October 2015 - Accountability-Cross-Community

Fwd: Memorandum with Responses to Questions on Director Fiduciary Duties under California Law
by Mathieu Weill Oct. 13, 2015

Oct. 13, 2015

Dear Colleagues, Please find attached the memo from our counsel regarding fiduciary duties. This was request #71, certified on October 6. A very clear executive summary is provided, and I strongly encourage you to read it. Bruce, in your capacity of Board liaison, it would be greatly appreciated if you could share it with the whole Board, as I believe the question is a core concern for Board members. Best Mathieu -------- Message transféré -------- Sujet : Memorandum with Responses to Questions on Director Fiduciary Duties under California Law Date : Tue, 13 Oct 2015 04:09:36 +0000 De : Steven Chiodini <schiodini(a)adlercolvin.com> Pour : León Felipe Sánchez Ambía (leonfelipe(a)sanchez.mx) <leonfelipe(a)sanchez.mx>, Thomas Rickert <thomas(a)rickert.net>, Mathieu Weill <mathieu.weill(a)afnic.fr> Copie à : ACCT-Staff (acct-staff(a)icann.org) <acct-staff(a)icann.org>, ICANN-Adler <ICANN(a)adlercolvin.com>, sidleyicannccwg(a)sidley.com <sidleyicannccwg(a)sidley.com> Dear Co-Chairs and Staff: On behalf of our two firms, we are submitting the attached memorandum with responses to your certified questions on director fiduciary duties under California law, for distribution and posting by you. Best regards, Steven Chiodini, for Adler & Colvin and Sidley Austin LLP ===== Please be aware that this email is intended to provide a short response to the questions posed, without the benefit of legal research. If you would like a more thoroughly considered and researched response, please let us know. ===== Steven Chiodini Of Counsel Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 Tel: 415-421-7555 Fax: 415-421-0712 email: schiodini(a)adlercolvin.com www.adlercolvin.com The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at schiodini(a)adlercolvin.com, and delete all copies of this message and its attachments, if any. Thank you.

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A plea for time
by Chris Disspain Oct. 13, 2015

Oct. 13, 2015

Greetings, As we approach ICANN Dublin I have been asked by some of my ccTLD colleagues to set out clearly why as a ccTLD manager I support the Board proposals for improving ICANN's accountability as part of the transition. In essence for me it’s all about time. I believe that we, the community, can get the enhanced accountability we want now without the need for wholesale structural change. I'm not against change or indeed any of the models being proposed but I am against making such changes without carefully considering them over time. There is a significant amount of work to be done before deciding to make such important structural changes and all of that will take time and more research and stress testing and unforeseen consequence analysis and impact analysis. In essence the Board has supported the CCWG’s proposed fundamental bylaws and the binding IRP and has suggested that there be a Community IRP and a further fundamental bylaw setting in place an ongoing improvement mechanism that will allow the community to take the necessary time to consider the structural changes and to have confidence that the proposals arising from such a process will be implemented. I believe that the Community IRP does provide the community with the rights it seeks and that it can be implemented in a timeframe that does not jeopardise the transition. The Community IRP is an independent arbitration process for hearing community claims that the Board has acted outside of its by-laws. Under the process there is a legally enforceable and contractual obligation on ICANN to comply with a decision of the arbitration panel. I believe that the community find ourselves in our current difficult situation because, with the best of intentions, the CCWG’s attorneys have been instructed to come up with models that deliver ‘the highest possible levels of enforcement’. It is not that the Community IRP cannot deliver the enhanced accountability that we want but rather that it is perceived, by some, as inadequate because there is a different mechanism that delivers a higher level of enforceability. The CCWG appears to be requiring a mechanism that allows the community (in whatever guise we finally agree is acceptable) the absolute final say. The right to step over the Board's fiduciary duty without any check or balance in place to allow for the testing of the Board's claim that acting would indeed be in breach of such duty. I firmly believe in the corporate governance structures adopted by most corporate bodies around the world. Board members are appointed to manage the affairs of the organisation on the understanding that they are legally bound to act in the best interests of the organization rather than any one member or community. Such best interests are set out in the by-laws - in ICANN's case for example, the security and stability of the Internet as a whole. The Board has a fiduciary obligations to act in that way. The ICANN Board has proposed the Community IRP as binding arbitration. The CCWG’s attorneys have said that the Board can refuse to implement such a binding arbitration decision if it claims that to implement it would be a breach of its obligations to act in the best interests of ICANN. This is true BUT the community representatives can then go to court and a court will enforce the arbitration decision if it disagrees with the Board's view. In my opinion this is precisely the type of safeguard we need to have in place because it ensures that an elected board made up of representatives of the multi-stakeholder community will always act, first, in the interests of a stable and secure Internet and it puts in place an independent arbiter to decide, in the final analysis, if the community or the board is right. The alternative, it seems to me, is to create, now, a system where fiduciary duty is abandoned and the will of the community holds sway. That is in effect what happens under the membership model as described by the CCWG’s attorneys. This may well be acceptable in the future when all of the nuances have been thought through and the necessary community conflicts and ethics rules, accountability mechanisms and disclosure requirements have been agreed. But it will take time and testing and a fuller discussion. Fiduciary responsibilities and duties are there for a reason. I think that some in the community feel that the Board and ICANN legal sometimes use the ‘cloak’ of fiduciary responsibility to avoid doing what the community wants. Whilst I don’t believe that is true I do empathise with the feeling. To my mind the solution (at least at this time during the transition) is NOT to create a mechanism under which fiduciary duty is held by no one but rather to create a mechanism where the community can test the Board's claims about such duty. The Community IRP as suggested by the Board does just that. I want to stress again that I am not against any of the proposed models put forward by the CCWG. But I can't agree the models at this stage because I don’t believe we have enough detail and I think the community as a whole should take their time in considering making such important changes. And I do not agree with those who claim that "we must do it now because it's our only chance". I am very much looking forward to spending time with my ccTLD colleagues during the Dublin meeting and hope we will have the opportunity to talk, and not just about the transition. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo(a)auda.org.au <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.

