October 2015 - Accountability-Cross-Community

Notes-Recordings-Transcript links for ST-WP Meeting | 7 October
by Brenda Brewer Oct. 7, 2015

Oct. 7, 2015

Hello all, The notes, recordings and transcripts for the Stress Tests meeting on 7 October will be available here: https://community.icann.org/x/pqVYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM - Rewrite rationale for stress test 18. Address Rafael's engagement process related question Notes Review of analysis of public comments on Second Draft Areas of consensus - no commenters expresses overall concerns with STs. Stress tests on capture or unintended consequences of changes are areas needing clarification. Is our analysis of ST 35 (unintended consequences of operationalizing advisory groups) complete? No feedback. Requests for New stress tests: Conduct new stress test on deadlock over approving changes to fundamental bylaws and blocking changes to regular bylaws. Should this be taken on? The ST-WP could respond to comment and explain why it cannot be addressed. No conclusion. Areas of convergence: 1) stress test 21 regarding revocation and reassignment. We stayed away from it per CWG-stewardship. ccNSO indicated that policy is underway. We should retain ST21 analysis ant not recommend other actions. No feedback. 2) Stress tests 29 and 30 - submissions were concerned with content regulation. 7 objected to inclusion. Contract enforcement would not be affected by mission and core values. Suggest adding something that would carve out contract enforcement so that it would not be affected by IRP; 3) Stress test 18. 16 comments were in favor of Bylaws changes. 4 comments were opposed to Bylaws changes. Olga in LA commented that governments did not submit comment but are against stress test 18. Suggestion to remove freedom of expression example. No objection. How does one instruct ICANN Board? Board needs to understand level of support. Board action is subject to IRP if top down - outside bylaws - if went into content. We are awaiting text from GAC that would reframe ST18 - instructing Board on how it understands advice. Conclusion is we should clarify ICANN Bylaw. Request for rationale. Is the GAC working on text - should we wait for that or proceed with writing new rationale? Feedback: - The perspective of the bylaw changes from the Board does not change the essence of ST 18 but it does consider differently how the GAC makes its decisions. It does not change our concern for this ST 18. - If bylaw change sets out clearly obligation is only to negotiate a solution and only kicks in if the Board has rejected consensus-based advice (GAC free to define consensus as appropriate). The re-writing by GAC individuals has not got to GAC-wide exchange yet. Need CCWG explication of rationale and purpose in tandem with this effort. - Cannot understand why ST 18 is needed. - Fail to see what problem is. ST 18's purpose is to skip engagement step when GAC provides advice to Board. If no solution can be found, ICANN Board will state why advice was not followed. Board has ability to reject GAC advice. what is advantage to skip engagement steps? - It needs to be clear how this relates to transition requirement. ACTION ITEM - Rewrite rationale for stress test 18. Address Rafael's engagement process related question

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Re: [CCWG-ACCT] Message from ICANN Board re Designator Model
by avri doria Oct. 7, 2015

