November 2015 - Accountability-Cross-Community

CCWG - Executive Summary
by Bernard Turcotte Nov. 12, 2015

Nov. 12, 2015

All, Please find attached the first full draft of the executive summary which will be discussed on the call tomorrow. Apologies for the delay in getting this out but people have been working almost around the clock. Bernard Turcotte Staff Support for the co-chairs.

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Implications of bottom-up "policy" requirement
by Alan Greenberg Nov. 12, 2015

Nov. 12, 2015

I am increasingly becoming uneasy with the implications of several of our proposed changes/powers. I would be happy to be convinced that I am missing something and there is no need to be concerned. The particular interaction that I am thinking of is: - the new requirement that "policies" be developed through a bottom-up multistakeholder process; - the fact that we never really define "policy" and therefore what is a policy is subject to interpretation; - we have contracts which are made up of a combination of historical language, negotiated terms, Consensus Policy and yes, terms which at some point in time may have been included through more arcane processes; - some issues which could reasonably considered "policy", such as PICs in registry agreements, according to the Registry agreement Spec 1, are NOT SUBJECT to Consensus Policy; - most contractual provisions are also outside of the limited subjects in Spec 1 (Registry) / Spec 4 (Registrar); - The IRP which can judge something to be outside of ICANN's mission; When you put these together, we have the situation that an IRP could judge that some contractual provision is "policy", was not developed through a bottom-up MS process, and therefore violates the Bylaws. Yet such terms are not eligible for a bottom-up MS process, or predate such processes. I find this EXTREMELY problematic. Alan

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #66 - 10 November
by Brenda Brewer Nov. 12, 2015

