November 2015 - Accountability-Cross-Community

Resolution of Mission Language related to regulation and contract
by Burr, Becky Dec. 14, 2015

Dec. 14, 2015

Based on our call earlier today, I have modified the side-by-side comparison of the Mission Statement (comparing current Bylaws, 2nd Draft Proposal, and proposed 3rd Draft Proposal language) to reflect the 2nd Draft Proposal language plus the contract language as follows: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not impose regulations on services that use the Internet’s unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in furtherance of its Mission. I have added the following Note per our discussion: Note to drafters: In crafting proposed Bylaws language to reflect this Mission Statement, the CCWG wishes the drafters to reflect the following considerations: 1. The prohibition on the regulation of “content” is not intended to prevent ICANN policies from taking into account the semantic meaning of domain names. 2. The issues identified in Specification 1 to the Registry Agreement and Specification 4 to the Registrar Accreditation Agreement (the so-called “Picket Fence”) are intended and understood to be within the scope of ICANN’s Mission. A side-by-side comparison of the formulation of the Picket Fence in the respective agreements is attached for reference. The PDF (as well as the PDF of the Picket Fence language) is attached. Please note also that I have added a general note to the effect that we expect the the Bylaws drafters may need to modify the Articles of Incorporation to align with the substantive changes to the Bylaws. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

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GAO report
by Thomas Rickert Dec. 8, 2015

Dec. 8, 2015

All, The General Accountability Office hast just published its report, which you can find here: http://www.gao.gov/products/GAO-15-642 Best, Thomas --- rickert.net

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Re: [CCWG-ACCT] Minority statements inclusion in report
by David Post Nov. 30, 2015

Nov. 30, 2015

The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered." I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process. To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission). I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination." Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name." Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internets unique names systems." ICANN should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety. David At 10:53 AM 11/30/2015, Mueller, Milton L wrote: >FWIW, Robinâs dissent is fully in line with >the official comments submitted by the >Noncommercial Stakeholders Group during the last public comment period. >--MM > >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Robin Gross >Sent: Sunday, November 29, 2015 6:41 PM >To: Thomas Rickert >Cc: accountability-cross-community(a)icann.org Community >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >Thanks, Thomas. See below. > >Dissenting Opinion of Member Robin Gross (GNSO-NSCG) > >The CCWG-Accountability make a number of helpful >recommendations to improve organizational >accountability at ICANN, however one aspect of >the plan is deeply flawed: changing the role of >ICANN's Governmental Advisory Committee (GAC) >from purely an âadvisoryâ role to a >âdecision makingâ role over fundamental >matters at ICANN, including its >governance. Consequently the proposal >marginalizes the role of Supporting >Organizations (SOâs) compared to todayâs >ICANN governance structure. The degree of >governmental empowerment over ICANN resulting >from the proposalâs community mechanism is >dangerous to the success of the proposalâs >political acceptance as well as to its ultimate >impact on a free and open Internet. > >The creation of a community mechanism to hold >ICANN accountable on key issues made a critical >error by departing from the existing power >balance between SOâs and ACâs as determined >by relative board appointments. Instead, the >proposed community mechanism elevates the ACâs >relative to the SOâs compared with todayâs >balance on ICANN's board of directors, which >does not currently provide a decision making >role to GAC, and which retains the primacy of >the Supporting Organizations on key decisions, >particularly those within the SOâs >mandate. The devaluing of the Supporting >Organizations in ICANNâs key decisions was a >common theme in both previous public comment >periods, however the recommendations not only >failed to address this widespread concern, but >went even further in devaluing SOâs in the >community mechanism in the 3rd report. The >community mechanism failed to take into account >the appropriate roles and responsibilities of >the various SOâs and ACâs, and the dangers >inherent in changing those roles with a âone >size fits allâ approach to critical decision making. > >Additionally, I object to the proposed departure >from ICANNâs typical 30-day public comment >period on the 3rd report for >CCWG-Accountability. The 3rd reportâs public >comment only allows for 9 days of public comment >after the language translations are scheduled to >be published, which is far too short of a public >comment period for a report of this significance >and with so many important changes since previous drafts. > >Robin Gross > >On Nov 29, 2015, at 1:29 PM, Thomas Rickert ><<mailto:thomas@rickert.net>thomas(a)rickert.net> wrote: > >Dear Robin, >as discussed during the last CCWG call, minority >statements will be included in the report as >appendices if and when they are received. > >Best, >Thomas > >--- ><http://rickert.net/>rickert.net > >Am 29.11.2015 um 21:37 schrieb Robin Gross ><<mailto:robin@ipjustice.org>robin(a)ipjustice.org>: >Dear Co-Chairs, >I have still not received a response to this >request. What is the process for submitting >minority statements? Please advise. >Thanks, >Robin > > > >On Nov 11, 2015, at 5:35 PM, Robin Gross ><<mailto:robin@ipjustice.org>robin(a)ipjustice.org> wrote: > >Dear Co-Chairs, > >Could you please advise on the proposed schedule >and process for ensuring that minority >statements will be included in the report [of the executive summary]? > >Thank you, >Robin >_______________________________________________ >Accountability-Cross-Community mailing list > ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Re: [CCWG-ACCT] Minority statements inclusion in report
by Silver, Bradley Nov. 30, 2015

