October 2015 - Accountability-Cross-Community

Notes-Recordings-Transcript links for WP2 Meeting | 5 October
by Brenda Brewer Oct. 5, 2015

Oct. 5, 2015

Hello all, The notes, recordings and transcripts for the WP-2 meeting on 5 October will be available here: https://community.icann.org/x/555YAw 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. BBurr - Going over agenda slide. Funding costs, accessibility and independence and interlinked at some level. Need to be certain that the dependence issue is on solid ground. Is costing sustainable? Is IRP really accessible. The Board comment (MEM and IRP are essentially the same for us) ICANN bare the cost the community requests and that traditional request from the commercial sector continued to be carried by both parties with the panel having discretion to allocate costs based on the merits of the case. These issues should be summarized in a document for Dublin. Re: Reconciling conflicting decisions of expert panels - ICANN suggesting that the policies should address this instead of IRP. This is good but should the IRP be the backstop in case some issues are not covered in the policy? IRP could also covered fundamentally irrational decisions as per one commenter - this is a substantive comment which should be considered. Other comments included IRP being applicable to the SMM for community accountability. Some suggesting an abuse of discretions standard vs de novo which was supported by the ICANN Board. A number of comments on Standing including a number of govts. A few comments from IPC were interesting. Also permissive filing vs abuse of the process. Issues around preventing abuse. Board suggesting rolling back to 2013 needs to be properly understood in our context. This completes the overview of the big issues unless there are other issues? SDB - RE C. Disspain requirement of restricting IRP - our text does not seem to address this? BB - was this about the global public interest? SDB CD believes it should only apply to the 5 powers. BB - Global public interest as defined for ICANN. DM - para 268.7 re community IRP has no limitations. CD may of been thinking of MEM which is limited to fundamental Bylaws AG - SDB did CD think it was restricted? SDB yes BB - there was no intent that the CCWG would have such limitations. We should ask Chris to detail his concern so WP2 can consider it. KA - ICANN refers to MEM panel to review issues brought up by MEM group - this does not seem to be the same as IRP. BB - correct - if we assume the MEM panel used the bylaws as a standard for review what would be the need for the IRP panel using the same standard? The response was that it may not be necessary. The group should discuss and make a decision. There seemed to be flexibility in the Board position on this point. AG - Reconciliation issue was made by ALAC - if we leave this in we need to have appropriate output for doing this. BB - ALAC points out a gap in IRP. Do we think there is a purpose to be served by having a court of last resort if the policy is deficient. DM - re divergent policy decisions should be handled in in the new gTLD policy directly. AG - support DM but this time the Board said there was no provision for comparing decisions - in a future round it may be useful to have sanity checks but this is problematic vs TLDs already being delegated. Ultimately for panels - what is the resort for someone identifying an issue - this would mean it would be good to have a last resort. BB - Chris D has joined us. SDB explains the issue. CD - Had understood that the community IRP was limited to a finding that the bylaws had not been followed - no finding of fact but rather be about process. BB - Was more about the Board respecting the use of the community's powers vs ICANN not having respected its bylaws. CD - understand - imagine there are 2 processes IRP and MEM. MEM was for the community IRP and therefore no need for a community IRP and the associated threshold - would the results be different in the areas of dispute discussed BB - Yes there would be a difference in that ICANN would pay for it. Some in the community thought that the Trademark +50 violated the Bylaws but that IRP was too expensive to undertake. However there are strongly held feelings in the community that they could gather support for a community based IRP without having to find funding. CD - talking about 3 different things which is ok in principle - but the question is what is the practical threshold and across SOACs may be overly hard to achieve. AG - Other example - go back to ICANN CERT, first big CCWG and supported by many members - could be against ICANN Bylaws but there can be no aggrieved parties therefore only the community could bring such and IRP. KA - this is overly specific. BB - we have reached the end of this subject having reached understanding. But appreciate it is difficult. BB- Funding, costs, accessibility and independence issue re: comments. Some