Oct. 7, 2015

Add to that it is not a nominating committe because no one gets to approve the choices. It is a selection committee. It is a completely unaccountable selection committee where only the legal staff reviews the choices. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Kieren McCarthy <kieren(a)kierenmccarthy.com> </div><div>Date:10/06/2015 7:29 PM (GMT-05:00) </div><div>To: Phil Corwin <psc(a)vlaw-dc.com> </div><div>Cc: CCWG Accountability <accountability-cross-community(a)icann.org> </div><div>Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model </div><div> </div>Before everyone starts persuading themselves that the NomCom isn't all that bad, please consider: * The criteria for selection are secret * The meetings are secret * The NomCom views public disclosure of any candidates names, even by the candidates themselves, as a bad thing * A former chair-elect resigned because he was "sickened" by how it worked (lobbying, abuse of travel support, insider culture, refusal to listen to formal advice) * It was set up to replace direct elections and is an active impediment to discussions about how real elections might actually work * It has been repeatedly criticized for poor working methods and failure to communicate with candidates * It is entirely self-contained. NomCom members often fail to turn up to meetings but it is not reported back; NomCom members are not required to explain their decisions. * It gets the same number of people applying each year - 80-90 - and each year says that is a great number with no explanation or analysis * It measures its own success. And agrees each year that it has done a terrific job The fact that the NomCom exists at all is a sign that ICANN has not matured to the point where it can do what thousands of other organizations achieve every year: open elections with selections made by the whole community rather than a secretive subset of community members who lobby extremely hard to be selected. Kieren On Tue, Oct 6, 2015 at 3:18 PM, Phil Corwin <psc(a)vlaw-dc.com> wrote: > Hello George. > > I have no quarrel with the fine and dedicated work of the NomCom. > > I do have a quarrel with the notion that the Board is significantly more > representative and protective of the global Internet community and its > interests than the members of the ICANN community, who contribute tens of > millions of dollars' worth of unpaid labor on behalf of ICANN and its > objectives each and every year. > > Best regards, Philip > > 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 > > > -----Original Message----- > From: George Sadowsky [mailto:george.sadowsky@gmail.com] > Sent: Tuesday, October 06, 2015 5:10 PM > To: Kleinwachter Wolfgang > Cc: Phil Corwin; Paul Rosenzweig; Guru Acharya; CCWG Accountability > Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model > > Hi, Phil, > > I want to align myself 100% with Wolfgang's comments below. I chaired the > NomCom for three successive years, in 2005-2007, and my experience agrees > with Wolfgang's completely. > > I cannot duplicate Wolfgang's extensive discussion of how it works and why > it works, but I don't have to. He has already made the case, and > eloquently. > > Regards, > > George > > > > On Oct 6, 2015, at 3:14 PM, Kleinwächter, Wolfgang < > wolfgang.kleinwaechter(a)medienkomm.uni-halle.de> wrote: > > > > Hi Phil, > > > > thanks for your understanding. Unfortunately we have been pulled into a > "we vs. they" constellation which is grotesk. > > > > I served five years in the NomCom, one year as its chair. We had endless > discussion how to send the best people for ICANN and the broader ICANN and > Internet community to the Board. The people who made it to the board are - > in my understanding - the best people you can get in a given year. They are > not hand picked by an outside power which wants to manipulate the > community. The NomCom itself is populated by representatives from the > community. All SOs, ACs and the constituencies are represented with voting > members in the NomCom. I trusted the community that they did send the right > people to the NomCom. In my reports to the ICANN Public Forum - when I > chaired the NomCom - I always presented the NomCom as the most democratic > element in the whole ICANN ecosystem. The community itself selects its > representatives (and should have also the right to spill them if they do > not meet the expected standards, here I agree with the proposed > enhancements). No CEO, no ICANN chair, no ICANN Board member can tell the > NomCom whom to select. The same is true for the seven directors > selected/elected by the SOs and ALAC. Do you know how many interviews and > discussions take place before the 15 ALAC members vote in favor of one > director which goes to the Board? Did you see the debate on the GNSO Seat? > > > > This are very democratic bottom up transparent, diversified and open > processes. If you compare this with the population of other for profit or > non-for profit boards in the world, this is unique. Do you know how FIFA > selects its Executive Committee? Do you know how to become a member of the > IOC ExCom? Do you know how Green Peace selects its Board? There are endless > back-door meetings (in closeed circles) which produce bodies which are > indeed - sometimes - not accountable to the broader public and it is > difficult to remove them. > > > > The procedure how to get a seat in the ICANN Board is - as said above - > one of the most impressive achievements we have in the ICANN family. And we > should be proud to have such good mechanisms. Additionally the principle of > rotation is an extra block against misuse and capture of the board > function. The term is just three years for a director. If he did not > deliver what was expected, the ACs, SOs and the NomCom has no duty to > re-elect/select the candidate. The maximum is three terms (nine years). It > was two terms (six years). The extension was made to have a right mix > between continuation and presence of history knowledge and innovative > newcomers. There is also the democratic element of geographical diversity. > BTW, this is one point I miss in the CCWG discussion. How seriously CCWG > members take arguments from participants from Africa, Latin America and > Asia? > > > > I bring this facts not to undermine the proposed community power of > spilling of the board. I was always behind this extra power for the > community to enhance the inner democratic processes. In my eyes there is no > need to create a new burocracy to achieve this aim. It can be done on the > basis of the tested and workable model. Under the circumstances of the > discussion we have today I have my doubt whether we can introduce the same > high standard for representatives in a new legal entity in the short time > we have (Sole Membership Model). We were fighting over many years to errect > barriers aganist caputre in the board. And I am not ready to open now a > backdoor for capture in a new entity which has not yet clear rules of > procedure how voting and other important elements (including > accountability) can be introduced in a way which does not undermine the > functioning, stability, security and prosperity of ICANN. I am in favor of > power sharing. But I am against power shifting. > > > > As you know I am leaving the board and I will repeat my arguments after > Dublin as a member of the commmunity. I hope that we have more or less > finished the discussion at the end of the Dublin Meeting. But there will be > a lot of things that we have to do beyond Dublin. > > > > Wolfgang > > > > > > > > I agree this is slippery and dangerous territory, Wolfgang. And I have > made clear that I do not agree with that POV. > > > > > > > > However, in its October 1st High Level Response to CCWG Counsel's 29 > > September 2015 Slides, Jones Day states: " proponents of the CCWG's > > Proposal minimize or ignore the fact that the shift to the SMM would > > place a significant amount of power in the hands of individuals and > > stakeholders that hold no fiduciary obligations to ICANN or the global > > stakeholder community. These individuals and stakeholders are free to > > act in their personal interest and are not required to make decisions > > based on what is best for ICANN, the ICANN community, and the global > > public interest". (Emphasis added) > > > > > > > > While the Board may credibly state that it has a fiduciary duty to ICANN > and makes decisions beside upon what is best for ICANN (and I am not in any > way implying that the CCWG and ICANN community make decisions based on > anything but what they believe is best for ICANN and its community), it > cannot claim to make decisions based on what is best for the ICANN > community (since its first duty is to the Corporation, and it is quite > evident from the current accountability discussion that its views are at > significant variance from those of the community members comprising the > CCWG) and it has no greater claim to representing the global public > interest than the community from which it is drawn. > > > > > > > > Given that it is ICANN's outside Counsel that has raised this charge, > which has since been echoed in Board member communications, perhaps your > caution to "be careful" should be directed elsewhere. > > > > > > > > Finally, on the matter of the "global public interest", points #2 & 3 of > the CCWG Charter states: > > > > 2. If the Board believes it is not in the global public > interest to implement a recommendation from the Cross Community Working > Group on Enhancing ICANN Accountability and Governance (CCWG > Recommendation), it must initiate a dialogue with the CCWG. A determination > that it is not in the global public interest to implement a CCWG > Recommendation requires a 2/3 majority of the Board. > > > > 3. The Board must provide detailed rationale to accompany the > initiation of dialogue. The Board shall agree with the CCWG the method > (e.g., by teleconference, email or otherwise) by which the dialogue will > occur. The discussions shall be held in good faith and in a timely and > efficient manner, to find a mutually acceptable solution. > > > > > > > > I have previously inquired on this list whether the Board's concerns > regarding the Sole member or Designator models amounted to a formal belief > that they threatened the global public interest, and I do not recall any > statement that they did - much less a formal invoking of the dialogue > process provide for in the Charter. > > > > > > > > If the Board believes that either or both of those models does so it > would seem appropriate to provide the required detailed rationale and start > the dialogue. If it does not, then it seems quite inappropriate and > non-constructive for ICANN Counsel to raise a purported threat to the > global public interest in their memoranda. > > > > > > > > Best, > > > > Philip > > > > > > > > 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 > > > > > > > > > > > > -----Original Message----- > > From: "Kleinwächter, Wolfgang" > > [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de] > > Sent: Tuesday, October 06, 2015 1:25 PM > > To: Phil Corwin; Paul Rosenzweig; Guru Acharya > > Cc: CCWG Accountability > > Subject: AW: [CCWG-ACCT] Message from ICANN Board re Designator Model > > > > > > > > Hi Phil, > > > > > > > > this is slippery territory. If you read Parminders comment that it is > only the UN which is the legitimized representative of the global Internet > community (via the elected governments of the UN member states). As said in > previous comments: There are unintended side-effects of our discussion both > for the microcosm of ICANN as well as for the macrocosm of the broader > Internet world. Be careful! > > > > > > > > Wolfgang > > > > > > > > > > > > > > > > -----Ursprüngliche Nachricht----- > > > > Von: > > accountability-cross-community-bounces(a)icann.org<mailto:accountability > > -cross-community-bounces(a)icann.org> im Auftrag von Phil Corwin > > > > Gesendet: Di 06.10.2015 19:15 > > > > An: Paul Rosenzweig; Guru Acharya > > > > Cc: CCWG Accountability > > > > Betreff: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model > > > > I personally do not buy the argument that the ICANN community is > insufficiently reflective of the global Internet Community, given the very > low barriers to participation as well as the increasing levels of > attendance at ICANN meetings and participation in ICANN activities, with > greater numbers from the developing world as it comes online. > > > > > > > > However, if the community is not reflective of global Internet diversity > then wouldn't the Board members who are drawn from it be equally > non-representative? The logical outcome of this criticism is that the Board > is equally disqualified from being the steward. > > > > > > > > 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 > > > > > > > > From: > > accountability-cross-community-bounces(a)icann.org<mailto:accountability > > -cross-community-bounces(a)icann.org> > > [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of > > Paul Rosenzweig > > > > Sent: Tuesday, October 06, 2015 12:47 PM > > > > To: Guru Acharya > > > > Cc: CCWG Accountability > > > > Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model > > > > > > > > > > > > Exactly. The Board is demonstrably speaking with situational > particularity.. Perhaps it is time we think about selecting different > Board members in the next round of elections.... > > > > > > > > -- > > > > Sent from myMail app for Android > > > > Tuesday, 06 October 2015, 00:40AM -04:00 from Guru Acharya > <gurcharya@gmail..com<mailto:gurcharya@gmail.com<mailto: > gurcharya@gmail.com%3cmailto:gurcharya@gmail.com>>>: > > > > > > > > > > > > I strongly agree with Jordan. > > > > > > > > I personally find that attitude of the board to be very 'convenient'. > > > > > > > > According to them, ICANN is multistakeholder enough to become the > steward of IANA, but the community is not multistakeholder enough to become > a member of ICANN. Effectively, we are making ICANN the corporation the > steward of IANA and not ICANN the community. > > > > > > > > I also find it an extremely convenient argument that 'while entering > uncharted territories to make ICANN the steward is very safe; at the same > entering uncharted territories to make ICANN a membership organisation is > untested and very very unsafe'. > > > > > > > > In the CWG (Stewardship), the board consistently argued that > > > > 1) the CCWG will solve all accountability issues and therefore ICANN > should be made the steward. > > > > 2) the ICANN structures are truly multistakeholder and therefore ICANN > > should be made the steward > > > > 3) entering unchartered territories by making ICANN the steward is > > very very safe > > > > 4) the NTIA may not accept the Contract Co model > > > > > > > > In complete contrast, in the CCWG (Accountability), the board is > > arguing that > > > > 1) the CCWG should postpone major accountability measures to after the > > transition > > > > 2) the ICANN structures are currently not multistakeholder enough to > > become the members of ICANN > > > > 3) entering unchartered territories by making ICANN a membership > organisation is very very unsafe. > > > > 4) the NTIA may not accept the membership model > > > > > > > > I do not find the promises for future change to be trustworthy. I am > strongly against pushing something so important and basic to WS2. > > > > > > > > On Tue, Oct 6, 2015 at 8:26 AM, Aikman-Scalese, Anne <AAikman(a)lrrlaw.com > <//e-aj.my.com/compose/?mailto=mailto%3aAAikman(a)lrrlaw.com<mailto: > AAikman(a)lrrlaw.com%3c// > e-aj.my.com/compose/?mailto=mailto%3aAAikman@lrrlaw.com>>> wrote: > > > > > > > > @ Jordan - well stated. Postponing truly effective accountability > measures developed using the Multistakeholder process in favor of "a > review of structure" as suggested strikes me as another recipe for a > years-long process the elements of which would take months to agree on in > and of themselves - very ineffective. > > > > > > > > Anne > > > > > > > > > > > > > > > > [https://af.mail.my.com/cgi-bin/readmsg?id=14441065090000080418;0;0;1& > > mode=attachment&bs=16497&bl=3767&ct=image%2fgif&cn=image001.gif&cte=ba > > se64] > > > > > > > > > > > > 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<//e-aj.my.com/compose/?mailto=mailto%3aAAikman@lrrl > > aw.com<mailto:AAikman@lrrlaw.com%3c//e-aj.my.com/compose/?mailto=mailt > > o%3aAAikman(a)lrrlaw.com>> | > > www.LRRLaw.com<http://www.lrrlaw.com/<http://www.LRRLaw.com%3chttp:/ww > > w.lrrlaw.com/>> > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > From: > > accountability-cross-community-bounces(a)icann.org<//e-aj.my.com/compose > > /?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces(a)icann.o > > rg<mailto:accountability-cross-community-bounces@icann.org%3c//e-aj.my > > .com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbou > > nces@icann..org>> > > [mailto:accountability-cross-community-bounces@icann.org<//e-aj.my.com > > /compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces > > @icann.org><mailto:accountability-cross-community-bounces@icann.org%3c > > //e-aj..my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu > > nity%2dbounces(a)icann.org%3e>] On Behalf Of Jordan Carter > > > > Sent: Monday, October 05, 2015 7:44 PM > > > > To: Steve Crocker > > > > Cc: Accountability Cross Community > > > > Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model > > > > > > > > > > > > > > > > Steve, all > > > > > > > > > > > > > > > > In finalising the CCWG's proposal, the ICANN board is a stakeholder - an > important one. > > > > > > > > > > > > > > > > It has a later role as a decision-maker, according to criteria that have > already been established by Board resolution. > > > > > > > > > > > > > > > > A careful multi-stakeholder process over almost a year has analysed the > community's requirements and come up with a model that can do it - based > around membership. > > > > > > > > > > > > > > > > The Board has abused its role as a decision-maker in this process. In > effect, it has sought to replace the open, public, deliberative proposal > development process with its own definition of what the community requires, > and its own solution that can deliver its evaluation of those requirements. > > > > > > > > > > > > > > > > In doing so, it has profoundly challenged the legitimacy of the > multi-stakeholder model of decision-making that ICANN and its Board claim > to uphold. > > > > > > > > > > > > > > > > Worse, as a matter of process, the Board has attempted to use its > decisional role at the end of the Accountability to move the trajectory of