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Re: [CCWG-ACCT] Accountability work headed to Dublin - Fadi's October 11 e-mail to certain "Community Leaders"
by Aikman-Scalese, Anne Oct. 13, 2015

Oct. 13, 2015

Thanks, Greg, for clarifying. I am recalling there was some discussion of this smaller group in one of our CCWG-ACCT calls and it was stated that the group would not be doing any substantive work but would rather just be trying to coordinate and narrow issues and then report back to the full CCWG. ( Of course narrowing issues does seem rather important at this stage.) I frankly recall supporting this idea in the chat, but of course did not realize the group’s work would focus on Fadi’s chart. My recollection of that chart is that it indicated via shading that the Community had already established broad agreement with respect to “All the dependencies” on the CWG-Stewardship Final Report. This of course is incorrect given that the CWG-Stewardship’s Final Report is premised on the enforceability guaranteed by the CMSM. (Perhaps this is one of the substantial revisions to which you were referring.) At this point, I am unsure as to how the chart and the substantial revisions that Community Leaders are making to the chart coordinates with the process of public comment review that the Working Party Chairs are facilitating. In this regard, it seems that there should be a correlation between the chart and the Public Comment summaries of the Working Parties. How do the Co-Chairs see the chart the leaders are working on as fitting in with the work of the CCWG? Thank you, Anne P.S. Do you know who is on the mailing list for global_leaders(a)icann.org<mailto:global_leaders@icann.org>? [cid:image001.gif@01D1050F.0856CE50] 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<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Monday, October 12, 2015 4:03 PM To: Aikman-Scalese, Anne Cc: Chartier, Mike S; Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-ACCT] Accountability work headed to Dublin - Fadi's October 11 e-mail to certain "Community Leaders" Anne, It's my understanding that the document attached to Fadi's email is being substantially revised, so I'm not sure of the efficacy of reviewing a document that is in the process of becoming obsolete. The "Community Leaders" in this instance are the chairs of the SO/AC/SG/C/RALOs. Greg On Mon, Oct 12, 2015 at 5:55 PM, Aikman-Scalese, Anne <AAikman(a)lrrlaw.com<mailto:AAikman@lrrlaw.com>> wrote: Thanks Mike. Good question. Separately, I understand that Fadi has sent out something he calls a “communications tool” to an e-mail l list of certain “Community Leaders” with respect to what must be accomplished by the CCWG-ACCT in Dublin. It includes a revised version of the chart we were presented with in an earlier call – showing a version of what line items in the CCWG-ACCT process are agreed and what items are disagreed. Fadi is seeking input on the chart from those copied on the e-mail. My question would be – How were these “Community Leaders” selected to receive Fadi’s e-mail? In the interest of transparency, would the Co-Chairs please forward Fadi’s Sunday October 11 e-mail on this topic to the entire CCWG – ACCT for its consideration? Thank you, 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<tel:520.629.4428> | (F) 520.879.4725<tel:520.879.4725> AAikman(a)lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.LRRLaw.com> -----Original Message----- From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Chartier, Mike S Sent: Saturday, October 10, 2015 5:58 PM To: Bruce Tonkin Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin How is this possibly clearer? Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14? Those are two different paths. > On Oct 10, 2015, at 7:03 PM, Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: > > Hello Paul, > > I will try to be clearer on the process for submission to the NTIA: > > From: https://community.icann.org/display/acctcrosscomm/Charter > > "Submission Board Report > > After receiving the notifications from all chartering organizations as described above, the Co-Chairs of the CCWG-Accountability shall, within 10 working days after receiving the last notification, submit to the Chair of the ICANN Board of Directors and Chairs of all the chartering organizations the CCWG-Accountability Board Report, which 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." > > > The Board will then meet to consider the CCWG-Accountability Board Report, and decide what, if any, comments to submit with the report taking into account (a), (b), and (c) above. > > > From: https://www.icann.org/news/announcement-3-2015-02-12-en > > > "When ICANN receives these proposals, we will forward them promptly and without modification to NTIA. When ICANN receives these proposals, we will forward them promptly and without modification to NTIA. As we have previously stated, if we do submit the proposals with an accompanying communication of comments, they will be on points we had already shared with the community during the development of the proposals. " > > > The NTIA has its own decision processes with respect to their stewardship of the IANA function. I can’t comment on what their process will be. > > > Separately the Board will need to meet to consider the implementation of recommendations from the CCWG to change the organization and bylaws. Bylaws changes are made when there is community support and when the Board believes they are in the global public interest. > > > On 16 October 2014, in Los Angeles, the Board set out its process for considering the changes proposed in the CCWG-Accountability Board Report. > > The process was based on similar processes used to accept policy recommendations from the supporting organizations (SOs) that exist in the bylaws today. > > See agenda item 2(d): > https://www.icann.org/resources/board-material/resolutions-2014-10-16- > en#2.d > > I hope that is clearer. > > Regards, > Bruce Tonkin > > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@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. §2510-2521. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@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. §2510-2521.