Nov. 30, 2015

David, I am having some trouble understanding your examples below. Is your concern with the grandfathering of the RAA that it would give ICANN total freedom in deciding how to respond to enforcing provisions like 3.18 – even such enforcement was clearly not consistent with its stated mission? Or do you believe that to the extent any enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates “content” would take such a provision outside the mission? If it’s the latter, then it appears you are attempting to achieve a retrospective amendment of the RA and RAA – by redefining “illegal activity” or “activity contrary to applicable law” to specifically exclude any activity which relates to the content associated with the Registered Name. Bradley From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Monday, November 30, 2015 5:30 PM To: Burr, Becky Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report At 01:55 PM 11/30/2015, Burr, Becky wrote: First, we discussed this on several calls (3 or 4), including the last. Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward. Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms. As I said on this very topic recently: Beyond that, the language of 3.18 in question imposes obligations on registrars – maintain ann abuse point of contact, investigate allegations regarding illegal activities, take appropriate action, so I donâ€™t think that amounts to regulating registrants. I also agree that there are situations in which illegal activity could impact the stability and security of the Internetâ€™s unique identifiers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANNâ€™s Mission. The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an â€œ appropriate responseâ€ is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce. But that's the problem, right there. You say that if ICANN "exceeds the scope of its authority" if it "begins to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach." But why is it so obvious that this exceeds the scope of its authority? You will say: because we have said elsewhere that ICANN shall not regulate content, and this regulates content. But it is not far-fetched for someone to suggest that the "grandfathering" language modifies that, and was included precisely to make it clear that enforcing the provisions of existing agreements is WITHIN ICANN's authority. Under existing agreements, Registrars are already obligated to provide "consequences ... including suspension of domain name registrations" for "activities contrary to applicable law." Defamation is an "activity contrary to applicable law." Suspending registrations in response to allegations that an underlying site is defamatory is thus within the scope of (existing) agreements. If those agreements are grandfathered in, it looks to me like we're saying that when ICANN acts as it is authorized to do within the existing agreements, it is acting within the scope of its authority. David J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: David Post <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com> > Date: Monday, November 30, 2015 at 1:32 PM To: Accountability Community < accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < NCSG-DISCUSS(a)LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, Thomas Rickert <thomas(a)rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered." I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process. To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission). I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination." Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name." Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internetâ€™s unique names systems." ICANN should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety. David At 10:53 AM 11/30/2015, Mueller, Milton L wrote: FWIW, RobinÃ¢€™s dissent nt is fully in line with the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --MM 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 Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Thanks, Thomas. See below. Dissenting Opinion of Member Robin Gross (GNSO-NSCG) The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an Ã¢€œadvisoryÃ¢€ role to a Ã¢€ Ã¢â‚¬œdecision makingÃ¢€ role over fundamental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SOÃ¢€™s) compared to todayÃ¢€™s ICANN goveNN governance structure. The degree of governmental empowerment over ICANN resulting from the proposalÃ¢€™s cs community mechanism is dangerous to the success of the proposalÃ¢€™s political acceptance as well as to its ultultimate impact on a free and open Internet. The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SOÃ¢€™s and nd ACÃ¢€™s as determined by relative board appointments.ts. Instead, the proposed community mechanism elevates the ACÃ¢€™s relative to the SOÃ¢€™s compared wpared with todayÃ¢€™s balance on ICANN's board of directors,rs, which does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SOÃ¢€™s mandate. The devaluing of tf the Supporting Organizations in ICANNÃ¢€™s key decisiosions was a common theme in both previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SOÃ¢€™s in the community mechanism in the 3r 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SOÃ¢€™s and ACÃ¢€™s, and the dangers angers inherent in changing those roles with a Ã¢€œone sizeze fits allÃ¢€ approach to critical decision makingg. Additionally, I object to the proposed departure from ICANNÃ¢€™s typical 30-day publublic comment period on the 3rd report for CCWG-Accountability. The 3rd reportÃ¢€™s public comment only allallows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts. Robin Gross On Nov 29, 2015, at 1:29 PM, Thomas Rickert <thomas(a)rickert.net<mailto:thomas@rickert.net>> wrote: Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received. Best, Thomas --- rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c…> Am 29.11.2015 um 21:37 schrieb Robin Gross <robin(a)ipjustice.org<mailto:robin@ipjustice.org>>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin On Nov 11, 2015, at 5:35 PM, Robin Gross <robin(a)ipjustice.org<mailto:robin@ipjustice.org>> wrote: Dear Co-Chairs, Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]? Thank you, Robin _______________________________________________ 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 ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com <http://www.davidpost.com /> ******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com <http://www.davidpost.com /> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices(a)timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================

