November 2015 - Accountability-Cross-Community

Stress test 18 - Follow-up call #67
by Mathieu Weill Nov. 13, 2015

Nov. 13, 2015

Dear all, As indicated on call #67 today, we are forming a subgroup tasked with assessing the state of play and the various options on Stress Test 18 language, so that the CCWG can decide how to proceed in the third CCWG-Accountability Work Stream 1 proposal. It is expected that this subgroup will need to produce outcome for CCWG-ACCT consideration in a very timely fashion. A call to kick off discussions will be held next week, exact date to be disclosed soon. The call will be recorded and transcribed. Please note that a mailing-list will also be set up. We invite you to express your interest to join the group by sending a notification to <mailto:acct-staff@icann.org> acct-staff(a)icann.org preferably by today end of business day. Thank you Best regards Mathieu, Thomas, León

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Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
by Roelof Meijer Nov. 13, 2015

Nov. 13, 2015

Dear all, After improving the proposal with the remarks made by some GAC members (especially Mark and Finn), I fail to understand why most commenters on this proposal, instead of starting from what they do like and what the CCWG could work with, start with what they do not like and cannot live with. I do know that it is a very effective way not to converge and not make any progress. Which seems to be exactly what is happening. On a much higher level, I find it almost unbelievable that some think that, in an global environment where our economies and societies become rapidly very dependent on the internet (and with that, on the DNS), we can prevent governments from getting the fair share of influence that has to come with the tasks societies give them. Yes, some governments want more and one has to be alert, but that is also true for the private sector. I think Pedro’s proposal, with the amendments suggested, in the basis is a way out of the mess that stress test 18 has become, that will actually work. Quite a few argue that "This would be a significant expansion of the current role and influence of the GAC”. That might be the case, but, with the powers we foresee, the influence of ALL stakeholders would significantly expand. That’s the whole idea behind enhancing ICANN’s accountability (to the community). Moreover, as Avri remarked earlier, "what is most important is that the board can reject GAC/AC's advice and that it learns how to do so when that is appropriate". Through the new powers, the (rest of the) community can make sure it can and does so when appropriate. So, I have no serious problem with aligning the threshold for rejection of consensus GAC advice with the SO’s and set it at 2/3rds. And as we know, it is not something new either; as the ATRT’s recognized this (and did so with the present accountability structure and without narrowing it’s applicability down to consensus advice, as far as I know). In line with how this is for the other constituencies, I find it no more than logic that the GAC determines what consensus GAC advice is and how it arrives at it. The phrase "the advice provided is clear and reflects the consensus view of the committee” in the proposal helps there: there’s objectively not a lot of maneuvering space before an advice will evidently NOT be consensus advice and can be rejected on that ground. I would agree that a single objection in a large group (as e.g. the GAC), falls within that maneuvering space, if the relevant SO or AC would so decide. Concluding: with the incorporation of the remarks mentioned, and in the absence of public statements of disagreement from GAC members, I urge us to put the proposed bylaw texts in our proposal and conclude the work on Stress Test 18. Best, Roelof Meijer From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo(a)itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> Date: maandag 9 november 2015 11:28 To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion Dear CCWG colleagues, As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following: "The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered: * The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee; * The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus; * The value the Board attributes to receiving consensus advice; * The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations. In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability." With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws. ARTICLE XI: ADVISORY COMMITTEES Section 1. GENERAL “The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board. Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.” ARTICLE XI: ADVISORY COMMITTEES Section 2. SPECIFIC ADVISORY COMMITTEES Item 1.j “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Kind regards, Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação Ministério das Relações Exteriores T: +55 61 2030-6609

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the 'emails'...
by Konstantinos Komaitis Nov. 13, 2015

Nov. 13, 2015

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IGF informal gathering
by Grace Abuhamad Nov. 13, 2015

Nov. 13, 2015

Hi all, If any of you are at the IGF, the media conference room was reserved from 9-12 as a space for CCWG folks to gather. Many are exhausted from the call, since it was from 3-5am this morning in Joao Pessoa, but if you plan to join, there are a few of us here chatting about the call. --Grace Sent from my mobile device

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #67 - 13 November
by Brenda Brewer Nov. 13, 2015

