November 2015 - Accountability-Cross-Community

comments on Annex 1 to draft report
by Robin Gross Nov. 24, 2015

Nov. 24, 2015

Comments on Annex 1. p.4: “This includes the IRP, which issues binding decisions and grans the Empowered Community the power to launch an Independent Review Process challenge if it believes the ICANN Board is in breach of its Bylaws or Fundamental Bylaws.” Isn’t this too narrow? Aren’t we forgetting to list a breach of the Articles of Incorporation (not only bylaws)? p.4: Additional Powers Granted Inclusion in the ICANN Bylaws - We should explicitly cite California corporations code section 6333 and the transparency rights it provides as our benchmark. p. 6: “Maintaining the advisory role of govts in the Supporting Organization and Advisory Committee Structure”. This sounds like we are trying to hide the truth, which is that we are changing the GAC from being an advisory role to being a decisional role on key ICANN issues. We should be more upfront about how this changes the roles and why we think it is worth doing. Also, I don’t see where we explain why we didn’t follow the public comment, which cautioned against devaluing SO’s to ACs and instead went in the opposite direction by providing an even higher decisional weight to ACs than had be offered in the 2nd draft. At the very least we owe an explanation for why we are doing the opposite of what public comment called for. There is no discussion at all as to how public comments were treated in the formulation of this report. It also seems misleading to say we are not voting when we treat all five SOACs with equal weight in a decisional process. I expect this annex will lead to much public dis-satisfaction over how comments and other concerns were handled and then not explained in any way in the report. Best, Robin

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Definition of public policy advice from the GAC
by Bruce Tonkin Nov. 24, 2015

Nov. 24, 2015

To the GAC members on this list, I note that in the bylaws the GAC has a role in providing "public policy" advice to ICANN. Does the GAC have a working definition of what this means? Is there a UN standard definition of some sort? and I must admit I have never fully understand the term. I had originally expected that the GAC would provide advice on national laws and international treaties as it relates to ICANN. I can understand that each country may have "policies" that are perhaps written documents and may vary by which government is in power at the time. E.g. a national government may have a written immigration policy or a foreign trade policy etc. These policies presumably have been approved by one or more Government ministers, and would generally be public. Not sure how the GAC provides advice on "public policy" - should there be some sort of written national policies that support such advice? e.g. ICANN policies are documented, approved by the Board, and made public. Thanks, Bruce Tonkin

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TR: Memo on Approval of Amendments to Articles
by Mathieu Weill Nov. 24, 2015

Nov. 24, 2015

Dear Colleagues, Please find enclosed a memo from lawyers on a question that was identified during a recent WP1 call. Jordan has been mentioning it on the CCWG call. Mathieu De : Gregory, Holly [mailto:holly.gregory@sidley.com] Envoyé : lundi 23 novembre 2015 23:33 À : León Felipe Sánchez Ambía; Thomas Rickert; mathieu.weill(a)afnic.fr; ACCT-Staff Cc : Sidley ICANN CCWG; ICANN(a)adlercolvin.com; Rosemary E. Fei (rfei(a)adlercolvin.com) Gregory, Holly; ICANN(a)adlercolvin.com Objet : Memo on Approval of Amendments to Articles Dear Co-Chairs and Staff, In response to the question you certified to us today, attached please find a memo regarding approval of amendments to ICANN’s Articles of Incorporation by the Empowered Community, for distribution and posting. Please let us know if you have any questions. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com <http://www.sidley.com/> www.sidley.com <http://www.sidley.com/> Description : Image supprimée par l'expéditeur. http://www.sidley.com/files/upload/signatures/SA-autosig.png SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

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TR: ST18 subgroup report Nov 23
by Mathieu Weill Nov. 24, 2015

Nov. 24, 2015

Dear Colleagues, Please find attached a report from the ST18 subgroup, for discussion during the CCWG call in about 12 hours. This is a co-chair summary, with options about which we will discuss in order to define our groups way forward for the Draft Report. I want to express my warmest appreciation and thanks to all the ST18 subgroup colleagues who participated with great interest to our work, and especially to the colleagues who provided constructive inputs to these discussions. Best Mathieu De : Mathieu Weill [mailto:mathieu.weill@afnic.fr] Envoyé : lundi 23 novembre 2015 18:39 À : s18(a)icann.org Objet : ST18 subgroup report Nov 23 Dear Colleagues, Please find attached the (very summarized) report of our work that will be presented tomorrow in the CCWG. It will be circulated momentarily to the full group. Thanks again for all the constructive and valuable inputs you have provided to advance this key item of our work. Best, Mathieu