Nov. 12, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT meeting #66 - 10 November will be available here: https://community.icann.org/x/yLJYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items * ACTION ITEM - Define areas of consensus on this. * ACTION ITEM: Becky to write up language to include confirmed areas and discuss outstanding items on Friday * ACTION ITEM - Provide comments on executive summary by closed of business today. Comments should be submitted via email. Comments should not address wordsmithing. * ACTION ITEM - Jordan to send language on Fundamental Bylaws on list 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 - We are due to deliver first set of deliverables for public comment by Sunday. We need to close outstanding items - Extra call planned for Friday at 06:00-08:00 UTC to wrap up conclusions - Important to stay focused on discussion how writing is consistent with requirements instead of focusing on wordsmithing Revised Mission, Core Values & Commitments Agreement on notion and consistency with requirements is needed. ICANN should not use contracting authority to regulate behavior downstream in ways that are not within mission. ICANN should limit obligations to goals that within mission. We are having problems with word "regulate". Voluntary public interest commitments is an example of concern. Would prohibition on regulation get in the way? Post Dublin language - it is language intended to inform work to be undertaken by drafters. - Language on contract not constituting regulation - Language to enable or facilitate reachability over Internet nor shall it regulate - On Malcolm's language, suggestion so strike "strictly". Use "shall not regulate services". We don't have clarity of what services means. Consensus policy is outside of prohibition. Without in any way limiting the foregoing, ICANN shall not regulate services (i.e. those offered by web servers, mail servers and the like)that use the Internet's unique identifiers or the content that those services carry or provide. The prohibition on regulation of services that use the Internet's unique identifiers or the content that they carry or provide does not act as a restraint on ICANN's authority to negotiate, enter into and enforce agreements. Consensus Policy, as defined in "Consensus Policies and Temporary Policies Specification" in the 2013 Registrar Accreditation Agreement, is outside of such prohibition. --> Concern in public comment that this language can be interpreted as preventing ICANN from enforcing contract. Suggestion to proceed initial language with addition of sentence to address public concern. ICANN should not use contracting authority to regulate content and behavior of DNS registrants. - Clarify that ICANN is not using authority with respect to registries and registrars to regulate registrants. - Intent is to not influence how registrars deal with registrants - Point of confusion: we have not articulated in a granular way what we mean by ICANN shouldn't use its authority to regulate registrants' behavior. - Try to take stock of agreement within our group i.e. want to avoid ICANN making regulation AGREEMENT: - ICANN should stay within its articulated and limited mission. - In furthering its mission, ICANN has ability to enter into and enforce contract with registries and registrars - Specification 1 in registry agreement and specification 4 RAA as they are currently written include description of consensus policy that is within ICANN's mission. --> Concerns: specification 1 unclear for some. - ICANN should have ability to impose obilgations exceeding mission except for voluntary commitments. - ICANN should not use its contract with registries and registrars to regulate registrant behavior with regards to subjects that are outside of ICANN's mission as defined in the picket fence DISAGREEMENT: - Should ICANN have the ability to enter into and enforce volunteer contractual commitments that registry applicant has voluntary provided. ICANN must have ability ACTION ITEM - Define areas of consensus on this. Define what ICANN can do and not what it can't do and delineate areas of agreement. ACTION ITEM: Becky to write up language to include confirmed areas and discuss outstanding items on Friday Executive Summary ACTION ITEM - Provide comments on executive summary by closed of business today. Comments should be submitted via email. Comments should not address wordsmithing. Summary is designed for those who are not deeply involved in this. It has to be representative of our work and readable * * Is the content clear and does it represent our point of view? * If so, is there any way it can be more clear? * If not, how can we make this more clear and simple? * What isn't being communicated? * If the visual doesn't work for you, please say why, and also provide input, information or solutions so we can make it better. Feedback: - Term Designator will source of confusion --> We need to discuss branding. Would empowered community be more apprrppriate? - Suggestion to use "Empowered Community" - On Fundamental Bylaws, escalation process should not apply here. There should not be petition step. Approval has to happen as part of process. Keep conference call and potentially community forum but no petition step. It's a co-approval process. - What is official status of model? --> Sole Designator model is our model of reference. We should talk about empowered community. Designator is only term we can use in legal context CONCLUSION Comments will be needed by November 10th - 23:59 UTC on mailing list to enable us to make changes in time. This applies to feedback from lawyers and advisors. Focus on messaging, not wording. We have agreed to refine Fundamental Bylaws process and to use "Empowered Community" instead of "Designator Model" ACTION ITEM - Jordan to send language on Fundamental Bylaws on list Budget Xavier is working on framework for defining caretaker budget. Writing Team has summarized budget process. we have resolved all issues that were raised in public comment process. CONCLUSION: Agreement on budget IRP Implementation Oversight Call for volunteers to join oversight Team. This Team would be tasked to oversee lawyers work with regards to drafting of Bylaws, rules of procedures, selection of panelists etc. We are looking for 5-7 volunteers. Skill-based assignments. We encourage Omnudsman and representaton from ICANN Legal department to join this effort.This group would provide guidance to lawyers and oversee drafting. Any outcomes would go to full CCWG for discussion. Becky Burr has volunteered for this group. AOB - none

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Outstanding issues on executive summary
by Seun Ojedeji Nov. 12, 2015

Nov. 12, 2015

Dear Co-Chairs, I believe it may be helpful at this point to know whether there are outstanding issues yet to be covered in the executive summary. Considering all that have been said on the list so far, may I request that you kindly provide bullet points of what you have observed to be lacking on the effective summary and suggest way of addressing it within the timeline of 15th November. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

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Regharding processes for creating or changing fundamental bylaws
by Bruce Tonkin Nov. 12, 2015

Nov. 12, 2015

Hello All, Just picking up on the post from Tijani. >> I think for the Fundamental Bylaws modification, the Board (or the community) proposes the modification In case the community proposes the modification It should go through the escalation process we described for the other powers to trigger the modification process, consult about its pertinence, formulate the proposal and then decide to submit the proposal, but perhaps with other thresholds then, and if the board accepts the proposal, it will put it to public comment In case the Board is the trigger of the modification, the community should go through the escalation process to approve or reject the proposal. Practically for the creation or change of fundamental bylaws, I expect the Board would run the following process: - post the proposed bylaw or change to existing bylaw for public comment - seek direct input from each SO and AC on whether they support that change - only approve the change if there is the relevant level of support from the SOs and ACs I understand that the community power could be an escalation if somehow the Board approves a change without first getting input from the SOs and ACs - but I think that situation will be highly unlikely. Board approval is usually a final step - and essentially the Board approves when it is convinced there is a consensus in the community for the change. Also as I have noted before - it is rare if ever (I can't recall a case) that the Board ever initiates a bylaw change on its own. The change has usually come as a result of a community process - e.g. a policy recommendation from a SO, a recommendation from a cross-community working group, a recommendation from an AoC review team, or a recommendation from one of our other organizational reviews. Regards, Bruce Tonkin