Nov. 13, 2015

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #67 - 13 November will be available here: https://community.icann.org/x/g7VYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM - Ask for volunteers on list - Staff to draft email. 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. Opening remarks There are two areas where consensus still needs to be reached. Remarks that we should publish an executive summary without addressing these. There was also public comment that we should extend public comment. We clarified that outstanding items would be moved out of the summary but that we would still proceed with the publication. We agreed that we would produce a shorter document that summarizes and explains recommendations in plain language. Document reflects plethora of comments and concerns from CCWG-ACCT and Advisors. We will not create impression that final summary of report. We will not discuss timeline today. We suggest continue our work to have closure on outstanding items. Mission, Core Values & Commitments There has been consensus with respect to proposition that ICANN has limited mission. It was our goal to carefully clarify mission with respect to names, numbers, protocols and root server. With respect to name function specifically there has been agreement that ICANN has a specific mission and act within and consistent with that mission. ICANN should not seek to regulate areas that are outside of its mission. Consensus that ICANN should have ability to enter into negotiated agreements with contracted parties - these should be enforceable and ICANN should have ability to impose certain policies on contracted parties in limited circumstances as it always has. We agreed on a concept that ICANN should not regulate services. At high level there has been consensus with respect to that concept. There has also been a robust debate about the terms that are used, the potential for unintended consequences to reach shared vocabulary with respect to what we need. Shared vocabulary has been focused on what the term "regulates" mean and could that be interpreted. A question about what we mean about "services" in unique identifiers. A concern has been expressed that ICANN does enter into contract and ICANN should have ability to enter into these contracts and enforce them in furtherance of their mission. We have had continued debate on how that concept is articulated. Debate on wording has continued. Proposed language to help reach closure Focus on content, not wordsmithing. It is a concept more than language. Feedback: - There seems to be divergence in what was meant by services. Two divergent threads: 1) class of businesses that offer services ; 2) technical process that is connected to the Internet and uses the DNS. A process that runs on a web server. Two threads/dimensions that are not reconcilable. Is there a third component? Has the term not been accurately described? - ALAC expressed concern that explicit exclusion note needed that identifiers are not deemed to be content for the purpose of this mission - ICANN has enumerated powers. --> Correct. Definition of services is only item that we need to close on. - Difficult to define service as broad term. We should not define but describe - Every computer connected to the Internet CONCLUSION: Comfort with general direction of Greg's proposed language (date 12 November). Tweaks might be needed to ensure it is technologically neutral. We are not referring to class of businesses but rather technical processes. We are looking for neutral language. We could have examples of technology to illustrate what we mean by the definition. Stress Test 18 Status Quo and Way Forward There has been long history of debates on stress test 18. We need to acknowledge contributions from Work Party in trying to adjust various positions on this topic. Rationale is now clarified. Brazil has introduced a proposal. Discussions took place during IGF. We need to reach a decision on this topic. Way forward: Convene a subgroup to assess current options, areas of agreement/disagreement so the CCWG-ACCT can be provided with clear list of options for discussion. Set up small group to prepare clear, comprehensive document. Feedback: - GAC has expectations that his concerns are reflected in the third report. GAC consensus input to the CCWG via communiqué should be part of solution on ST18. Build on language proposed by Brazil. - Issues are more around drafting. Unsure a drafting subgroup will help much - Brazil proposal has been made with intention to translate it into Bylaws language. Considerations have been based on consensus. All governments agreed to that language. It was found to be acceptable. GAC communique specifies that GAC members would continue to work within CCWG. Volunteers: Steve DelBianco, Megan Richards, Brett Schaefer, Jorge Cancio, Greg Shatan ACTION ITEM - Ask for volunteers on list - Staff to draft email. Summary Document We have tried to avoid duplication in first version. Comments needed by 17:00 UTC TODAY - No line edits will be taken into account. We are looking for content related comments (misrepresentation etc). <http://mm.icann.org/pipermail/accountability-cross-community/2015-November/…> http://mm.icann.org/pipermail/accountability-cross-community/2015-November/…

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FW: AGENDA - CCWG MEETING #67 - Friday, 13 November | 06:00 UTC
by Brenda Brewer Nov. 12, 2015

Nov. 12, 2015

(correcting my err stating Tuesday) call is Friday, 13 November!! Dear all, In anticipation of your <https://community.icann.org/x/g7VYAw> call #67 - Friday, 13 November from 06:00-08:00 UTC (time converter), <http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&… ah=2> please find below a proposed agenda: 1. Welcome, Roll Call, SoI 2. Opening remarks 3. Summary Document Review 4. Mission, Core Values & Commitments 5. Stress Test 18 Status Quo and Way Forward Adobe Connect: <https://icann.adobeconnect.com/accountability/> https://icann.adobeconnect.com/accountability/ Thank you. Kind regards, CCWG Staff

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AGENDA - CCWG MEETING #67 - 13 November | 06:00 UTC
by Brenda Brewer Nov. 12, 2015

Nov. 12, 2015

Dear all, In anticipation of your <https://community.icann.org/x/g7VYAw> call #67 - Tuesday, 13 November from 06:00-08:00 UTC (time converter), <http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&… ah=2> please find below a proposed agenda: 1. Welcome, Roll Call, SoI 2. Opening remarks 3. Summary Document Review 4. Mission, Core Values & Commitments 5. Stress Test 18 Status Quo and Way Forward Adobe Connect: <https://icann.adobeconnect.com/accountability/> https://icann.adobeconnect.com/accountability/ Thank you. Kind regards, CCWG Staff