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WP2 Issues with third draft
by Alan Greenberg Nov. 24, 2015

Nov. 24, 2015

I have not had the time to do a de novo review of the current draft from a WP2 perspective, but I have reviewed it for changed in response to the ALAC comments. Following are issues which to the best of my knowledge, I cannot find any appropriate changes. MISSION, CORE VALUES Page 33: In the infamous "ICANN shall have no powers" section (those words since removed), I have been assured that there will be instructions to the lawyers so that the final crafted Bylaw will make it clear that for the purposes of this section, the identifiers themselves will be deemed not to be content. A footnote in the Annex would give me some comfort. Page 35: "Preserve and enhance the neutral and judgment free operation of the DNS...". The ALAC had problems with this clause. At some point I was told the words came directly from the AoC. I cannot find them. What is the rationale and exactly how is ICANN supposed to do this. I can accept ICANN taking no actions to violate this, but the wording is far wider than that. Page 38: "Depending on market mechanisms to promote and sustain a healthy competitive environment in the DNS market.". The original text was preceded by "Where feasible and appropriate". ICANN has a responsibility to uphold the public interest, and to do that it must be able to make value judgements as to when the open market mechanisms are sufficient and when it must intervene. Adding the words "healthy" and "bottom up" are not sufficient to accomplish that. Nowhere: Article 3 of the AoC includes the text "promote competition, consumer trust, and consumer choice in the DNS marketplace". Consumer choice and consumer choice did not make it into the revised Bylaws. The ALAC is not overly concerned with consumer choice, but is very concerned about consumer trust. It must be incorporated. IRP The IRP still includes that ability to address conflicting panel discussions (there was talk about handling these in another way, but I can find no such text). However, the outcomes of the IRP do not allow for a decision to address this kind of IRP. Alan

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To the co-chairs: open mailing list for communication between staff and ccwg leaders
by farzaneh badii Nov. 24, 2015

Nov. 24, 2015

Dear co-chairs As from 24 to 25 Nov the content of the proposal will be finalized with consultation with the co-chairs, leaders of the working parties and staff supporting this CCWG, I would like to ask that communication between these parties be made through the open mailing list I suggested a few days ago and seemed to be supported by a number of the CCWG participants and members. With so much community focus on this third draft, it can only help us with perceptions of transparency if we make everything about the process available for people to follow, if they wish to do so. Please also consider this practice for future communications of working group leaders, ICANN staff and yourself. Best -- Farzaneh

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Proposed agenda: CCWG Meeting #69 | 06:00 UTC | 24 November
by Brenda Brewer Nov. 24, 2015

Nov. 24, 2015

Hi all, Here is the proposed agenda for CCWG ACCT Meeting #69 <https://community.icann.org/x/zLxYAw> on Tuesday, 24 November @ 06:00 UTC: Tuesday agenda call 1) Welcome, roll-call, SoI 2) Finalizing Third Draft Proposal - WP1 update - WP2 update - Stress Test 18 update 3) Timeline 4) AOB Also, please note that the co-chairs may opt to extend the duration of this call to complete all items. If all items are completed on this call there would be no need for a Thursday call. Adobe Connect: <https://icann.adobeconnect.com/accountability/> https://icann.adobeconnect.com/accountability/ Kind regards, Brenda

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Comments on draft docs
by Steve DelBianco Nov. 23, 2015