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Re: [CCWG-ACCT] Minority statements inclusion in report
by David Post Nov. 30, 2015

Nov. 30, 2015

At 02:41 PM 11/30/2015, Silver, Bradley wrote: >I cannot imagine how anyone could force ICANN to >interpret and enforce 3.18 or any other >provision in a manner that doesn't comport with >ICANN's mission, particularly since we have >language that says: ICANN shall act strictly in >accordance with, and only as reasonably >appropriate to achieve its Mission ii.e. to >ensure the stable and secure operation of the >Internet's unique identifier systems. Any and >all actions taken under Section 3.18 or the RAA >do not suddenly become immunized from scrutiny >by acknowledging that the RAA is within ICANN's mission. Here's what I can easily imagine: Registrar XYZ is brought before the PICDRP, in a complaint brought by the Consumer Federation of Mexico, which asserts that XYZ is violating the mandatory PICs because it does not enforce the contract term prohibiting domain name holders from engaging in "activity contrary to applicable law"; specifically, it does not revoke domain names that are being used to sell fraudulently labeled goods. The Registrar responds by saying: revoking our accreditation on those grounds is improper, because policing consumer fraud is outside of ICANN's Mission. The complainant responds: But the provisions of the Registry Agreement and the RAA (including the PICs, and Registy XYZ's obligation to include in their agreements with Registered Name Holders prohibiting them "from ... engaging in activity contrary to applicable law," and "providing . . . consequences for such activities including suspension of the domain name") been "grandfathered" into the Mission - i.e. deemed to be within the scope of ICANN's powers. That seems to me to be a perfectly reasonable way to read the "grandfathering" language. It's not a case of forcing ICANN to enforce the contracts in a manner that "doesn't comport with the Mission" - it's a way that ICANN can use the language of the existing agreements to expand the definition of and boundaries around the Mission. I take it you would say: that's not what the Proposal means when it says that "the language of existing registry and registrar agreements should be grandfathered" - that the language is NOT meant to say that ICANN I'm glad to hear that - but if it doesn't mean that, what does it mean? You admit that the new language "acknowledg[es] that the RAA is within ICANN's mission," but you assert that that doesn't "immunize actions taken under the RAA from scrutiny." But I think it certainly could be read to do just that. In fact, that strikes me as the natural reading of the language. If we're saying that the provisions of the RAA are within ICANN's mission, how can ICANN's actions to enforce those provisions ever be outside the Mission? That doesn't make sense to me - and so it does indeed look, to me, like any actions ICANN takes pursuant to the provisions of the existing agreements are "immunized from scrutiny." David > >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Mueller, Milton L >Sent: Monday, November 30, 2015 2:13 PM >To: Burr, Becky; David Post; Accountability Cross Community >Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >Becky, David >We did discuss this but there are obviously >still loose ends that need to be resolved. > >You yourself say: > >The problem, of course, is that not all illegal >activity threatens the stability and security of >the DNS; behavior that is illegal in some >jurisdictions is not illegal in all >jurisdictions; and the legality/illegality of a >particular activity is generally a determination >left to sovereigns or courts. So, what >constitutes an â appropriate responseâ is >going to vary from case to case. Theoretically, >ICANN could choose to enforce the requirement in >a manner that exceeded the scope of its >authority, e.g., it could begin to say that >registrars who do not suspend registrations in >response to allegations that an underlying site >is defamatory are in breach. But I think 3.18 >itself is a legitimate contract provision that >ICANN should be able to enforce. > >MM: To me, this means that we have to find a >wording that ensures that attempts by ICANN (or >by litigants external to ICANN) to force >ICANN to interpret and enforce this 3.18 in a >way that extends iits mission outside the >boundaries can be stopped. Your current proposal >makes it sound like a blanket endorsement of anything 3.18 might be used to do > > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at ><mailto:ITServices@timewarner.com>ITServices(a)timewarner.com > > >================================================================= > >=================================================================This >message is the property of Time Warner Inc. and >is intended only for the use of theaddressee(s) >and may be legally privileged and/or >confidential. If the reader of this messageis >not the intended recipient, or the employee or >agent responsible to deliver it to the >intendedrecipient, he or she is hereby notified >that any dissemination, distribution, printing, >forwarding,or any method of copying of this >information, and/or the taking of any action in >reliance onthe information herein is strictly >prohibited except by the intended recipient or >those to whomhe or she intentionally distributes >this message. If you have received this >communication inerror, please immediately notify >the sender, and delete the original message and >any copiesfrom your computer or storage system. >Thank you.================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Call #71 Postponed
by Alice Jansen Nov. 30, 2015