commercial interests thought it was important to give the panel the right to shift costs depending on the merits of the case. ICANN felt that its obligation to fund should be limited to community IRPs or MEMS. dOES ANYONE HAVE A VIEW ON THIS. DM - Our proposal was reasonable where ICANN pays for the panel with some cost shifting. Re independence agree with BB's earlier comment that govts pay for courts. Accessibility - do not know what the solution would be. BB - We seem to be converging and this should be included in the analysis, BB - other topic = Participation in a PDP required before bringing and IRP? These were heard in the first round of comments and the group felt that this standard would be difficult to apply - people affected by ICANN policies may not know they will be affected - and settled on the current text in the second proposal. There were several comments that were concerned about this. DM - Good summary. Make this an equitable defense? A subgroup could help create a valid solution. BB - echoes a way forward for BB - May be useful to think of this in the context of abuse which could cover WAITING IN THE WEEDS. BB - re the 2013 standard - the group really needs to explore what this implies. AG- is it simply undoing the Bylaws that caused the change in 2013? BB - There was a gap in understanding at the time....many detailed issues. AG - re what is being proposed is simply to undo the Bylaw change regardless of anything else. BB - possibly but there may be a possibility to close some gaps. GS - On roll back to 2013 - we need to explain it to participants so everyone understands the details to establish a common baseline. BB - Prompt action to establish WS2 group for details. We will need an assignment on this issue. BB - will send out a call for volunteers to address issues on the Major issues list. There is one additional issue which is a holdover from the discussion on AOC. AG - can we get this done in time DM - doubtful BB - (Page 80 of proposal re AOC) concerning malicious issues etc. As part of the work in preparing the second report decided this was better suited to the reviews section. An issue that has surfaced with strong feelings is the no new gTLDs until....this is a new provision which is not in the AOC. SDB - WP! while working on AOC as per comments on the first proposal. Only the Board disagreed stating it could be a barrier to entry. WP1 is considering keeping this. But this makes this cross over into this group BB - Other comments on this. AG - What if ICANN goes ahead with a new round of gTLDs knowing there are recommendations that have been made without including them? BB- current status on new gTLD review - SDB just beginning, BB - Would a new PDP on this be held until the review is completed. SDB - there are possibilities of a conflict. But we would expect that ICANN would wait for recommendations. AG - remedial actions may take a long time - and we should not be bound on waiting for this. the last clause is too wide, recommendations for new rounds should only be applicable to new rounds. BB - propose to expand the major issues list and make a call for volunteers to address these. On our next call we should discuss RFR and discuss the results of the last Friday meeting. AG - can we get it done? The Board proposal may be reasonable BB - good observation. Board and community are fairly close - as such it is important to the process for us to complete this to document the points of agreement of which there are many. DM - Similar to AG comments - request we consider creating design teams a la CWG. Alan Greenberg: So a commitment from the Board on what we agree on may be optimal. But that is a decision that perhaps we need to defer at the moment. BB - take the point on. Other comments etc. There are hard issues from mission and core values. and will use the list to move this forward. GS - some of the discussion on the list re Fiduciary Duties - which includes the Duty of Obedience. As such mission and core values have a very critical impact and as such we need to get it right. BB- we will adjourn. Documents Presented * <https://community.icann.org/download/attachments/56139495/IRP%20Major%20Iss… .docx?version=1&modificationDate=1444062904000&api=v2> IRP Major Issues 5 October 2015.docx | <https://community.icann.org/download/attachments/56139495/IRP%20Major%20Iss… .pdf?version=1&modificationDate=1444062919000&api=v2> IRP Major Issues 5 October 2015.pdf * <https://community.icann.org/download/attachments/56139495/IRP%20Comments%20… 05%20Octo%202015.docx?version=1&modificationDate=1444062937000&api=v2> IRP Comments 2nd Draft Proposal 5 Octo 2015.docx | <https://community.icann.org/download/attachments/56139495/IRP%20Comments%20… 05%20Octo%202015.pdf?version=1&modificationDate=1444062952000&api=v2> IRP Comments 2nd Draft Proposal 5 Octo 2015.pdf * <https://community.icann.org/download/attachments/56139495/AOC.pdf?version=1… 0429005&api=v2> AOC.pdf