Nov. 23, 2015

Here are my comments on the Main Document, Annex 9, and Annex 12. I shared most of this with WP1 on yesterday’s call, bu wanted to post them to the full CCWG as well. p.3 Community powers listed do not show the Community-based IRP. On p.46, the community IRP is mentioned, but nowhere do we spell out the threshold to launch a community IRP. Our Dublin decision model showed a community IRP required support of 3 AC/SOs and no more than 1 objection. p.5 – where did this line come from, and what does it mean? "Workable consensus reforms that enhance the role of the community and ICANN’s Mission should be consistent with ICANN’s interest as a corporate entity." It was in our 15-Nov summary, but was NOT in our 2nd draft report. Sometimes community interests will NOT be consistent with interests of the corporate entity. I recommend we DELETE that line. p.10 Empowered Community graphic shows GSO. Should be GNSO p.12 Escalation graphic: I think ENFORCEMENT should be on the horizontal line in upper right corner, to imply this is a step after notifying the ICANN board of the community decision. That would match better with the Enforcement step described on p. 15 p.12-13 Step 1: after 1 AC/SO approves the petition, shouldn’t we allow an extra 15 days for a second AC/SO to also approve the petition? p. 13 Step 2: I’m pretty sure we also said that the conference call would be recorded and transcribed, and published. p. 16: should we add “ and Articles of Incorporation” to the 5th bullet, “Approving any modifications to Standard or Fundamental Bylaws”. Articles already say, "9. These Articles may be amended by the affirmative vote of at least two-thirds of the directors of the Corporation. When the Corporation has members, any such amendment must be ratified by a two-thirds (2/3) majority of the members voting on any proposed amendment.” Should we change the Articles to say “Members or Designators”? p.18: numbered item 5 says “Sole Member Model” Should be Sole Designator Model. p.20, 21, 22: should we add “ and Articles of Incorporation” to the 5th bullet, “Approving any modifications to Standard or Fundamental Bylaws”. p.23: says “none objecting”, but I thought we always require more than one objecting to block a power. My notes from Dublin show that we required more than one objection to block removal of a NomCom director. Perhaps this was changed after Dublin, but I’m not sure. p.46: (IRP) I recall Becky wanted the IRP to address action or inaction. "The standard of review shall be an objective examination as to whether the complained-of action [or inaction] exceeds the scope …" p.46: (IRP). Says "A community Independent Review Process would be completely subsidized by ICANN”. Would be clearer to say, “Legal costs for a community Independent Review Process would be paid by ICANN” p.49: says "Based on stress test analysis, CCWG-Accountability recommends incorporating the reviews specified in the Affirmation of Commitments …” More precise to say, “Based on Stress Test #14, CCWG-Accountability recommends incorporating the commitments and reviews specified …" P.55: Transparency in WS2: Becky — didn’t we commit to give the Sole Designator the same document access rights that the Sole Member would have under CA law? If so, that should be in this section. Annex 9: This annex does not include the tables where we describe the changes to AoC reviews as they are brought into the bylaws. Must be an oversight, since those tables include many, many WP1 decisions about specific review team requirements. I attached the AoC document again here. Annex 12: Stress Tests. This draft shows none of our analysis of existing and proposed measures. I strongly recommend we return to the table format (attached includes the updated ST 29 and 30). This would add as much as 17 pages to the annex, but I don’t see how we can justify the Stress Test conclusions without showing how we reached the conclusions. Annex 12: note that the introductory sentence for ST 29 and 30 was updated to this, per a request from Greg Shatan: Public commenters requested two additional stress tests regarding challenging enforcement of contract provisions on the basis that they exceed the limited mission of ICANN.

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Notes-Recordings-Transcript links for WP1 Meeting | 22 November
by Brenda Brewer Nov. 23, 2015

Nov. 23, 2015

Hello all, The notes, recordings and transcripts for the WP-1 meeting on 22 November will be available here: https://community.icann.org/x/XMJYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Item * ACTION ITEM: CoChairs to request that SO/AC confirmation of participation be sent along with input on third draft proposal * ACTION ITEM: Determine where full IRP process should be added 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. LInk to docs: <https://community.icann.org/x/eLRYAw> https://community.icann.org/x/eLRYAw - No discussion of decision threshold in engagement/escalation - it needs to be added to the powers - IANA Functions review language should be further elaborated. - IRP, separation processes need to be described in detail ACTION ITEM: Determine where full IRP process should be added - Rights of inspection: there is a generic reference - its needs to be made explicit that rights of inspection equivalent to member's DIDP should be subject to IRP - this is unclear in WS2 DIDP appeals mechanisms - Human Rights - add 'if any' in human rights appendix - Ombudsman improvements missing from WS2 - Add table of required threshold to core proposal - Consider reordering sections (staff to refer to Jordan's request) -Articles should be subject to co-decision but lower threshold than Fundamental Bylaws Protection should be offered to Articles of Incorporation at level of membership model Other views that should be on same protection as Fundamental Bylaw - Reinsert AOC tables into annex 9 ACTION ITEM: CoChairs to request that SO/AC confirmation of participation be sent along with input on third draft proposal