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Where do we stand?
by George Sadowsky Oct. 13, 2015

Oct. 13, 2015

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

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Accountability work headed to Dublin - Fadi's October 11 e-mail to certain "Community Leaders"
by Aikman-Scalese, Anne Oct. 13, 2015

Oct. 13, 2015

Thanks Mike. Good question. Separately, I understand that Fadi has sent out something he calls a “communications tool” to an e-mail l list of certain “Community Leaders” with respect to what must be accomplished by the CCWG-ACCT in Dublin. It includes a revised version of the chart we were presented with in an earlier call – showing a version of what line items in the CCWG-ACCT process are agreed and what items are disagreed. Fadi is seeking input on the chart from those copied on the e-mail. My question would be – How were these “Community Leaders” selected to receive Fadi’s e-mail? In the interest of transparency, would the Co-Chairs please forward Fadi’s Sunday October 11 e-mail on this topic to the entire CCWG – ACCT for its consideration? Thank you, 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 Chartier, Mike S Sent: Saturday, October 10, 2015 5:58 PM To: Bruce Tonkin Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin How is this possibly clearer? Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14? Those are two different paths. > On Oct 10, 2015, at 7:03 PM, Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au> wrote: > > Hello Paul, > > I will try to be clearer on the process for submission to the NTIA: > > From: https://community.icann.org/display/acctcrosscomm/Charter > > "Submission Board Report > > After receiving the notifications from all chartering organizations as described above, the Co-Chairs of the CCWG-Accountability shall, within 10 working days after receiving the last notification, submit to the Chair of the ICANN Board of Directors and Chairs of all the chartering organizations the CCWG-Accountability Board Report, which 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." > > > The Board will then meet to consider the CCWG-Accountability Board Report, and decide what, if any, comments to submit with the report taking into account (a), (b), and (c) above. > > > From: https://www.icann.org/news/announcement-3-2015-02-12-en > > > "When ICANN receives these proposals, we will forward them promptly and without modification to NTIA. When ICANN receives these proposals, we will forward them promptly and without modification to NTIA. As we have previously stated, if we do submit the proposals with an accompanying communication of comments, they will be on points we had already shared with the community during the development of the proposals. " > > > The NTIA has its own decision processes with respect to their stewardship of the IANA function. I can’t comment on what their process will be. > > > Separately the Board will need to meet to consider the implementation of recommendations from the CCWG to change the organization and bylaws. Bylaws changes are made when there is community support and when the Board believes they are in the global public interest. > > > On 16 October 2014, in Los Angeles, the Board set out its process for considering the changes proposed in the CCWG-Accountability Board Report. > > The process was based on similar processes used to accept policy recommendations from the supporting organizations (SOs) that exist in the bylaws today. > > See agenda item 2(d): > https://www.icann.org/resources/board-material/resolutions-2014-10-16- > en#2.d > > I hope that is clearer. > > Regards, > Bruce Tonkin > > > > > _______________________________________________ > 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. §2510-2521.