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Re: [CCWG-ACCT] Adler & Colvin Comments on Executive Summary Draft
by Rosemary E. Fei Nov. 12, 2015

Nov. 12, 2015

Dear Co-Chairs: Adler & Colvin’s comments on the Executive Summary are attached; our apologies for missing the deadline (by 110 minutes). As Holly noted, these comments have not been reviewed by or coordinated with Sidley. Similarly, we have not had time to go back through proposals, emails, and meeting notes to confirm our recollection of how various decisions have been made to date, so some comments may reflect the wrong understanding and should be ignored. The mark-up includes both some line edits, and comments in bubbles. We attach a PDF, to ensure the comment bubbles will be visible regardless of users’ software. We agree with Sidley’s overall comments on length and duplication, and more substantively on how particular community powers will be exercised. Given that this is an Executive Summary, you might consider presenting a single full escalation pathway as an illustration only, and then note that the paths will vary as appropriate for the exercise of other community powers. A chart comparing escalation pathways across powers and noting the differing required thresholds for approval at each stage by power, might be more useful to understanding than the separate detailed descriptions of each escalation path provided in this draft. Please let us know how we may assist you further. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com www.adlercolvin.com _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com>> Date: Tuesday 10 November 2015 at 8:37 p.m. To: "mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>" <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>>, "thomas(a)rickert.net<mailto:thomas@rickert.net>" <thomas(a)rickert.net<mailto:thomas@rickert.net>>, "leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>> Cc: Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com<mailto:sidleyicannccwg@sidley.com>>, "ACCT-Staff (acct-staff(a)icann.org<mailto:acct-staff@icann.org>)" <acct-staff(a)icann.org<mailto:acct-staff@icann.org>>, "ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com>" <ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com>>, Accountability Cross Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Sidley Comments on Executive Summary Draft Dear Co-Chairs and CCWG, Attached please find Sidley’s comments on the draft Executive Summary. Given the very short window for review we have not had time to coordinate our comments with the Adler firm and apologize for that. Adler will be sending their comments separately. Please note also that given the very short time frame we have not been able to go back and check against the transcripts of the various meetings and therefore are relying on memory for our understanding of where the CCWG has formed consensus (or near consensus) on various issues. Overall we find the Executive Summary overly long with significant redundancies. We think it would benefit from a thorough edit by your professional writers. We also believe that the summary is inaccurate in its description of the community processes with respect to the decisions to: (1) remove individual directors and (2) approve Fundamental Bylaws. (We agree with Jordan’s comments on the Fundamental Bylaws.) We also recommend that a more pointed discussion of the CWG dependencies be added so that the reader can understand the broader context in which the Proposal has been developed. We have also edited errors in the description of the legal framework that applies. We have noted these comments in the draft. Please let us know if you would like to discuss or if we can be of further assistance with this draft. Kind regards, Holly HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

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Public Comment Timeline Concerns -- RE: CCWG - Executive Summary
by Phil Corwin Nov. 11, 2015