Nov. 30, 2015

Sent on behalf of Co-Chairs Dear all, This it to inform you that Co-Chairs have concluded that it would not be effective to hold a CCWG-Accountability call only a few hours after the release of the Draft Proposal due for midnight UTC November 30th. As such, this week's call scheduled for noon UTC December 1st 2015 is postponed to next week: Tuesday, 8 December at 19:00-21:00 UTC. The agenda foreseen for next week will include debrief on input received during the webinars scheduled for Wednesday, 2 December<https://community.icann.org/pages/viewpage.action?pageId=56984258>, IRP implementation oversight Team and report of Chartering Organizations' discussions and activities. Thank you, Best regards Mathieu, Thomas, León

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Minority statements inclusion in report
by Robin Gross Nov. 30, 2015

Nov. 30, 2015

Dear Co-Chairs, Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]? Thank you, Robin

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Board information calls
by Bruce Tonkin Nov. 30, 2015

Nov. 30, 2015

Hello All, A few weeks back I was asked to see what could be done to provide some information on the topics discussed in "Board Informational Calls". We have these calls to share ideas and discuss the work of the various transition and accountability groups. Information on these calls is now published on the Board meeting page at: https://www.icann.org/resources/pages/meetings-2014-01-06-en Notes are available for the following calls: 4 Nov 2015: https://www.icann.org/resources/board-material/report-2015-11-04-en 12 Nov 2015: https://www.icann.org/resources/board-material/report-2015-11-12-en 18 Nov 2015: https://www.icann.org/resources/board-material/report-2015-11-18-en Regards, Bruce Tonkin

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Public Comment Launch + Posting of Core Proposal/Appendices
by Hillary Jett Nov. 29, 2015

Nov. 29, 2015

Dear all, Thank you again for your constructive edits. We are pleased to announce that the Core proposal and Annexes were finalized in light of your input and are now available on your wiki at https://community.icann.org/display/acctcrosscomm/Third+Draft+Report. In line with our timeline determined in Dublin, the Third Proposal will be posted for public comment tomorrow. A survey will be provided to frame input received on our conclusions. We invite you to refer to the feedback tracking spreadsheet <https://docs.google.com/spreadsheets/d/1Qjpbcl6M-W_9FJXahZCPdIIMz0YJI_PMfys lAm2QxH8/edit?usp=sharing> and Sidley comments for an overview of edits that were integrated. Please note that the documents posted on the wiki are now closed for edits. Any amendments you may have will be considered for the final iteration of our document post the public comment period. As a reminder the Public Comment Period on our Third Proposal all close on December 21 and staff summary of input received is scheduled to be delivered on December 24. Best regards, Mathieu, Thomas, Leon -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #70 - 26 November
by Brenda Brewer Nov. 29, 2015