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JC comments on Draft Report
by Jordan Carter Nov. 23, 2015

Nov. 23, 2015

Hi all Some brief comments on the report where I try not to repeat things others have said. Also not to repeat things discussed on WP1 calls. May be some repetition however. First - thanks to the staff for doing a great job with this. In the Main Report: P5 - this sentence "Workable consensus reforms that enhance the role of the community and ICANN’s Mission should be consistent with ICANN’s interest as a corporate entity." - I think like Steve it needs to be deleted. I *assume* what it means is "they should be consistent so ICANN wouldn't try to block it", but I think it reads as "reforms that aren't in ICANN's corporate interests won't happen" - the first is fine the second is not. P8 and elsewhere - the order of the recommendations and the annexes is wrong. We should start with the powers we are granting the community (#4), then how they are used (EEE - #2), then the model for enforceability of those powers (#1) and then onto the bylaws etc (#3 and on). Otherwise we are telling the story the wrong way around. P9 and elsewhere - the CCWG did not change from SM to SD because of the "risks" - that language is too strong. There were concerns about perceived risks and those concerns led to a change, which was acceptable because Sole Designator could meet our requirements. So the subheading of the previous section is fine ("Concerns with a sole member model") --- but the first sentence of the next section has to talk about concerns, not risks. P10 and elsewhere - in the detail requirements list #1 - this sentence is the wrong way around. The form the Empowered Community takes is of a California-based unincorporated association, and it is to have legal standing as a Sole Designator. P11 and elsewhere - Rec 2 - the point of this process is not to prevent disagreements happening, it is to resolve disagreements constructively. The language should reflect that. P. 28 and elsewhere - all the starting timelines to exercise powers that the community initiates or that start by Board action need to be from the date the Board action is announced, not the date the decision is made. People can't start to act on a decision they don't know about. This needs to be consistent throughout the proposal. Annex 1: P1 - the idea of NTIA as a "perceived enforcement body" is misleading and wrong. The language we used in the Second Draft Report is more honest and more accurate - something like "With the end of the iANA Functions Contract between ICANN and NTIA, and the perceived backstop accountability this provided..." P1 - the Sole Designator legal entity does not only have the power to add/remove directors. It also has the power under law to be required to agree to bylaw changes. I think we need to clarify that. A quick chat with the lawyers should answer the point. P4 - members of the Empowered Community UA - we have to be clear that the decisions are taken in the SOs and ACs, and vitally, that that applies no matter whether or not that SO or AC has a 'real live human being' as a participant in the Empowered Community UA. This is because otherwise we risk re-creating concerns about the "avatar problem" that dogged our First Draft Proposal membership system, and because some SOs or ACs might find it impossible to appoint an individual to such a role. Annex 2: P9 - it needs to be clear that the community can commence using the Board Recall power even if an IRP is under way (since the Board Recall power is unconstrained in the "cause" sense). Annex 3: - we should apply an approvals process to the Articles. I am not concerned whether it's on the same co-approval basis as for Fundamental Bylaws, or rejection basis as for Standard Bylaws, but it needs to be one or the other. Annex 4: - need to include Community IRP and IFR material. Don't care if this gets relabelled 7 powers to accommodate. - It's also probably the logical location for the table setting out decision thresholds. A couple of final broader points: - the IANA Functions Review needs to be spelled out in more detail somewhere - I agree with Greg's comments about principles - I agree with Steve's points about AOC reviews and the Summary part of the main report needs to be clear that it's more than just the Reviews being ported in from the AOC - timelines for powers - we probably need to extend the petition phase a little to make sure the (new, higher) threshold of two SOs/ACs can get their act together. Hope this helps 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 *

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