Nov. 11, 2015

While others address the substance of this first full draft of the executive summary I want to get on the record my personal concerns about the timeline for public comments – including statements from and consideration by the Chartering Organizations. Yesterday I was asked by one participant in the BC whether there had been any community discussion to extend the comment period, and this is the reply I made, with special emphasis on my role as a member of the GNSO Council which is scheduled to begin consideration of draft GNSO comments regarding the 3rd draft CCWG Proposal on December 5th --- “I don’t know of any discussion yet to extend the comment period, but wouldn’t be all that surprised if there is one, given that this designator model is a major revision and deviation from the prior member model. Personally, I am not at all comfortable with the timeline, especially in my role as Councilor trying to responsibly represent the BC. While the summary report (first draft of which I just forwarded to all BC members) will be put out on November 15th, the full and detailed draft proposal won’t be out until two weeks later, on November 30th. I’ve been through enough legislative processes to know that staff-drafted summaries can never be relied upon to fully and accurately convey the language and potential ambiguities and inconsistencies in the underlying text, and that there is no substitute for its line-by-line dissection. November 30th is only three weeks prior to the December 21st deadline for public comment, which IMHO is insufficient to form and submit a fully informed comment, especially for trade associations and other groups which must consider multiple inputs. Even more worrisome, from my Councilor perspective, is that the Council is supposed to “Share draft GNSO comment on 3rd draft CCWG Proposal” on December 5th, just five days after the full text is released. As I am supposed to represent your consensus views, it means the BC has only 2-3 days to consider and discuss the full text, and that Councilors must then attempt in the short remaining time to reconcile the separate views of those they represent into a single consensus draft GNSO comment. (I do note that the Council has almost two additional weeks to massage its comment, as the target for submission is December 18th.) This timeline requires the Council to draft and submit its consensus views prior to any opportunity to review all the public comments. This is very different from the PDP process in which the Council makes final determinations only after it reviews all public comments. It also puts a large degree of pressure on those constituencies that Councilors represent to instruct us on their views long before the comment period has concluded. My life experience is that the adage haste makes waste persists for a reason. I’m not for undue delay, but I am for adequate scrutiny, and I am concerned that this timeline does not provide sufficient time for that. “ Those thoughts were further reinforced by this morning’s CCWG call, just concluded. Take for example the Mission Statement discussion, about how to limit ICANN’s ability to “regulate” use of the Internet. On page 30 of the Summary memo it says this: The CCWG-Accountability recommends clarifying ICANN’s Mission and Core Values to: • Reinforce the scope of ICANN’s organizational activities related to the Domain Name System (DNS) o ICANN is not to regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. o ICANN is to have the ability to enforce agreements with contracted parties (entities that have signed agreements with ICANN in relation to top level domain names) [Emphasis added] But as we just saw on the call, after one hour of vigorous discussion there is still no agreement on what that language should be, or even the scope of the limitation it is trying to describe (in fact, there is some rather broad disagreement on that second point). So on that key subject no one can draft an intelligent and informed comment based upon the high level summary document to be released on 11/15, and must await the full text promised for 11/30 – yet Councilors are supposed to survey those they represent and begin consideration of a draft GNSO comment by December 5th. Let’s be honest and admit that the actual period in which fully informed public comments can be developed and submitted is presently only three weeks, from November 30th to December 21st. For the Council it is even less time, as it is scheduled to consider the approval of the CCWG-Accountability 3rd CCWG Proposal Review and adoption of GNSO statement on 3rd draft CCWG Proposal on December 17th, with the Council Statement being submitted one day later on December 18th. Then Councillors are supposed to consider final documents and motions as early as two weeks after the close of the public comment period (January 4th), if the Proposal has changed in any way from the third draft put out for comment -- notwithstanding the fact that both the Christmas and New Year holidays occur within that period. And, BTW, is it realistic to think that the CCWG will be able to review all the comments and draft responsive consensus amendments in the middle of those two weeks? So I strongly question whether sufficient time has been accorded under the current timeline to review a designator proposal that differs quite substantially from the prior member model, prepare thoughtful and comprehensive comments, and make responsive adjustments and final changes based upon those public comments. I realize that there is a strong desire to complete this phase of the Accountability process as soon as possible. But I also have strong concerns that we are not providing sufficient time for review of a proposed structure that the community will have to live within for years, and likely decades. 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 Bernard Turcotte Sent: Monday, November 09, 2015 4:42 PM To: Accountability Cross Community Subject: [CCWG-ACCT] CCWG - Executive Summary All, Please find attached the first full draft of the executive summary which will be discussed on the call tomorrow. Apologies for the delay in getting this out but people have been working almost around the clock. Bernard Turcotte Staff Support for the co-chairs. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date.