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Notes-Recordings-Transcript links for WP4 Meeting | 6 October
by Brenda Brewer Oct. 7, 2015

Oct. 7, 2015

Hello all, The notes, recordings and transcripts for the WP-4 meeting on 6 October will be available here: https://community.icann.org/x/kKBYAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. LS -Agenda is to work through the public comments . Documents have been produced by Tatiana Tropina and Niels ten Oever. Ellen Blackler (EB) - excellent work on the document. Areas of divergence 2. On 1 clarify what 2 out of 23 means. Divergence #3 limiting text divergent. NO - even with this text the commenter felt this left ICANN open to a significant risk. GS - are only doing specific comments or will we review the entire document? LS - need comments GS GS - issues with number breakdowns - BT will fix. DM - Areas for Refinement - Concern with proposed new wording in item 2. This wording would be very hard to accept ICANN would PROTECT human rights. Ok to RESPECT and not PROTECT. Robin Gross [GNSO - NCSG]: According to Article 29, ICANN doesn't respect privacy rights (EU). LS - this should probably be included in the document (new point) GS - we should stick to comments provided. TT - create additional document for an assessment of the comments. The current document is mostly a snapshot. LS - We should prepare 1 document with two chapters, 1 which is a summary and 1 which is an analysis and participants should complete their contribution to this document in the next 24 hours so it can be discussed at the next meeting of WP4 LS - other tract which is agreeing on the wording to be added to the Bylaws. The proposed text for discussion is: Within its mission and in it operations, ICANN will be committed to respect internationally recognized human rights laws and standards. DM - Why standards? NO - not my addition. Niels ten Oever: The BC believes that the Universal Declaration of Human Rights is comprehensive statement of human rights that is appropriate for ICANN14. The BC does not support having ICANN selectively commit to certain human rights while excluding others. Nor does the BC support having ICANN commit to the United Nations Guiding Principles on Business and Human Rights, which was proposed by some sub-group members15. ICANN is not a business and would be a poor fit with the limited view of human rights originally developed by the UN for Businesses in the resource extraction industry. MK - WSIS wrestled with this which was a very hard topic - the only agreement was UDHR. this would be sufficient and would probably generate consensus in our context. TT - no cherry picking so need general language. finally opposed to mentionning UDHR but could live with it if a minority view. LS there was an agreement not to mention any specific instruments. GS - does not agree we should stay away from mentionning existing documents. 5 comments recommended UDHR. General discussion on strategy forward Discussion of poll for WP4 - Should there be a reference to specific document in the Bylaws text (human rights context) - (yes or no)? - If a document is included should it be the UDHR (yes or no)? - Another Document or documents? (list) LS - Going forward - complete the document, reply to the Poll, continue the discussion of the document on the next call as well as the results of the poll.

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RV: FW: Regarding GAC participation
by Perez Galindo, Rafael Oct. 7, 2015

Oct. 7, 2015

Thank you Rosemary for this first answer to the alter-ego question. I very much look forward to your detailed analysis on ability, legal implications and liabilities of governments as (possible) voting members in the community mechanism under CA jurisdiction, in all the models under discussion (SMM, Single designator and MEM). Best Rafael Von: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Rosemary E. Fei Gesendet: Donnerstag, 1. Oktober 2015 02:25 An: Accountability Cross Community (accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>) <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] FW: Regarding GAC participation Dear CCWG: We responded to the question in red in the email below, which someone also asked in the August 25 webinar. We added the response when we were asked to review and edit the webinar Q&A. I'm not sure when this got posted, but I think it was on the "last modified" date of September 21. https://community.icann.org/pages/viewpage.action?pageId=54695403 See the CCWG Legal Counsel's Response to Question 48, reproduced here: CCWG Legal Counsel's Response: If the sole member is formed as a California unincorporated association (since it would need to be a legal person in order to be a statutory member of ICANN), participants in the Sole Member unincorporated association would not liable for the debts, obligations, or liabilities of the association solely by reason of being participants, as stated in California Corporations Code Section 18605. Corporations Code Section 18630 simply points out the legal principle of common-law alter-ego liability, applicable not only to unincorporated associations but also to corporations and other limited-liability entities such as limited liability companies. For example, under this principle a corporate shareholder could be held liable for the debts of a corporation that is operated so closely by or in connection with the shareholder that it has ceased to have a separate existence for practical purposes (i.e., the corporation has been operated as the shareholder's mere "alter ego"). Typically, however, a finding of alter-ego liability requires a number of egregious facts, including a commingling of funds between the shareholder and the corporation and a failure to observe corporate formalities. Courts may also require a demonstration of outright fraud. If the CMSM is administered according to the governance provisions to be included in the ICANN Bylaws, we do not believe there would be a basis for a court to assert alter-ego liability against its participants. While this does not respond to all of the questions posed in the email below, I hope that at least this one answer is helpful. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ Adler & 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. From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Perez Galindo, Rafael Sent: Wednesday, September 30, 2015 2:26 AM To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Regarding GAC participation Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: "Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN

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Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal
by Rosemary E. Fei Oct. 7, 2015

Oct. 7, 2015

Dear All, During the meetings in LA, we discovered that the memo “Comparison of Board Proposal to CCWG 2nd Draft Proposal” contained some errors; a corrected version was transmitted to the co-chairs on September 26, 2015. Please find that corrected version attached. It should to replace the memo dated September 22 that was forwarded earlier today as an attachment to Holly’s email below. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com www.adlercolvin.com _____________________________ Adler & 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. From: Holly Gregory Sent: Tuesday, October 06, 2015 2:46 AM To: mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>; thomas(a)rickert.net<mailto:thomas@rickert.net>; leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx> Cc: Accountability Cross Community (accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>); Rosemary E. Fei; Sidley ICANN CCWG; ICANN-Adler; ACCT-Staff; Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org> Subject: Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal Dear Co-Chairs, On the CCWG-ACCT call earlier this morning, a member of the ICANN Board requested that we point out where our discussion of enforceability relating to the MEM can be found. We have attached it above. We suggest that the Memo above comparing the Board Proposal to the CCWG 2nd Draft Proposal provides the most concise discussion. We have also included the Slides that compare the Sole Member, Sole Designator and Board Proposal on issues of community powers and enforceability. You may wish to send these materials to the Board. We leave that to you. We also are awaiting comments from Jones Day and ICANN Legal on a comparison of the current IRP, IRP as proposed in the CCWG 2nd Draft Proposal and the IRP and MEM as described in the Board’s Proposal. Once we receive their comments we will review and revise and provide that comparison to you. Please note that as emphasized on the call this morning and in the Memo and Slides above, the issues of legal structure, scope of community powers and the degree of enforceability are inter-related. As you know, these complex issues have been a dominant focus in CCWG’s deliberations to date, and as a result there is a wealth of other relevant material that has been generated about various options. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> ---------- Forwarded message ---------- From: Gregory, Holly <holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com>> Date: 23 September 2015 at 14:04 Subject: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal To: "thomas(a)rickert.net<mailto:thomas@rickert.net>" <thomas(a)rickert.net<mailto:thomas@rickert.net>>, "mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>" <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>>, "ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>>, Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>, Grace Abuhamad <grace.abuhamad(a)icann.org<mailto:grace.abuhamad@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com>> Dear Co-Chairs, Members and Participants of CCWG, Attached please find three documents to assist in preparation for our meeting in L.A.: • A memo from Sidley and Adler with our high level observations regarding comparison between the Board Proposal and the CCWG Proposal. • A Summary Comparison of Key Characteristics of CMSM Model and Board Proposal – this or something along these lines will be expanded out in the next several days to include the Sole Designator model as requested on today’s call • Comparison of CCWG 2nd Draft Proposal (Community Mechanism as Sole Member) and ICANN Board Proposal (Comparison) We look forward to seeing you in L.A., Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5(a)icann.org<mailto:Ccwg-accountability5@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability5<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.internetnz.nz&d=BQM…> A better world through a better Internet

