWG can reach its own consensus on what contractual terms (what draft bylaws to include by reference and what community decision-making process to use regarding decisions to offer and enforce the contract). It would be difficult for the Board to refuse to sign such a contract once supported and offered by an Unincorporated Association consisting of the community and acting with requisite consensus). The community only supported membership because this was thought to be the only way to make the proposed community powers enforceable against a reluctant ICANN board. If there is another way to accomplish enforceability, while avoiding the Boards objections to structural change of ICANN itself, that should be acceptable. That "other way" is to enter into a contract under which ICANN promises to adopt and comply with specified bylaws and to establish a binding IRP. Because there wont be a binding IRP to enforce a duty to create a binding IRP, the registry constituency has already suggested that there be a contract that requires ICANN to follow through on that promise. This suggestion just applies the same principle to the entire community and all of the proposed community powers. Its time for ccwg to start drafting contract terms. Here's a rough outline of the logistics of how this would work: Acting by consensus resolution, SOs and ACs would form an unincorporated association. This would include writing bylaws regarding decision-making process for the UA (action solely at direction of consensus of SOs/ACs?) As its first act, the UA would offer ICANN a contract with the following terms. 1. ICANN would agree to adopt and abide by a specified set of bylaws (which would be attached as an exhibit to the contract) that set forth community powers and establishment of binding IRP. 2. The contract would have a term coterminous with ICANNs existence and could not be cancelled. (no expiration date and no grounds for termination by ICANN) 3. The contract would call for specific performance. 4. Disputes would be resolved by the IRP, and would be binding on ICANN (even if ICANN chose not to appear before the panel). 5. In addition to the UA itself, Any two SOs or ACs, acting by internal consensus, could bring a case to enforce the provisions, and ICANN would pay the costs of such a case. 6. The contract would name as third party beneficiaries any Individual SO/AC, sub constituencies and any parties materially harmed by breach of the agreement providing that these third parties could also bring a case to enforce the agreement, at their own expense, with costs allocated by the IRP). 7. ICANN would promise that, in the event the terms of the contract could not be enforced in the absence of a membership structure, it would recognize the UA as a member under California law. 8. ICANN would warrant that it has the authority to enter into the agreement and agree that it will not assert in the future that compliance with the contract would be prevented by any claimed conflict between the contract and the ability of the Board to exercise its fiduciary duties. 9. The UA would agree, in light of these ICANN promises, to support the transition (treating ICANN as the steward of the IANA function and as the source of policy for dns absent any ability of US Government to take that role away). Obviously, there are still some unresolved details regarding what the bylaws would say (e.g., re community oversight of budget). These would have to be resolved. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com ******************************* 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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