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Sidley/Adler & Colvin comments on Executive Summary Draft
by Stephen Deerhake Nov. 11, 2015

Nov. 11, 2015

To the Co-chairs: Now that the lawyers have weighed in, can we stop with the bullshit now, please? And by that I mean can we stop pretending that we have to force all this to a conclusion over the next couple of weeks, put it all out for public comment without a proposal (even an Excutive Summary) for the Community to comment on, expect the SO's to pass judgement on something by year's end that (a) doesn't appear to actually be written down on paper, (b) has not had a proper public comment period, and (c) is really, really critical to the future? Do you seriously expect the SO's to sign off on this "work product" as it currently stands? There isn't even agreement on the wording of ICANN's "Mission Statement" post transition. Seriously? I echo Phil Corwin's post regarding his frustrations about the "timeline". The timeline is bunk. It is an artifical construct, being used to stifle discussion and force "pre-determined" positions into the final proposal, etc. After several months of involvement with the CCWG, I am now completely convinced that the timeline is being used to corrupt the process. This process does not have to be completed and delivered to the NTIA by a particular date. It appears to me that this timeline is in fact in place simply to insure the conclusion of the process prior to the 2016 US election and a possible outcome of that democratic process that produces an Administration that might be less favourable to the transition than we would like. The proposal should prevail on it's merits. It has to be done right. Regardless of the timeframe required. We (the Names Community) should apologise to the other parts of ICANN that have gotten their act together and come up with what they needed to for the transition -- the Names Community has a bit of a mess on our hands, and it's taking us somewhat longer to muddle through to an an acceptable proposal. And guess what? If we can't get our collective act together, the status quo will continue. It's not like the world will come to an end if we don't get SO sign off on who knows what by year's end. Stephen Deerhake sdeerhake(a)nic.as <mailto:sdeerhake@nic.as> sdeerhake(a)gdns.net <mailto:sdeerhake@gdns.net>

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Sidley Comments on Executive Summary Draft
by Gregory, Holly Nov. 11, 2015

Nov. 11, 2015

Dear Co-Chairs and CCWG, Attached please find Sidley’s comments on the draft Executive Summary. Given the very short window for review we have not had time to coordinate our comments with the Adler firm and apologize for that. Adler will be sending their comments separately. Please note also that given the very short time frame we have not been able to go back and check against the transcripts of the various meetings and therefore are relying on memory for our understanding of where the CCWG has formed consensus (or near consensus) on various issues. Overall we find the Executive Summary overly long with significant redundancies. We think it would benefit from a thorough edit by your professional writers. We also believe that the summary is inaccurate in its description of the community processes with respect to the decisions to: (1) remove individual directors and (2) approve Fundamental Bylaws. (We agree with Jordan’s comments on the Fundamental Bylaws.) We also recommend that a more pointed discussion of the CWG dependencies be added so that the reader can understand the broader context in which the Proposal has been developed. We have also edited errors in the description of the legal framework that applies. We have noted these comments in the draft. Please let us know if you would like to discuss or if we can be of further assistance with this draft. Kind regards, Holly HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

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Fwd: Updated Memo on Request on Sole Designator
by Jordan Carter Nov. 11, 2015

Nov. 11, 2015

Dear all - for your reading pleasure and for the lists record. Jordan ---------- Forwarded message ---------- From: Gregory, Holly <holly.gregory(a)sidley.com> Date: 7 November 2015 at 13:48 Subject: Updated Memo on Request on Sole Designator Dear Co-Chairs, Jordan and Staff, Attached please find a substantially reorganized and revised memo on how the Sole Designator would be made operational, to replace the memo that was sent to you last week. The changes are largely in the nature of clarifications and we have addressed the point requested below as well. We request that this memo be posted to replace the prior memo. Please let us know if you have any questions. Kind regards, Holly and Rosemary

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