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Personal thoughts on sole member
by Bruce Tonkin Oct. 6, 2015

Oct. 6, 2015

Hello All, The following is NOT a Board view. My personal thoughts on sole member is that I prefer a broader membership structure to a sole membership structure. For me - a sole member concentrates all the responsibilities of membership into a single legal entity. I much prefer more distributed membership structures that are more likely to represent the broader Internet community. I am not aware of any similar Internet based body that operates under this model. I have been on the Board of several non-profit organizations over the past 20 years in a range of areas from sport to research to business, and I have never personally had any experience in this model. I have also done several company director courses and I have never had this model come up in presentations or discussions. The sole member model also doesn't seem to particularly fit the current SOs and ACs that often have different interests and areas of focus For example SSAC and RRSAC have quite narrow mandates to look at particular technical issues. They do not generally get involved in ICANN strategic plans, operating plans, budgets, and naming policies. I think it is far better that SOs and ACs participate in the ICANN model as themselves. I think we can empower each of these groups in our bylaws in appropriate ways. If the CCWG really wants to go down the single member model, then I would prefer a much more formal structure. - make the single member an incorporated entity - set the articles of incorporation up to ensure that the single member has a fiduciary responsibility to the Internet community as a whole. I.e. align its fiduciary responsibility to ICANN's fiduciary responsibility - have a board of the single member with the same structure as ICANN - with SOs and ALAC appointing directors, set up a nominating committee (or use the one we have) to select 8 directors, and have liaisons from GAC, SSAC, RSSAC and IETF. - include in its bylaws its mission (to be a member of ICANN), and processes it will use to reach decisions and consult with the community If this is sounding like what we already have - then that is not surprising. I feel that it is certainly legally possible to create a sole member - but it is practically highly unusual, and also seems completely unnecessary in that we already have a Board that does much the same thing. The Board listens to all parts of the community before making major decisions, and acts for the benefit of the Internet community as a whole. So vmy preference order is: - leverage the governance model we have and refine to have additional powers for the SOs and ACs in the bylaws, have a binding IRP mechanism if any SO or AC feels that board is not following the bylaws, and set up a mechanism to ensure that IRP decision is legally enforceable. This is broadly the current Board proposal. - move to a full membership model with appropriate diversification and participation of members that include infrastructure operators and users, with appropriate culture and geographical diversity - use a sole member model - with a fully incorporated member and clear fiduciary responsibilities. Set up the board of the sole member with an equivalent level of governance as we have with the Board of ICANN. Regards, Bruce Tonkin

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Notes-Recordings-Transcript links for WP1 Meeting | 6 October
by Brenda Brewer Oct. 6, 2015