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Documents for Posting for CCWG-ACCT
by Gregory, Holly Oct. 5, 2015

Oct. 5, 2015

Thomas, Mathieu and Leon and CCWG,, In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model. Kind regards, Holly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 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. ****************************************************************************************************

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Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
by Alan Greenberg Oct. 5, 2015

Oct. 5, 2015

Holly, Although it has no direct impact on the current discussion, could you please further elaborate on your statement at the top of page 2 that the corporation can be dissolved by a simple majority of a minimal quorum (5/9/16). The California statute [1900.5.a and 1900.5.a(7)] seems to state that for dissolution, a majority of directors must sign a certificate of dissolution. That would imply that 9 were required (presuming the Board had its full complement of voting directors at that time). Alan At 02/10/2015 03:38 PM, Gregory, Holly wrote: >Thomas, Mathieu and Leon and CCWG,, > In addition to slides comparing the Sole Member, Sole Designator > and Board Proposal from last week (which we understand did not get > posted yet) , we are providing a memo as requested in LA that > discusses how the statutory rights of a member can be constrained > in the Sole Member model. >Kind regards, Holly and Rosemary > > >HOLLY GREGORY >Partner > >Sidley Austin LLP >+1 212 839 5853 ><mailto:holly.gregory@sidley.com>holly.gregory(a)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. > >**************************************************************************************************** >Content-Type: application/pdf; name="CCWG Memo_ Constraining the Exercise of" > Statutory Rights (00719283xA3536....pdf" >Content-Description: CCWG Memo_ Constraining the Exercise of Statutory > Rights (00719283xA3536....pdf >Content-Disposition: attachment; filename="CCWG Memo_ Constraining the" > Exercise of Statutory Rights (00719283xA3536....pdf"; size=54222; > creation-date="Fri, 02 Oct 2015 19:20:05 GMT"; > modification-date="Fri, 02 Oct 2015 19:20:05 GMT" > >Content-Type: >application/vnd.openxmlformats-officedocument.presentationml.presentation; > name="Revised Slides - Key Characteristics Comparison. > CMSM, CMSD, and Board" > P....pptx" >Content-Description: Revised Slides - Key Characteristics Comparison. CMSM, > CMSD, and Board P....pptx >Content-Disposition: attachment; filename="Revised Slides - Key" > Characteristics Comparison. CMSM, CMSD, and Board P....pptx"; size=493931; > creation-date="Fri, 02 Oct 2015 19:20:06 GMT"; > modification-date="Fri, 02 Oct 2015 19:20:06 GMT" > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [CCWG-ACCT] Personal thoughts on sole member
by Jordan Carter Oct. 5, 2015

Oct. 5, 2015

Thank you to Bruce for sharing your thoughts candidly and openly once again, and to Tijani for this excellent reply. I want to +1 Tijani's comments. Bruce, we came at this from a 'how do we avoid fracturing the community, and make sure that decisions in exercising the membership powers are done responsibly and by some measure of cross-community consensus?' That is why we evolved from SO/AC membership to the community exercising membership powers together through one "entity" (really, a decision-counter - by votes or by consensus doesn't matter). The SOs and ACs will be and do participate in ICANN as themselves, if we correctly recognise that those 'selves' are just forums for ICANN's **actual** stakeholders to involve themselves in the policy process ICANN exists to serve. They would participate in the accountability powers in the same way. Your alternative route summons up all the things the CCWG's first proposal was rightly criticised for - the need for legal personality for each SO and AC; the fact this would require a complete rewrite of each of their rules in the bylaws to allow for that and for relevant decision making, and so on. My personal preference remains the SMM for the reason that it deals with this set of problems in a way that supports and upholds the multistakeholder model. I've tried to get my head around the Board's contention that it would undermine that model, but I simply can't grasp the core concern, other than it's founded on a different vision of what the SOs and ACs are and their role as routes in / bridges to the global multistakeholder community. If they aren't such bridges, then the model is broken either way. If they are, then they are the right groupings to be exercising the narrow and constrained set of accountability powers the CCWG has been concerning itself with. best Jordan On 5 October 2015 at 00:50, Tijani BEN JEMAA <tijani.benjemaa(a)planet.tn> wrote: > Bruce, > > > > You say you prefer a full membership model where each SO and AC becomes a > member rather than a sole membership model because it concentrates all the > powers in the hands of a single entity. > > > > I don’t think it is the best way to avoid capture: In case we have each SO > and AC becoming a member, all those members will have the full statutory > rights and can at anytime exercise them including before the Californian > courts. The SOs or ACs that have a big interest (financial, political, > etc.) may use their member right to force the board to act for their own > narrow interest. > > > > In the sole membership model, no power is allowed to a single SO or AC; > they can’t act separately. Any power exercise would be the result of the > community consensus (any form of consensus including voting). So no capture > is possible. > > > > The only risk would be if all the community is not represented in the sole > member decision making, but this is the same risk for the full membership > model where you would have only some SO/AC becoming members of ICANN. > > > > I don’t say that the sole membership model is the best, but if I compare > it to the full membership model, I would prefer it. > > > > > -------------------------------------------------------------------------------- > > *Tijani BEN JEMAA* > > Executive Director > > Mediterranean Federation of Internet Associations (*FMAI*) > > Phone: + 216 41 649 605 > > Mobile: + 216 98 330 114 > > Fax: + 216 70 853 376 > > > -------------------------------------------------------------------------------- > > > > > > > > > > -----Message d'origine----- > De : accountability-cross-community-bounces(a)icann.org [mailto: > accountability-cross-community-bounces(a)icann.org] De la part de Bruce > Tonkin > Envoyé : samedi 3 octobre 2015 08:32 > À : accountability-cross-community(a)icann.org > Objet : [CCWG-ACCT] Personal thoughts on sole member > > > > 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 > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community(a)icann.org > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > ------------------------------ > [image: Avast logo] <https://www.avast.com/antivirus> > > L'absence de virus dans ce courrier électronique a été vérifiée par le > logiciel antivirus Avast. > www.avast.com <https://www.avast.com/antivirus> > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(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 Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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Notes-Recordings-Transcript links for WP1 Meeting | 5 October
by Brenda Brewer Oct. 5, 2015