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Status of summary document
by Mathieu Weill Nov. 12, 2015

Nov. 12, 2015

Dear Colleagues, The activity on the list has been very intense lately. As co-chairs we would like to warmly thank all commenters on the recent documents. The feedbacks were extremely helpful, whether on substance or format, and our support team is working hard to take your feedback in account for the updated version. You will remember that a lot of concerns were raised that what the CCWG is working on is difficult to understand for those who are not following the groups intense work. In response to that, we have discussed and agreed we would publish a document explaining in plain language what we are doing. We have factored this into the agreed plan. At the time, we had expected to having reached consensus on all remaining questions. As this is not the case today, we suggest flagging this accordingly and move forward with the publication of the document, which we would call a *Formal Update on our progress in and after the Dublin meeting*, rather than an executive summary. Many of you have correctly stated that the document we shared with you is not an executive summary due to its length. It is rather a short version of our report without offering information on the rationale for decisions and the genesis of our recommendation. This level of detail will be found in our report. We have, however, added a 2 page abstract in addition to incorporating a plethora of your suggestions to make this document accurate, more accessible and shorter. To be clear: The document that we are planning to issue on Nov 15 is designed to update the community on the progress we have made during and after ICANN 54. Its goal is to raise awareness of where we are, what our proposals are, so that outreach can start and consideration of our final report (announced for Nov 30th) can take place in a shorter time frame. While the content of the document would reflect the positions of our group, closing outstanding issues is not a requirement before issuing this formal update. Outstanding issues will be flagged as such. What is needed is a high level summary, as well as some level of detail regarding the topics we made progress on in Dublin : decision making, sole designator model, budget, individual director removal, and human rights. Our public comment period will then focus on soliciting feedback on these changes in order to avoid the duplication of efforts for commenters on areas of our report that already enjoyed broad support. With the full report, we will offer the opportunity to publish minority statements. We do hope that you find these clarifications and suggestions helpful. We will circulate the next version of the Update within the next 12 hours, and the discussion of the document will be on the agenda of our call on Friday 13 November, at 6.00 UTC. Many thanks again to all of you for your continued commitment. Thomas, Leon and Mathieu Co-chairs _____

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comments on draft summary
by Robin Gross Nov. 12, 2015

Nov. 12, 2015

In addition to the comments on the text provided by Brett and Tatiana, with which I separately voiced my agreement, I'd offer the following comments on the draft summary just released: I. p.4-5 "The CCWG-Accountability is not recommending that any changes or alterations be made to ... the advisory role of the GAC..." This statement is simply false. We ARE in fact proposing a big change - in that we are offering a decision making role to GAC on the community powers. I understand the desire to make the claim otherwise, but we are simply misleading the public to say that at the beginning of the report no changes to GAC's advisory role are recommended, but in the details to come out later, we learn we are providing GAC a decision making role on key issues. We should be honest and admit that is what we are doing and provide the rationale for it (if we believe it is worth doing). But simply to claim we aren't proposing a change in GAC's advisory role, when we are in fact proposing a major change of GAC's role to decision making is shamefully misleading on our part. II. p. 18 and 20 - The process can only be used once for removing an individual director. We need to specify at what stage does that "once" count. I think the right place for that "once" to count is at the stage of community forum deliberations. I don't think we are saying there can only be a single petition (stage 1) to remove an individual board member because that could be filed with little merit and go no where, and then the community would lose its opportunity to use that power when a legitimate need to exercise it comes along. It could even be used to "game" the process, by intentionally filing bogus petitions to eliminate the power in a legitimate case. III. p.34 on reconsideration process. Current wording of draft, which is unclear what is meant: * Focusing on having the ICANN Ombudsman performing the initial assessments of Reconsideration Requests in relation to ICANN’s Legal Department. Proposed change to clarify what is meant (red text): * Focusing on having the ICANN Ombudsman performing the initial assessments of Reconsideration Requests instead of ICANN’s Legal Department. Thanks, Robin

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Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract
by David Post Nov. 12, 2015