Oct. 6, 2015

Hello all, The notes, recordings and transcripts for the WP-1 meeting on 6 October will be available here: https://community.icann.org/x/H55YAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items * ACTION ITEM - Greg Shatan to add context to suggestions for CCWG consideration. * ACTION ITEM - Mike Chartier to issue second draft for discussion on next call. Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Fundamental Bylaws 17 comments submitted. Strong support/clear consensus in having ability to approve fundamental Bylaws. General support for threshold. Areas needing refinements: 1) Must not preclude from being subject to US laws both state and federal; 2) Sole member may not be right body to launch Separation Working Group and ICG should refine; 3) Easily understood definition of process needed; 4) Deadlocks caused between Board and community on changing fundamental Bylaws may require stress test; 5) Reference to IANA functions review and special IANA Functions review may need clarification; 6) Require public comment period to be observed prior to bylaw change. Areas of divergence:1) preference not to utilize SMM; 2) 4 comments noted that article XVII should be Fundamental Bylaw. Options for CCWG consideration: 1) Consider further clarification in communications of process and methods; 2) Explicit reference to SIFR; 3) Consider comments of ICANN Board while discussing SMCM; 4) ST-WP consider deadlock stress test; 5) Further clarification should be sought to assess if current status of SCWG is sufficient; 6) ALAC proposed clarification. Feedback: - Bring over ST. AoC did extensive analysis on article 18. Suggestion to coordinate. - Explanations need to be clarified. - Model and decision-making process will shape how we need to change community powers. --> Adding a note that this would be impacted by model may be useful. Standard Bylaws 8 comments submitted. All comments were supportive - no comments were opposed. Areas needing refinement: 1) Consider deadlock stress test; 2) Community threshold to demonstrate objection to a Bylaws change needs to be agreed upon using current SO/AC structure as opposed to voting mechanism -> i.e. reliance on existing structure. Areas of divergence: 1) Preference for using current SO/AC structure as opposed to voting mechanism; 2) Further explanations of mechanisms needed. Options for CCWG consideration: 1) Clarification around triggers, thresholds and dispute resolution paths; 2) Revising mechanism to rely on consensus among SO/AC rather than voting; 3) Consider further explaining how conflict or deadlock would be resolved. Feedback: - Do you think that these two powers may be impacted by the model yet to be agreed or they are independent of model? --> Yes - potentially. - Confused about comment regarding preference for use of existing SO/AC structure. What does existing structure mean? --> We could benefit from Board's specific comments with respect to this concern. - Model will affect enforceability of powers. Choice of decision-making process will affect how power is exercised. We need to keep this in mind. - CCWG is an evolving model. - The issues focus on 1) details of how many votes; 2) Membership and designators model have quality that they replicate what exists already. It creates additional structure that has uncertain or unbounded side effects. You can achieve power using SO/AC structure and putting it in Bylaws. - Do not understand Board's concerns about designators model. Is Board removal the power they object to with respect to designators model? - Was the Board considering thresholds? How would voices of SO/ACs be counted? ---> We do not have detailed suggestion about exact formula. Thresholds should be pretty high. It is not different from CCWG threshold related discussions. --> We do have data on participation Board Recall P 4 - removed items 4 and 5 per decision on last call. Retained suggestions that we need more clarity on standards. We should borrow from existing criteria. Idea is to replicate same level of talent and scope. Consequences for failure: do we consider that an implementation detail? We should decide whether we do want to bring options back: 1) standards for selection of interim Board; 2) Consequences for failure of community to meet process requirement; 3) Make time periods less right; 4) eliminate potential for failure to agree on interim directors; 5) Simplify process; 6) Establish standards in WS2; 7) Higher threshold for Board recall. Feedback - Do the pre-service letters need to go into the individual director removal paper? --> Yes they are intending to be used to remove all Directors. - We need to add context to the suggestions. - Simplified process may be a self-contained refinement. - We need deadline for appointment of Board. - If Board is recalled it is a nuclear event. Threshold should be taken back to CCWG. - What do you do to count objections. Most of thresholds are equal weight. - Recalling entire Board is high threshold by community as a whole rather than SO/ACs. Is there a back channel by which Board can be removed by lower threshold? There is gap that needs to be closed. - We should have definition of majority. Quorum of voting is needed. We should have same threshold for quorum. ACTION ITEM - Greg Shatan to add context to suggestions for CCWG consideration. Individual Board Director Removal 32 comments submitted. Consensus on power. 6 are concerned that nominating SO/AC would be sole remover. 2 proposed standards of behavior be adopted. 1 suggested pre-service letters that would document cause for removal. 1 had concern with timing. 1 pointed that removal of individual members could have equivalent to removal of entire Board. Options: 1) increase threshold necessary for removal of SO/AC directors; 2) Document either standard of behavior or cause in pre-service letters; 3) Limit number and stagger time periods for individual Board removal to mitigate "batching". Feedback: - 1) Understand history and reflect it in decision; 2) There is a standard of behavior in Bylaws; 3) On p. 1, there is suggestion to take item 2b - there should be rationale publicly given why this process is beginning as opposed to holding it until community forum is constituted. --> It is not that directors have a bias - they understand community they are coming from. - Think about distinction between cause and rationale. Rationale and opportunities to discuss should be given. It should not be confused with narrowly defined causes that could limit our abilities. - In LA concerns were expressed. Bylaws are clear - When member is appointed to Board it has to act in interest of all stakeholders. Board mindset is looking at public interest. It would be a dysfunctional Board if captured. It needs to serve entire community. While support power, I am against individual director following SO/AC orders. For Board to be functioning there has to be experience on Board. Combination of Board members from outside and Board members with SO/AC experience creates balance. - Removing Board member by appointing body is for benefit of appointing body, not multistakeholders. NomCom will have community remove them. Why don't we have this for SO/ACs as well. Rationale is a minimum. - It is unconstitutional. Board members should act in collegial view of community. - SO/ACs should be able to remove their directors. ACTION ITEM - Mike Chartier to issue second draft for discussion on next call. AoC 5 areas needing clarification. Text in Italics is conclusion of previous call. Needing clarification: 1) CCWG proposed bringing AoC commitments into core values; 2) Clarification on selection/composition of review teams; 3) Clarification requested on CCWG para 507; 4) Action on recommendations; 5) New transparency requirements; 6) AoC review team transparency. Divergence: 1) Sunset/amendment/creation of other reviews; 2) WHOIS/Directory Services Review Text; 3) Commitment to implement review recommendations before opening next round of new gTLDs; 4) Do initial ATRT review no later than three years after termination of AoC. Feedback: - We may want wiggle room on implementation timelines. Some Review Team may want it to be longer term. - Actual process of implementation takes place prior to Board making decision. - What is unprecedented access? --> It is not full access. Refer to p. 75. - Wording should be "recommend" not power. Next call We will discuss: Community forum; CMSM; Second readings of budget, Bylaws, individual Board director removal. Documents Presented * <https://community.icann.org/download/attachments/56139295/PC2%20-%20Section… laws.docx?version=1&modificationDate=1444159424000&api=v2> PC2 - Section 4 -Fundamental Bylaws.docx | <https://community.icann.org/download/attachments/56139295/PC2%20-%20Section… laws.pdf?version=1&modificationDate=1444159444000&api=v2> PC2 - Section 4 -Fundamental Bylaws.pdf * <https://community.icann.org/download/attachments/56139295/PC2%20-%207.2%20S… rsion=1&modificationDate=1444159522000&api=v2> PC2 - 7.2 Standard Bylaws.docx | <https://community.icann.org/download/attachments/56139295/PC2%20-%207.2%20S… sion=1&modificationDate=1444159548000&api=v2> PC2 - 7.2 Standard Bylaws.pdf * <https://community.icann.org/download/attachments/56139295/v2%20Power%20-%20… 20-%20analysis%20of%20PC2.docx?version=1&modificationDate=1444160602000&api=v2> v2 Power - Recall Entire Board - analysis of PC2.docx | <https://community.icann.org/download/attachments/56139295/v2%20Power%20-%20… 20-%20analysis%20of%20PC2.pdf?version=1&modificationDate=1444160617000&api=v2> v2 Power - Recall Entire Board - analysis of PC2.pdf * <https://community.icann.org/download/attachments/56139295/AoC%20-%20analysi… ersion=1&modificationDate=1444165639785&api=v2> AoC - analysis of PC2 v3.docx | <https://community.icann.org/download/attachments/56139295/AoC%20-%20analysi… rsion=1&modificationDate=1444165659635&api=v2> AoC - analysis of PC2 v3.pdf

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Re: [CCWG-ACCT] Message from ICANN Board re Designator Model
by Phil Corwin Oct. 6, 2015