Oct. 5, 2015

Hello all, The notes, recordings and transcripts for the WP-1 meeting on 5 October will be available here: https://community.icann.org/x/HZ5YAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items Actions for next iteration of CCWG Proposal: * Add AoC commitment 7 to the Core Values * Clarify selection/composition of Review Teams to indicate that community can appoint members * Clarify that AoC reviews can move forward regardless of the status of the AOC or the CCWG's proposed changes to those Reviews * Clarify in the text that the Board is required to take action upon recommendations * Decision not to expand on current statement p.75: " The draft report of the Review will be published for public comment. The Review Team will consider such public comment and amend the Review as it deems appropriate before issuing its final report and forwarding the recommendations to the Board." However, the CCWG report will clarify on what is intended in this statement (public comment review tool) * Retain that ATRT may recommend changes to any AoC reviews, and clarify that RTs have the ability to recommend changes to their own review (including ending the review) * No conclusion on review team composition -- do we maintain 21 person composition or expand? * No conclusion on WHOIS review. * Recommend that initial ATRT review not be more than 5 years after the termination of the AoC. * Should Article 18 should be a Fundamental Bylaw? There was a split in the comments. Action: Staff to provide list of reviews that have occurred with composition of the reviews teams (by community group). Action: On WHOIS review text, Greg to review text (CCWG/Board) before nxet call Action: All to send Steve comments within the next 24h so that these can be incorporated for next discussion (in 36h). Action: Greg to correct #2 in Areas of Concern/Divergence to say "Time Period for Selection of Replacement Board" Action: question for the CCWG counsel: is there any question that the pre-service letters are enforceable, if a Board member refused to resign? Action: all to review the section "Options for Consideration by full CCWG" p.6 and make suggestions. Notes 1. Review of Agenda Any additional items? No 2. Review conclusions from previous meeting Steve chaired the last meeting. Jonathan will circulate an updated document in a few days. The last call discussed agenda and timeline for group work. On the Budget, group focused on areas needing clarfication. Goal is to have these updated documents done by Oct. 12. 3. AoC into the Bylaws (Steve) (review of document) Actions for next iteration of CCWG Proposal: * Add AoC commitment 7 to the Core Values * Clarify selection/composition of Review Teams to indicate that community can appoint members * Clarify that AoC reviews can move forward regardless of the status of the AOC or the CCWG's proposed changes to those Reviews * Clarify in the text that the Board is required to take action upon recommendations * Decision not to expand on current statement p.75: " The draft report of the Review will be published for public comment. The Review Team will consider such public comment and amend the Review as it deems appropriate before issuing its final report and forwarding the recommendations to the Board." However, the CCWG report will clarify on what is intended in this statement (public comment review tool) * Retain that ATRT may recommend changes to any AoC reviews, and clarify that RTs have the ability to recommend changes to their own review (including ending the review) * No conclusion on review team composition -- do we maintain 21 person composition or expand? * No conclusion on WHOIS review. * Recommend that initial ATRT review not be more than 5 years after the termination of the AoC. * Should Article 18 should be a Fundamental Bylaw? There was a split in the comments. Action: Staff to provide list of reviews that have occurred with composition of the reviews teams (by community group). Action: On WHOIS review text, Greg to review text (CCWG/Board) before nxet call Action: All to send Steve comments within the next 24h so that these can be incorporated for next discussion (in 36h). 4. Board Removal (Greg) (review of document) Actions for next iteration of CCWG Proposal: * Clarify that there will be standards for selection of interim board. Use standards suggested in ICANN Board comment and/or other standards? * Use of pre-service letters needed or not? * Threshold for multiple removals is an issue related to individual Board Directors * Clarify the consequences for failure to meet community process requirement * George Sadowsky suggests keeping process on Board removal, but tightening standards. Suggests finding a solution that it model independent for Board removal. * Alan Greenberg reminded that there needs to be clarification "eliminate potential for failure to agree on Interim Directors": SO/AC could not remove a Board member without suggesting an Interim Director. The two processes are linked and must be linked in order to proceed. * There is support for rationale to be provided along with removal of Board Action: Greg to correct #2 in Areas of Concern/Divergence to say "Time Period for Selection of Replacement Board" Action: question for the CCWG counsel: is there any question that the pre-service letters are enforceable, if a Board member refused to resign? Action: all to review the section "Options for Consideration by full CCWG" p.6 and make suggestions. 5. Review of other comment areas and agendas for next meetings &AOB * WP1 - Tues 6 Oct - 19h-21h UT Fundamental Bylaws and Regular Bylaws (Keith) Individual Director Removal (Mike and Robin) + 2nd reading of AoC (Steve) and Board removal (Greg) * WP1 - Thur 8 Oct - 05h-07h UTC Community Forum (Matthew) and CMSM (Avri and Robin) and Budget, Strat/Op Plans (Jonathan) * Maybe need another call around 18h00 on Friday 9 October to get through everything. * Thank you to all for good work. Documents Presented * <https://community.icann.org/download/attachments/56139293/AoC%20-%20analysi… n=1&modificationDate=1444041061150&api=v2> AoC - analysis of PC2_.pdf * <https://community.icann.org/download/attachments/56139293/Power%20-%20Recal… 0analysis%20of%20PC2_.pdf?version=1&modificationDate=1444040452962&api=v2> Power - Recall Entire Board - analysis of PC2_.pdf