Nov. 12, 2015

Milton Maybe I haven't been clear enough about what I'm trying to say, but I think you're exaggerating our differences. You write: >MM Please retract your statement that we don't need a clear and >explicit limitation on ICANN's mission. I would never have suggested this, so there's nothing to retract. OF COURSE we need a clear and explicit limitation on ICANN's mission. That's not where we disagree. My position is: we already HAVE a clear and explicit limitation on ICANN's mission: it's in the Mission Statement, and in ICANN's obligation not to act outside the Mission Statement. You say: >MM: The whole point of this exercise is to make sure that ICANN >doesn't use its leverage over domain name registration services to >extend its regulation into everything else on the internet. I have been taking that position for about 100 years, and I continue to agree with you on that, too - wholeheartedly. You say: >MM: All the definitions are intended to make the distinction >between the services ICANN can regulate and those it can't. If the >definitions or wording don't work, make them work, don't tell us we >don't need the limitation. The problem is how to capture the distinction between "the services ICANN can regulate and those it can't" in a way that doesn't do more harm than good. Again: I think the Mission Statement makes this distinction already. ICANN can regulate only those services where it can show that "uniform or coordinated resolution" of how those services operate is "reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," and that the "regulation" being applied has been "developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." So I start from the position that we don't "need" to add this as an affirmative limitation, because it's already in there, and because saying the same thing using different words usually just leads to confusion. As I see things, we have: a requirement that ICANN act only in accordance with its Mission; a limiting statement that "Without limiting the foregoing absolute prohibition, ICANN shall not regulate the content carried or provided by services that use the Internet's unique identifiers, ." One thing that perhaps we could add would be something like: ". . . nor shall ICANN have the ability to negotiate, enter into, or enforce agreements with contracted parties other than in service of its Mission." Do you think that works ? David At 05:37 AM 11/12/2015, Mueller, Milton L wrote: >David > >You perhaps more than anyone else in the world have emphasized how >control of the root might allow someone to do just that. And yet, >as we are engaged in a historic attempt to create a constitutional >limitation on ICANN that would prevent that, and as the LEAs and IPR >lawyers realized that and are trying to kill that attempt, you >inexplicably come out on the wrong side at the most damaging >possible time. PLEASE get on board with us and help us get this >limitation in place. > >I think you are getting hung up on the fact that registry and >registrar services are services. Of course they are and that is what >ICANN regulates. The whole point of this exercise is to make sure >that ICANN doesn't use its leverage over domain name registration >services to extend its regulation into everything else on the >internet. All the definitions are intended to make the distinction >between the services ICANN can regulate and those it can't. If the >definitions or wording don't work, make them work, don't tell us we >don't need the limitation. > >I really can't say anything more on this, I am just hugely >disappointed. Please retract your statement that we don't need a >clear and explicit limitation on ICANN's mission. > > > > -----Original Message----- > > From: David Post [mailto:david.g.post@gmail.com] > > Sent: Wednesday, November 11, 2015 6:08 PM > > To: Mueller, Milton L <milton(a)gatech.edu> > > Cc: 'Accountability Community' <accountability-cross-community(a)icann.org> > > Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding > > Mission and Contract > > > > At 04:42 PM 11/11/2015, Mueller, Milton L wrote: > > > > >Thank you David for clarifying your position, which is that you do NOT > > >support deleting both statements and DO want to keep a clear > > >affirmative restriction in place. You have proposed to modify the > > >wording of the restriction in the following manner: > > > > > >DP: "Without limiting the foregoing absolute prohibition, ICANN shall > > >not regulate the content carried or provided by services that use the > > >Internet's unique identifiers." > > >Doesn't that do the job? > > > > > >MM: Possibly. It depends on whether regulating content also means > > >regulating the type or nature of the service provided. If content was > > >interpreted broadly I could accept this formulation > > > > Milton - I don't think we're that far apart in this, and I don't > want to beat a > > dead horse - but just to clarify my own position. > > > > But it's not entirely up to me, of course - and, obviously, many > others feel > > strongly, with you and Paul, that some sort of "clear affirmative > restriction" > > specifying what ICANN CANNOT do needs to be put in place. I'm > saying I don't > > object to that, though it's not the direction I would go. > > > > If there is going to be some affirmative restriction language,it > needs to be > > clear and unambiguous - otherwise, it is likely to do more harm > than good, in > > my opinion; because it will have to be somehow reconciled with the Mission > > statement, it has the potential to muddy up interpretation of the Mission > > statement itself. > > > > My problem with the "regulation clause" language is primarily with the > > formulation that "ICANN shall not regulate services that use the Internet's > > unique identifiers," because it seems to me that, under a > perfectly reasonable > > reading of that language, that is exactly what ICANN does do - it > promulgates > > and enforces rules for registries and registrars, who provide > "services that use > > the Internet's unique identifiers." I don't know how we would expect > > someone (the IRP) to understand what it is we're trying to get > at, with that > > language, and it will just lead to all sorts of interpretive mischief. > > > > Which leaves the prohibition against "regulating the content carried or > > provided by services that use the Internet's unique > identifiers." You write: > > >MM: Possibly. It depends on whether regulating content also means > > >regulating the type or nature of the service provided. If content was > > >interpreted broadly I could accept this formulation > > > > The problem, though, is that we have to decide to accept or reject the > > formulation before we know how it's going to be interpreted. I'm > not sure I > > know how you would want to make "content" as broad as you would like it to > > be. > > > > David > > > > ******************************* > > 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 > > ******************************* ******************************* 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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