Oct. 6, 2015

Asha: Thank you for your perspective as a Board member who was ��a complete ICANN outsider�� prior to selection. With respect, when I look at the members of the current Board I do not discern such a significant difference from the makeup of the ICANN community that the former can be presumed to always act reliably on behalf of the global Internet community while the latter cannot be trusted to do so. And if the belief is that the community is not sufficiently diverse to be trusted with certain accountability enforcement mechanisms, then how can it be trusted to make DNS policy through the bottom-up, multistakeholder process that this whole transition-plus-accountability exercise is designed to protect? As a just-reelected member of the GNSO Council, I believe that we and the community we represent are quite diverse and trustworthy, and I know that we strive to carefully devise policies that benefit both the ICANN and the global community. Further, while the last thing I want to do is test either group against some ethnic/gender/geographic scorecard, both the Board and the community might well be adjudged to be insufficiently reflective of the global Internet community, depending how one is measuring that. Yet in nearly twenty years of operation I know of no charge that ICANN has acted against global interests. As for language differences, under Fadi��s leadership great strides have been made in translation not just of discussions but of documents. On the matter of cultural differences, ICANN is a U.S. corporation designed by U.S. lawyers, so I��m not sure whether or how that should be addressed -- but I also don��t see it as relevant to the question of who can be trusted to carry out the global public interest. As I have previously urged on this list, I do not think it is productive to raise charges such as ��instability��, ��capture��, and ��against the global public interest�� without citing specific examples of what bad act might result. So, rather than charging that under some proposed model ICANN processes might somehow be captured by a subset of SOs and ACs who might then act against the global public interest, can we please require that those raising such concerns cite specific examples of what bad acts might result �C so the threat can be evaluated and stress tested? Without such specificity, this discussion begins to seem like children seeing ghosts and goblins in dark shadows, which disappear instantly when the lights are switched on. Sincerely, Philip 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 From: Asha Hemrajani [mailto:asha.hemrajani@icann.org] Sent: Tuesday, October 06, 2015 2:29 PM To: Phil Corwin; Paul Rosenzweig; Guru Acharya Cc: CCWG Accountability Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model Hello Phil I would beg to differ that the ICANN community is currently sufficiently reflective of the global Internet community. If anything, it is on the contrary. The barriers to participation can be quite high �C language is one of them as well as the ��speak up�� culture so dominant at ICANN meetings which is certainly not the norm in many Asian cultures/communities. Of course there have been tremendous efforts made to increase diversity in the ICANN community via outreach activities and programmes, but we still have a long way to go before we can say that the ICANN community is reflective of the global Internet community. At the recent ICANN meeting in Singapore, there was a (very sadly) low number of participants from the ASEAN region. The ICANN community has a long way to before we can truly say we are geographically diverse (or gender balanced for that matter!) I would also beg to differ on your point that Board members are equally non-representative. The NomCom selects 8 directors that are oftentimes not from the usual ICANN community �C I am an example, a complete ICANN outsider and from Asia. Asha Hemrajani �� From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, 7 October 2015 1:15 am To: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, Guru Acharya <gurcharya(a)gmail.com<mailto:gurcharya@gmail.com>> Cc: CCWG Accountability <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model I personally do not buy the argument that the ICANN community is insufficiently reflective of the global Internet Community, given the very low barriers to participation as well as the increasing levels of attendance at ICANN meetings and participation in ICANN activities, with greater numbers from the developing world as it comes online. However, if the community is not reflective of global Internet diversity then wouldn��t the Board members who are drawn from it be equally non-representative? The logical outcome of this criticism is that the Board is equally disqualified from being the steward. 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 From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Tuesday, October 06, 2015 12:47 PM To: Guru Acharya Cc: CCWG Accountability Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model Exactly. The Board is demonstrably speaking with situational particularity. Perhaps it is time we think about selecting different Board members in the next round of elections.... -- Sent from myMail app for Android Tuesday, 06 October 2015, 00:40AM -04:00 from Guru Acharya <gurcharya(a)gmail.com<mailto:gurcharya@gmail.com>>: I strongly agree with Jordan. I personally find that attitude of the board to be very 'convenient'. According to them, ICANN is multistakeholder enough to become the steward of IANA, but the community is not multistakeholder enough to become a member of ICANN. Effectively, we are making ICANN the corporation the steward of IANA and not ICANN the community. I also find it an extremely convenient argument that 'while entering uncharted territories to make ICANN the steward is very safe; at the same entering uncharted territories to make ICANN a membership organisation is untested and very very unsafe'. In the CWG (Stewardship), the board consistently argued that 1) the CCWG will solve all accountability issues and therefore ICANN should be made the steward. 2) the ICANN structures are truly multistakeholder and therefore ICANN should be made the steward 3) entering unchartered territories by making ICANN the steward is very very safe 4) the NTIA may not accept the Contract Co model In complete contrast, in the CCWG (Accountability), the board is arguing that 1) the CCWG should postpone major accountability measures to after the transition 2) the ICANN structures are currently not multistakeholder enough to become the members of ICANN 3) entering unchartered territories by making ICANN a membership organisation is very very unsafe. 4) the NTIA may not accept the membership model I do not find the promises for future change to be trustworthy. I am strongly against pushing something so important and basic to WS2. On Tue, Oct 6, 2015 at 8:26 AM, Aikman-Scalese, Anne <AAikman(a)lrrlaw.com<//e-aj.my.com/compose/?mailto=mailto%3aAAikman(a)lrrlaw.com>> wrote: @ Jordan �C well stated. Postponing truly effective accountability measures developed using the Multistakeholder process in favor of ��a review of structure�� as suggested strikes me as another recipe for a years-long process the elements of which would take months to agree on in and of themselves �C very ineffective. Anne [https://af.mail.my.com/cgi-bin/readmsg?id=14441065090000080418;0;0;1&mode=a…] 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<//e-aj.my.com/compose/?mailto=mailto%3aAAikman(a)lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces(a)icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces(a)icann.org> [mailto:accountability-cross-community-bounces@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces(a)icann.org>] On Behalf Of Jordan Carter Sent: Monday, October 05, 2015 7:44 PM To: Steve Crocker Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model Steve, all In finalising the CCWG's proposal, the ICANN board is a stakeholder - an important one. It has a later role as a decision-maker, according to criteria that have already been established by Board resolution. A careful multi-stakeholder process over almost a year has analysed the community's requirements and come up with a model that can do it - based around membership. The Board has abused its role as a decision-maker in this process. In effect, it has sought to replace the open, public, deliberative proposal development process with its own definition of what the community requires, and its own solution that can deliver its evaluation of those requirements. In doing so, it has profoundly challenged the legitimacy of the multi-stakeholder model of decision-making that ICANN and its Board claim to uphold. Worse, as a matter of process, the Board has attempted to use its decisional role at the end of the Accountability to move the trajectory of debate away from what the community's requirements, fairly analysed dictate -- trying to force the group to "jump the tracks" and into a solution that is unlikely to be able to deliver on those requirements. It's an ugly display of force in what should be a rational and requirements-based conversation. I sincerely regret the Board's choice as a group to take that approach. The effect is to give fodder to all of those people, countries and groups who have long argued that the entire notion of multi-stakeholder Internet policymaking is a charade, behind which decisions are made simply and alone by "the people who matter". In terms of the CCWG's work, this email combined with your statement in Los Angeles reduce the chances of any consensus being able to emerge between what the Board has asked for and what the CCWG has developed. It leaves me very sad that the groups here (Board and CCWG) have arrived at this position. There is an apparent lack of listening and comprehension; few displays of empathy or willingness to see things from another point of view; and a consequent inability to really talk through and resolve the conflicting perspectives and aims here. I hoped the Board might make some overtures in that direction. I know I and other CCWG members have been trying to do. To get this sort of response indicates that that attempt serves no further purpose. What are others' views about how we proceed from here? I confess myself mystified. Look forward to speaking with you all in a few hours. Cheers Jordan On 6 October 2015 at 15:21, Steve Crocker <steve.crocker(a)icann.org<//e-aj.my.com/compose/?mailto=mailto%3asteve.crocker(a)icann.org>> wrote: CCWG, We appreciate the continued work that the CCWG is doing to consider the public comments received on its second draft report. Following the Los Angeles F2F we have heard suggestions that a Designator model relying on California statutes may be a replacement for the Sole Member model that was in the second draft report. To be clear, the concerns that the Board raised on the Sole Member model still apply to a Designator model. The Designator model still introduces a new legal structure with powers that are intrinsically beyond the structure we have been using. We understand that many believe it is possible to constrain these powers in order to provide established protections, accountability and thresholds: This is unproven territory and will require more detail and time to understand and test the impact on our bedrock multistakeholder balance. Further, it is unclear that this would represent the full multistakeholder community because we do not know yet which SO/ACs will join now or later. Moreover, the same community accountability issues present in the Sole Member are present in the Designator model. Steve del Bianco��s constructive suggestion over the weekend that the Board could commit to a future governance structure review triggered by key factors seems like a good path forward. This can be enshrined in a new fundamental bylaw that would require the holding of a future governance structure review if SOs and ACs agree to kick off that review. We are all in complete agreement on the objective of enforcement of the five community powers, with new/stronger mechanisms for board removal if/when necessary. Let��s focus on finalizing the details on these consensus elements to enable implementation and a successful transition. Steve Crocker for the ICANN Board of Directors _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity(a)icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz<//e-aj.my.com/compose/?mailto=mailto%3ajordan(a)internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet ________________________________ 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<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity(a)icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org</compose?To=Accountability%2dCross%2dCommunity(a)icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4419/10680 - Release Date: 09/22/15 Internal Virus Database is out of date. _______________________________________________ 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4419/10680 - Release Date: 09/22/15 Internal Virus Database is out of date.