Nov. 29, 2015

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #70 - 26 November will be available here: https://community.icann.org/x/-sBYAw 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. Confirmation of Mission language No discussion. "Agreed on mission text as presented By Becky Burr, with the clarification of the use of the 'in service of text' in place of 'in furtherance of' Confirmation of decision threshold Feedback: - Disatisfaction - there are other ways to get around the problem. We should be addressing Fundamental Bylaw in easier way. --> This threshold and this fix apply to the Budget power, Fundamental bylaws power and Board recall power CONCLUSION: Keep this proposal as part of third report. ST18 Determination of process was made before NTIA statement. No alternative proposal to text that was in Second Draft Proposal Feedback: - What is the position with respect to definition of consensus --> We would use Second Draft language in Third Report - Proposed way forward is not acceptable. No consensus was achieved with respect to Second Draft language. Many governements have expressed objection to that language. It cannot be ignored. There was clear support for Co-Chairs proposal on Tuesday. - We cannot support current proposal. - There is no consensus on right way forward. There are two divergent views on what GAC role should be. Chartering Organizations' test might be needed. Imperative to determine where balance is. Second Report language does not satisfy anyone as no clear definition of consensus. Vague language in Bylaws is a risk. - GAC efforts to reach compromise are being ignored - This proposal should be made readable. - We cannot have ambiguous issue. It is not a viable solution. Advice needs to be consensus. language has to be fixed. GAC need to accept it has to be full consensus advice. - We deliberately backed off of a specific definition to address GAC concerns. - Statements would need to be clarified in this proposed draft. They are not factually correct. On call 69 - 17 agreed to facilitation proposal and 8 opposed - consider diversity and representation of this temperature call - We need to move forward with defining consensus as current practice. We need to acknowledge that the GAC still has ability to refine its operating procedures and to be creative when defining consenus. We cannot have a path forward without defining consensus. Consider replacing significant with "formal". - It will be misunderstood if we try to regulate what governments can do. We have a balanced relationship between governments and stakehodlers. It is clear from NTIA statement that this matter should be negotiated in GAC and not CCWG. - Considering a supplemental proposal would be very unfortunate. Reconsider language proposed by Finn. - Notion of 2/3 instead of simple majority. - Need clarity on what flexibility means. - The proposal that was put forward by Steve is worth considering under the condition that there is flexibility for GAC to define what formal objection means. Is flexibility as laid out in Keith Drazek's email something we can consider? - Support clear acknowledgement that GAC operating principles are its own business and that flexibility is warranted. GNSO is uncomfortable with 2/3 but in interest of compromise, we need to consider it seriously. There is an opportunity to reach a proposal for COs to consider report. - We have a process for changing fundamental bylaw. - Formal objection is plain language. - Suggestoin to agree on conceptual level and wait for reacton in third public comment perod. Include a note that it is a concept and that Bylaw language will be refined - Words "absence of formal objection" would be in Bylaws. - 2/3 vs. full consensus Review of Finn's proposed text and Keith's note It needs to be spelled out very clearly if we want to reach level of consensus we have not reached so far. CONCLUSIONS - we will review ST18 recommendation against Finn and Keith's lines, send it out in writing asap noting that during this call that was no formal objection was lodged against it. We will move forward with this for third report. Board Comments Intention is to respond to comments summarizing input from our group and to explain why these comments are taken into account or not in a factual manner. Survey & Outreach Survey put together to facilitate process of offering comments on our Third report. Three levels of response: Yes/No/In spirit of compromise I will support this. Box will be included for each question. Two webinars organized on 2 December. Report appendices available on wiki. Feedback: - Caution against using mid-level response in survey. It won't bring valuable input. - "Is this a solution that is acceptable to you" - Important to draw out difference between those who are happy with proposal and those who aren't. CONCLUSION: 2 webinars to be held on 2 Dec. AOB / Action Items /

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