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Fwd: Draft Agenda WP1: 5 Oct 09h-11h (note corrected time)
by Jordan Carter Oct. 5, 2015

Oct. 5, 2015

Hi all For those of you interested and with time on your hands (!), the WP1 call starts in about 45 minutes. As always, anyone is welcome to attend and participate. Agenda is below. best, Jordan ---------- Forwarded message ---------- From: Jordan Carter <jordan(a)internetnz.net.nz> Date: 5 October 2015 at 10:45 Subject: Draft Agenda WP1: 5 Oct 09h-11h (note corrected time) To: "wp1(a)icann.org" <wp1(a)icann.org> Hi all Here is our draft agenda for the WP1 call in about twelve hours. [*Note - the time of the meeting is 09h UTC to 11h UTC on 5 October - I apologise that an earlier invite went out with a wrong time.*] Remember that for the main items (3 and 4) we are trying to get to a clear understanding of what the public comments mean, and posing alternatives and/or options for discussion by the CCWG. Please advise any other agenda items needed ASAP, or in our discussion of Item 1. *1. Review of Agenda* *2. Review of conclusions from previous meeting* *3. AoC into the Bylaws - Steve DelBianco reporting* *4. Board Removal - Greg Shatan reporting* *5. Review of other comment areas and agendas for next meetings* [Current draft follows: WP1 — Tues 6 Oct - 19h-21h UTC Fundamental Bylaws and Regular Bylaws (Keith) Individual Director Removal (Mike and Robin) WP1 — Thur 8 Oct - 05h-07h UTC Community Forum (Matthew) CMSM (Avri and Robin)] *6. Any Other Business* Cheers Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet * -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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Board Transparency on Accountability Now ----RE: A way to avoid the 'The Single Member Can Do Anything!' problem
by Phil Corwin Oct. 5, 2015