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Accountability - the "Future Governance Review"
by Aikman-Scalese, Anne Oct. 6, 2015

Oct. 6, 2015

After last night’s call, there appears to be a push toward committing this Group’s resources to evaluation of the “Future Governance Review” approach as a possible “way forward” in the face of the Board’s apparent veto of the CCWG proposal. The Board has expressed concern that the SOs and ACs are “not sufficiently representative” of stakeholders and therefore not sufficiently accountable to assume Sole Member or Designator powers. The irony in this situation is that to my knowledge, this “Future Governance Review” notion has not been reviewed with the CSG or any other SOs and ACs. I confess I do not understand the underlying assumption of the “Future Governance Review” proposal – which is that the Bylaws powers listed (and assumed by the CWG Stewardship Final Report to be guaranteed) will be enforceable outside the Sole Member context. I believe we have already been advised by counsel that enforceability is in question outside that context. We have received this advice in many forms and on many occasions and it has been consistent. It does not seem to me that the proposal re Future Governance Review changes the advice already received regarding enforceability. Moving beyond that VERY FUNDAMENTAL QUESTION underlying the “Future Governance Review” approach. if this hybrid approach has been reviewed with our constituencies and stakeholders, I am personally not aware of that. As a matter of procedure and in the name of Accountability and being truly representative of the groups we allegedly represent, the CCWG should not proceed in this direction and commit resources, legal and otherwise, to the study of this approach, without at least running this approach by their respective SOs and ACs. Given the current rejection by the Board toward the Sole Member model, I am not at all optimistic that “Future Governance Review” would have any different result than the current stalemate. The issue of lack of SO/AC accountability is in my view a “red herring” . I agree with those who have recounted the fact that in all prior communications regarding the transition (including in the CWG Stewardship deliberations), the Board and its members have taken the position that the Multistakeholder model is a wonderful thing that is working well and that the Board would send the CCWG proposal directly to NTIA as finalized after it had provided its input as one stakeholder.) Now, all of a sudden when concrete Community Powers are proposed via the Sole Member structure, the Board is very concerned about SO and AC Accountability. If “Future Governance Review” is seen by “thought leaders” in the CCWG and by the Board and our Co-Chairs as a “way forward”, wouldn’t it be a good idea for members of the CCWG to check with their SOs and ACs on this? In the name of Accountability and being Representative of our constituencies and stakeholders, Anne [cid:image001.gif@01D10010.B3966630] 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/> ________________________________ 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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FW: certification of legal issues requested
by Gregory, Holly Oct. 6, 2015

Oct. 6, 2015

To: mathieu.weill(a)afnic.fr; thomas(a)rickert.net; leonfelipe(a)sanchez.mx; ccwg-accountability5(a)icann.org Cc: Rosemary E. Fei (rfei(a)adlercolvin.com) Sidley ICANN CCWG; ICANN(a)adlercolvin.com Subject: RE: certification of legal issues requested Dear Co-Chairs, Consider whether to certify to us the question of whether under ICANN's current structure SOs and ACs have legal rights to select directors in line with designator rights under the California statute. Holly and Rosemary. Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: Gregory, Holly Sent: Monday, October 05, 2015 09:38:10 PM To: mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>; thomas(a)rickert.net<mailto:thomas@rickert.net>; leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>; ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org> Cc: Rosemary E. Fei (rfei(a)adlercolvin.com<mailto:rfei@adlercolvin.com>); Sidley ICANN CCWG; ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com> Subject: certification of legal issues requested Dear Co-Chairs Based on much discussion and a fair degree of confusion evident in the email exchange, we request that you consider certifying the following question to us • What are a director’s fiduciary duties to a California nonprofit public benefit corporation? What is the relationship between these duties and the mission of the corporation? In addition, we note that Sam Eisner recently provided a note on the email regarding the availability of default judgments should the Board refuse to participate in an IRP. We have a different view and would like you to certify that question to us. We note as a general matter that we are not able to provide answers to legal questions unless certified but ICANN Legal of course has no such limits. It does put us in a difficult position when we don’t agree, since some may take our silence as an indication of agreement. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

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