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Re: [CCWG-ACCT] AGENDA - Call #59
by Roelof Meijer Oct. 12, 2015

Oct. 12, 2015

With apologies, but I can only participate in the second half of the call Best, Roelof Meijer From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: maandag 12 oktober 2015 16:16 To: "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: [CCWG-ACCT] AGENDA - Call #59 Dear all, In anticipation of your call #59<https://community.icann.org/pages/viewpage.action?pageId=56140464> – Tuesday, 13 October from 12:00-14:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>), please find below a proposed agenda: 1. Welcome, roll-call, SoI 2. WP status updates * WP1 * WP2 * WP3 * WP4 * ST-WP 3. Update on legal requests 4. Update on plan B discussions 5. Timelines 6. Update on community leaders call 7. A.O.B Thank you, Kind regards Alice

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AGENDA - Call #59
by Alice Jansen Oct. 12, 2015

Oct. 12, 2015

Dear all, In anticipation of your call #59<https://community.icann.org/pages/viewpage.action?pageId=56140464> - Tuesday, 13 October from 12:00-14:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>), please find below a proposed agenda: 1. Welcome, roll-call, SoI 2. WP status updates * WP1 * WP2 * WP3 * WP4 * ST-WP 3. Update on legal requests 4. Update on plan B discussions 5. Timelines 6. Update on community leaders call 7. A.O.B Thank you, Kind regards Alice

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New (and long) IRP Decision
by Greg Shatan Oct. 12, 2015

Oct. 12, 2015

Vistaprint v. ICANN. Issued October 9. Have not read it yet.... https://www.icann.org/resources/files/1194117-2015-10-09-en Greg

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what specific powers / structures are objectionable to the board in Designator Model?
by Robin Gross Oct. 12, 2015

Oct. 12, 2015

It would be very helpful in trying to understand the board's concerns if someone from the board could say what are the specific powers and specific structures in a designator model that the board objects to. In last week's WP1 meeting, I asked that question of the board, but still have not received an answer to it, although it is a piece of information which is necessary to understanding where the concerns are so they can be addressed. Thanks. Robin

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Fwd: Memo on Current Corporate Status of ICANN, Designator Model
by León Felipe Sánchez Ambía Oct. 12, 2015

Oct. 12, 2015

Dear all, I am forwarding this Memo sent by Sidley Austin and Adler and Colvin in which they address the following question: “Under ICANN’s current structure, do SOs and ACs have legal rights to select directors in line with designator rights under the California statute? The summary conclusion is that yes. Also it is interesting to read the Memo as it concludes that ICANN could be considered, already, a designator organization but it warns, however, that the current bylaws lack detail in many aspects and that in order to avoid instability arising from such ambiguity, bylaws should be amended in order to address these areas subject to interpretation. It also states that, as things stand today, the Board could be able to modify the bylaws and take away any SOs and ACs designator powers and incumbent SO/ACs wouldn’t have any recourse to that action. My personal take after reading this memo is: a) We seem to be closer to empowering the community as proposed because we seem to already be a Designator organization; b) SO/ACs already have statutory powers but these could be taken away by a bylaw amendment; c) This could put us in a position in which we should only need to fill in the gaps that could bring instability (arising form ambiguity in current bylaws) in order to provide the proposed powers to the community while avoiding instability. Best regards, León > Inicio del mensaje reenviado: > > De: "Gregory L. Colvin" <colvin(a)adlercolvin.com> > Fecha: 11 de octubre de 2015, 11:56:53 p.m. GMT-5 > Para: León Felipe Sánchez Ambía (leonfelipe(a)sanchez.mx) <leonfelipe(a)sanchez.mx>, Thomas Rickert <thomas(a)rickert.net>, Mathieu Weill <mathieu.weill(a)afnic.fr> > Cc: "ACCT-Staff (acct-staff(a)icann.org)" <acct-staff(a)icann.org>, ICANN-Adler <ICANN(a)adlercolvin.com>, "sidleyicannccwg(a)sidley.com" <sidleyicannccwg(a)sidley.com> > Asunto: Memo on Current Corporate Status of ICANN, Designator Model > > Dear Co-chairs, CCWG: > > On behalf of Adler & Colvin and Sidley Austin LLP, we are now submitting this memo to you for distribution and posting, in response to your certified question. > > Thank you. > > Greg Colvin, for Holly and Rosemary > > Gregory L. Colvin > Adler & Colvin > 235 Montgomery Street, Suite 1220 > San Francisco, CA 94104 > Tel: 415-421-7555 x.211 > Fax: 415-421-0712 > email: colvin(a)adlercolvin.com <mailto:colvin@adlercolvin.com> > www.adlercolvin.com <http://www.adlercolvin.com/> > > The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at colvin(a)adlercolvin.com <mailto:colvin@adlercolvin.com>, and delete all copies of this message and its attachments, if any. Adler and Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. Thank you.

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