Oct. 5, 2015

Steve: Thanks for this great summary of transparency aspects in WS1 and WS2. However, in my view, there is one glaring omission, and that is a requirement for greater transparency in Board operations. We live in an age where nearly every operation of government in democratic nations is web-streamed live. And ICANN is committed to transparency. Yet there are no videos or audios of Board meetings, no transcripts, and the minutes provide little in the way of detail regarding how decisions were reached and whether there was any significant dissent by individual Board members. In my personal view, the default for all Board activities should be full transparency, with redaction only for narrowly circumscribed matters. So, may I inquire whether the new COMMITMENT 1 you have noted below would have any effect on Board transparency? Beyond that inquiry, I am not arguing for moving transparency matters into WS1 because of their legal and operational complexity – with one key exception. I would favor WS1 requiring that all Board activities encompassing Accountability matters relating to the IANA transition be fully transparent to the community once a final proposal has been approved by the Chartering Organizations. My reason for that position is that there is at present a yawning gap between the information available to the Board regarding the community’s activities on accountability matters, versus the community’s access to Board consideration of the same subject. The Board has full access to every email and every opinion from CCWG counsel at the moment it is sent, and any member of the Board can participate fully in CCWG discussions and meetings. By way of contrast, the community has no access to internal Board emails regarding accountability, no access to General Counsel and Jones Day legal opinions except on a highly selective and delayed basis, and has no ability to even observe much less participate in Board discussions of accountability. The result of this glaring information asymmetry is a data disconnect that is antithetical to achieving consensus between the CCWG and the Board regarding accountability. The Board sees everything the CCWG is doing in real time, while the CCWG sees nothing of relevant Board activities and information until it chooses to share it. Imagine if the CCWG had equivalent access to Board discussions and legal documents before the LA F2F. Perhaps the decision would have been made not to hold the meeting if the CCWG knew that the Board has determined to never support the SMM. Or perhaps CCWG access to Board discussions and Jones Day analysis on a more timely basis would have fostered a constructive dialogue and facilitated preparations that would have permitted the LA meeting to be far more productive, rather than leaving many CCWG members with the feeling they had walked into an ambush. Let me go even further – not only do I believe that WS1 should require all Board activities encompassing Accountability matters relating to the IANA transition be fully transparent to the community, I would urge the Board to voluntarily begin that practice immediately. What would be the benefits of such a voluntary Board action?: · It would help make up for lost time. It is quite apparent that the fallout from the LA meeting includes adding at least weeks if not months to the CCWG’s process as it strives to determine both the reasons for the Board’s position and what it should do now in reaction to it. CCWG access to Board accountability deliberations in real time would substantially improve the overall efficiency of the accountability process – restricting information g]flows is highly inefficient. · It would demonstrate Board’s commitment to a far higher level of transparency, and its acknowledgement that such transparency is the bedrock foundation of the enhanced accountability that should accompany the transition. · It would help restore trust between the CCWG and the Board, which was substantially bruised in LA. Finally, while I would not advocate open participation in Board accountability discussions to the same extent that Board members can participate in CCWG activities, I would propose consideration of establishment of a CCWG liaison who can do so, as well as report back to the CCWG on the Board’s thinking and concerns. CCWG members seem aligned in thinking that greater transparency is an integral part of enhanced accountability, and much of what the CCWG has proposed relates to greater Board accountability. It seems inconceivable that such accountability can be achieved if the Board persists in its presently opaque mode of operation following the transition. The time to shine light on Board operations is coming, and its accountability deliberations is the place to begin. Let’s be frank. The CCWG and the Board are at an impasse, and if this accountability effort fails it will be seen as a failure of the MSM itself. That is a mortal threat to ICANN’s future and simply unacceptable. Dramatic shifts are required near-term to foster positive progress in Dublin, which is barely two weeks away. I hope that CCWG and Board members find these suggestions to be constructive, because that is the spirit in which they are offered. Best to all, 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: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Wednesday, September 30, 2015 10:44 PM To: Alan Greenberg; egmorris1(a)toast.net; Robin Gross; Accountability Cross Community Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem This reply is to help inform today's discussion thread on Transparency. Our 2nd draft report includes the term transparency on 50 different pages. But what really matters is how we add greater transparency into WS1 proposals. See these elements: We propose a new commitment in ICANN Bylaws: COMMITMENT 1. In performing its Mission, ICANN must operate in a manner consistent with its Bylaws for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions, and applicable local law and through open and transparent processes that enable competition and open entry in Internet-related markets. We propose a new element (blue text) for Core Value 2 in ICANN Bylaws: CORE VALUE 2. Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent; We require transparency as part of the new Community Forum (para 355 on p.53) We note that CWG-Stewardship requirement for IANA budget transparency in para 378: the CWG-Stewardship Final Proposal has expressed a requirement that the budget be transparent with respect to the IANA Function’s operating costs with clear itemization of such costs to the project level and below as needed. Our new requirement for an annual report on Transparency (para 511-512 on p.74): ICANN will produce an annual report on the state of improvements to Accountability and Transparency. We give all AoC review teams unprecedented access to ICANN internal documents. See Confidential Disclosure policy, para 521 – 527 on p.75. We require each AoC review team to be transparent about the degree of consensus achieved in their report. (para 529 on p.75) And for WS2, there’s this: Transparency: The community has expressed concerns regarding the ICANN document/information access policy and implementation. Free access to relevant information is an essential element of a robust independent review process. We recommend reviewing and enhancing the Documentary Information Disclosure Policy (DIDP) as part of the accountability enhancements in Work Stream 2. (p.43) The subject of SO and AC accountability should be included in the purview of the Accountability and Transparency Review process as part of Work Stream 2 working plan. (p.71) Instituting a culture of transparency within the ICANN organization: (p.121) o Limiting ICANN's ability to deny transparency and disclosure requests. o Enhancing the Ombudsman’s role and function. o Enhancing ICANN’s whistleblower policy. o Increasing transparency about ICANN interactions with governments. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alan Greenberg Date: Wednesday, September 30, 2015 at 8:00 PM To: "egmorris1(a)toast.net<mailto:egmorris1@toast.net>", Robin Gross, Accountability Cross Community Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem Ed, I didn't ask why we had not ever discussed it, but rather why we are now saying it had to be included in the current proposal. I was a member of the ATRT2 and am more than painfully aware how ineffective the DIDP is, and I have LONG campaigned for more transparency and availability of internal documents. The CCWG process is somewhat stalled due to the reaction of the Board to our draft proposal, but it was the draft that the CCWG was planning to make some final adjustments to and submit as final. The transparency and access issues were not mentioned. I believe that it is a WS2 issue and discussing it now will do nothing but obfuscate the real issues that we need to address. Alan At 30/09/2015 06:59 PM, Edward Morris wrote: HI Alan, I've raised this issue intermittently throughout our work. In Istanbul, Steve DelBianco kindly called upon me to talk about the failings of the DIDP to highlight the problem. In Buenos Aires, I raised the issue again and Thomas suggested towards the end of the meeting that perhaps we could move some transparency reform to work stream 1. Nothing became of that. This is not something we want to do in a rushed manner. Although simplistic on the face, much of what we need to do here is quite technical, involves state specific statutes (privacy, for example) and needs to be done carefully with the community working closely with ICANN staff, even in areas we may have some differences, in order to achieve an optimal outcome. I was quite happy with the status quo reference model whereby the community would have access in extraordinary situations to the most important documentation fairly soon through WS! (inspection rights via membership) while the more comprehensive and structural reforms would be developed in WS2. Now that we're faced with apparently serious proposals to eliminate both WS 2 (Board proposal) and membership, consideration needs to be given to other ways to tackle transparency within the CCWG effort. I should let people know that I've been working with Farzaneh Badii and Sarah Clayton on an analysis of all DIDP requests and responses. We're looking not only at quantifying things like success rates and DCND (defined conditions of nondisclosure) rejection rates but are also attempting to evaluate whether concerns that have been expressed to me privately by multiple Board members (for example, improper use of the DIDP by litigants in legal actions against ICANN as a substitution for / replacement of permissible discovery) are valid. The project is well underway and we hope to be able to present the results to everyone prior to our Dublin meeting. Best, Ed Morris ________________________________ From: "Alan Greenberg" <alan.greenberg(a)mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Sent: Wednesday, September 30, 2015 8:55 PM To: "Robin Gross" <robin(a)ipjustice.org<mailto:robin@ipjustice.org>>, "Accountability Cross Community" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem How is it that this was not on our original list of requirements? Alan At 30/09/2015 03:08 PM, Robin Gross wrote: Agree 100%. We would be sorely amiss in our duty to enhance ICANN's accountability if we did not address the concerns about transparency in decision making at ICANN. Robin On Sep 30, 2015, at 11:26 AM, Phil Corwin wrote: Transparency of Board meetings and deliberations is long overdue and sorely needed. It should be the rule with very narrow exceptions. Sunlight is the best disinfectant. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad On Sep 29, 2015, at 10:24 PM, Edward Morris <egmorris1(a)toast.net<mailto:egmorris1@toast.net>> wrote: Hi Jordan, I appreciate the spirit in which this thread is intended. --That is, aside from the five community powers and the ability to enforce the bylaws against the Board, the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all. So how to resolve this? The CCWG's choice of a Single Member (following its earlier choice of multiple members) was to meet the accountability requirements the community has asked for. But nobody asked for the community to have these other powers. I disagree with this premise with regards the inspection right. I've certainly made that a central component of what I've tried to accomplish here. Kieren has been a strong advocate, as well, calling it a "red line"; --- On 07/08/2015 11:37 PM, Kieren McCarthy wrote: A quick view specifically on "rights of inspection". I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements. It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls. (See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/) I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group. To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains. Kieren ----- I agree with Kieren. One of the reasons I've been content with putting transparency in work stream 2 is I've known the Inspection right came with membership in work stream 1. If that is to be excised then we need to do transparency in work stream 1. You can not have accountability without transparency. I've been involved in reconsideration requests where we have fought and lost in our attempts to get documents from ICANN that would have allowed us to have a chance of winning either the reconsideration or the IRP that would conceivably follow. Without access to documents many of the reforms we're proposing will be of minimal value to litigants. Of course, I await the specifics of the discovery mechanisms that will accompany the IRP and reconsideration reforms. I've watched as many "fears" of the legally uneducated became "truths" when repeated enough. I saw the concept of the derivative lawsuit, a power that should be welcomed by anyone interested in true accountability, so misconstrued and tangled CCWG members and participants acted out of fear this legal right could be used on a regular basis for anything, rather than what it is: a remedy designed for use in extreme situations as protection against double dealing and other types of corporate malfeasance. Rather than try to explain Inspection beyond what Kiernen has done above let me ask this: 1. Why don't we want the right of Inspection (aka in ICANN circles as the Auerbach rights)? 2. If we have them why do we want to create high thresholds for the use of those powers? Tell me how these two positions strengthen ICANN's accountability to a greater degree than inspection rights with low thresholds. And, perhaps most of all, where has the discussion occurred leading one and all to believe that we don't want these rights? Point to the thread, the legal advice etc. I've seen the big FUD over derivative rights. Where is something similar, or honest rejection of Inspection rights? Don't assume these are not important issues to some of us merely because we haven't been discussing them. They were in all of the proposals that have gone out for public comment. There is little need to fight for something you already have. I'm looking forward to receiving an analysis of the public comments to see this outpouring of opposition to the inspection rights. It must be there because I'm hard pressed to find extensive opposition anywhere else. Do we need these rights? Well, if we are going to dump them we need a complete revamp of ICANN's transparency policy to be done in work stream 1. No transparency, no accountability. No accountability, no transition. Best, Ed - I reproduce here California Corporations Code §8333: The accounting books and records and minutes of proceedings of the members and the board and committees of the board shall be open to inspection upon the written demand on the corporation of any member at any reasonable time, for a purpose reasonably related to such person's interests as a member. This is the heart of the Inspection right. It is so key I'll give it a name: the Anti-FIFA clause. It is a guarantee the corruption at FIFA will not happen at the new ICANN. The anti-FIFA clause is the principle reason I strongly support the Inspection right. 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. <ATT00001.c> _______________________________________________ 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 ________________________________ 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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Save the date: Additional time in Dublin
by Alice Jansen Oct. 5, 2015

Oct. 5, 2015

Dear all, Thank you for your feedback. In light of your input, the CCWG-Accountability Cochairs have decided to adjust the schedule as follows: * Your session on Friday, 16 October will now take place at 08:30-18:30 (instead of 09:00-17:00); * A meeting room will be booked on Saturday, 17 October AM (08:30-12:00) for informal work parties and subgroup meetings. Sub-teams will include remote participants via Skype or other technical means; * Your session on Thursday, 22 October will be extended to 08:00-10:30 (instead of 08:00-10:00). Rest assured that calendar invites will be sent to you in due course. Kind regards Alice From: Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: Thursday, October 1, 2015 12:11 AM 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: Additional time in Dublin Dear all, Further to the request for additional time in Dublin, ICANN staff has enquired about availability and identified three potential suggestions/options for your consideration: * We can extend your Friday, 16 October session to 08:30-18:30 (instead of the 09:00-17:00); * A full day session can be scheduled for Saturday, 17 October. Please note: the ICG has a session planned for 13:00 to 17:00 and some of you may not be in a position to join due to other sessions running simultaneously; * We can extend your Thursday AM session to 08:00-11:45 (it is currently scheduled 08:00-10:00). The CCWG-Accountability Cochairs invite you to raise any concerns or objections you may have on the list. For planning purposes, concerns should be flagged by 1 October - 23:59 UTC. Thanks, Best regards Alice

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FW: Continued Counsel Dialogue
by Grace Abuhamad Oct. 5, 2015

Oct. 5, 2015

Dear all, Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice. This memo is being forwarded to the CCWG-Accountability for transparency. This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel. —Grace Begin forwarded message: > From: Kate Wallace <kwallace(a)jonesday.com> > Date: October 1, 2015 at 8:49:24 PM PDT > To: "Gregory, Holly" <holly.gregory(a)sidley.com>, "Rosemary E. Fei" > <rfei(a)adlercolvin.com> > Cc: Lizanne Thomas <lthomas(a)jonesday.com>, <jlevee(a)jonesday.com>, "Kevin B > Espinola" <kbespinola(a)jonesday.com>, John Jeffrey <john.jeffrey(a)icann.org>, > <samantha.eisner(a)icann.org> > Subject: Continued Counsel Dialogue > > Dear Holly and Rosemary, > > In an effort to continue our dialogue, please see the attached document > responding to some of the issues raised in the slides you distributed on 29 > September 2015. > > Thanks, > Kate > > Kate Wallace > Partner > JONES DAY® - One Firm Worldwide℠ <http://www.jonesday.com/> > 555 S. Flower Street, 50th Floor > Los Angeles, California 90071 > Office +1.213.243.2536 > kwallace(a)jonesday.com > > > > ========== > This e-mail (including any attachments) may contain information that is > private, confidential, or protected by attorney-client or other privilege. If > you received this e-mail in error, please delete it from your system without > copying it and notify sender by reply e-mail, so that our records can be > corrected. > ========== >

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Re: [CCWG-ACCT] A path to Dublin and beyond
by Alan Greenberg Oct. 5, 2015

Oct. 5, 2015

One could interpret such a position in a more nefarious way. Specifically, "We are presenting this proposal to you because we think you will like it. As soon as you accept it and the transition happens, we will change it all to something we didn't think you would have liked." Clearly not a strategy for success. Alan At 04/10/2015 06:01 PM, Jordan Carter wrote: >If I was a decision-maker on this proposal - either the ICANN Board, >NTIA or indeed the Congress itself, or even an ICANN SO or AC - I >would be very uncomfortable at anything which suggested "we will >reevaluate the model after the transition, because we aren't sure >this is a durable accountability settlement".

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