November 2015 - Accountability-Cross-Community

House Report on DOTCOM Act
by Greg Shatan Nov. 28, 2015

Nov. 28, 2015

All, The US House of Representatives just issued HR 114-175 on the DOTCOM Act. I have not yet read it, but at a glance it certainly appears relevant to our work. A PDF is attached. An article discussing the report is here: http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument… Greg

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For information: example of community interaction during the planning process - Dublin's planning workshop
by Xavier J. Calvez Nov. 27, 2015

Nov. 27, 2015

To illustrate a number of comments made in the past weeks/months on the positive developments of community input/interaction mechanisms embedded over the past 2 years into ICANN's planning process, you can find attached an example of communication on the workshop that was held on Sunday night 18 October in Dublin, with the active participation of 15 community members, including remotely, and 4 board members from the Finance Committee. This workshop is the second one held (the 1st was in Singapore at ICANN 52), and is confirming to be a valuable exercise of interactive exchange, allowing for direct input that can effectively be taken into account. We will definitely repeat such workshop experience and welcome further participation to them. This is an open type of interaction, there is no set requirement for participation. It is helpful that participants have a basic knowledge of ICANN's planning process or another organization's planning process, in order to have a more effective participation, but participating to these workshops is also a good way to catch up. The email attached is addressed to a list of participants that has been built over the past 3 years, by adding anyone interested in the planning process to it. We use the list to send materials, notifications of upcoming milestones, invitations to webinars, and feedback after workshops or webinars. There is no limitation of any kind to be added to this distribution list and we invite anyone interested to provide my team or I with an email address to be added. Being on the list does not create any specific work requirement, but simply allows to participate if desired. I am happy to answer any questions on this or any aspect of the planning process. Thank you. Best, Xavier Xavier Calvez CFO ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094 Office: +1 (310) 301-5838 Fax: +1 (310) 957-2348 Cell: +1 (805) 312-0052

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Re: [CCWG-ACCT] IRP implementation oversight team EIO
by David Post Nov. 27, 2015

Nov. 27, 2015

Brenda [all] I too would like to be on this team - having worked on this problem since the IRP was first proposed as ICANN was being formed, I'm pretty familiar with the issues and the challenges involved. Like Robin, I'm an attorney (though not licensed in CA). David At 06:20 PM 11/24/2015, Brenda Brewer wrote: >Dear all, > >Forwarding this Expression of Interest to the full list for the >record on behalf of Robin Gross. > >Thank you, >Brenda > > >I would like to participate on the IRP implementation oversight >team. I have been an active participant in the CCWG Working Party >2, which devised the new IRP, so have a decent understanding of what >is called for in its subsequent implementation. I am also an >attorney, licensed in the state of California for 16 years with >significant experience in dispute resolution procedures. Thank you. > >Best, >Robin Gross > > > > >_______________________________________________ >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] ST18 breathrough text
by Steve DelBianco Nov. 26, 2015

Nov. 26, 2015

Agree, Matheiu. You’ve got it all in one sentence so there’s no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 full GAC consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board, and 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. The GAC has the autonomy to refine its Operating Procedures to specify how objections are raised and considered (for example, disallowing a single country to continue an objection on the same issue if no other countries will join in an objection). When transmitting consensus advice to the Board for which the GAC seeks to receive special consideration, the GAC has the obligation to confirm the lack of any formal objection. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "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: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such “Any GAC advice approved by a full GAC consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board, and 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.” Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. 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 Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here’s what we need in the 3rd report: Article XI, Section 2, 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 full GAC consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. The GAC has the autonomy to refine its Operating Procedures to specify how objections are raised and considered (for example, disallowing a single country to continue an objection on the same issue if no other countries will join in an objection). When transmitting consensus advice to the Board for which the GAC seeks to receive special consideration, the GAC has the obligation to confirm the lack of any formal objection.

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TR: ST18 breathrough text
by Mathieu Weill Nov. 26, 2015

Nov. 26, 2015

Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here’s what we need in the 3rd report: Article XI, Section 2, 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 full GAC consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. The GAC has the autonomy to refine its Operating Procedures to specify how objections are raised and considered (for example, disallowing a single country to continue an objection on the same issue if no other countries will join in an objection). When transmitting consensus advice to the Board for which the GAC seeks to receive special consideration, the GAC has the obligation to confirm the lack of any formal objection.

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Confirm language regarding string as content
by Burr, Becky Nov. 26, 2015

Nov. 26, 2015

The Mission Statement language that I circulated tester permits ICANN to take into account "the semantic meaning of domain names.” Andrew Sullivan has proposed that the language reference taking into account "the use of domain names as identifiers in various natural language.” I indicated that I was fine with Andrew’s tweak – will make that substitution in the text unless folks respond to the contrary! 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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NTIA Statement on ST 18
by Radell, Suzanne Nov. 26, 2015

Nov. 26, 2015

Hello everyone, Assistant Secretary Strickling has asked that I share this with the CCWG. Best regards, Suz NTIA Statement on Stress Test 18 November 25, 2015 NTIA has been closely following the discussions in the CCWG-Accountability, including the recently concluded small group on stress test 18. As has been the case throughout the work of the CCWG, we are impressed by the time and dedication so many of you are putting into these important discussions. We thank everyone for their efforts as the group works to finalize the proposal for publication on November 30. NTIA has long believed that governments, like all stakeholders, have an important role to play within multistakeholder processes, including ICANN. Our position on that has not changed. As the CCWG finalizes its proposals for enhancing ICANN's accountability, we feel we should reiterate our view, as we stated last July, that ICANN preserve and clarify the current practice of the Board in responding to advice it receives from the Governmental Advisory Committee (GAC). Specifically, ICANN should amend its Bylaws to clarify that the Board is required to enter into a formal consultation process with the GAC only where it receives GAC advice that is consensus advice based on the current definition within the GAC's Operating Principles, that is, advice to which no GAC member has raised a formal objection. We want to make clear that nothing about this proposal is intended to limit how the GAC determines what advice it submits to the Board. As the Bylaws make clear, the Board is obligated to duly take all GAC advice into account. However, it is not practicable for the Board to give GAC advice special consideration unless it is consensus advice as currently defined in the GAC Operating Principles. Anything less than consensus places the Board in the awkward, if not impossible, position of trying to choose between governments with conflicting opinions. NTIA sees any deviation from the current standard of consensus as introducing instability into the system while also inadvertently diminishing the important role of governments. Accordingly, every time the GAC provides consensus advice that it expects to trigger the special Bylaws consideration from the Board, it must be unambiguous and consistent with the current definition in the Operating Principles. Asking the Board to interpret any other threshold of support seems counter to the spirit of the CCWG's efforts to empower the community in a clear and consistent manner. It also undermines the work done to implement the relevant recommendations of ATRT1 to fix what the community diagnosed as a dysfunctional Board-GAC relationship. We are aware that some countries are concerned that the current GAC Operating Principles could lead to a single-country veto of GAC advice to the detriment of other countries. We too share that concern. But the right place to deal with that issue is not at the last minute in the CCWG but in a more reasoned and full discussion of this issue within the GAC. NTIA stands ready to participate in and contribute to such a discussion to resolve that concern at the appropriate time and place. Suzanne Murray Radell Senior Policy Advisor, NTIA/OIA sradell(a)ntia.doc.gov 202-482-3167

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final language of Mission showing "in service of" language
by Burr, Becky Nov. 26, 2015

Nov. 26, 2015

Staff – please make sure this is the version that is used 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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Update on Board discussions on the CCWG Update
by Bruce Tonkin Nov. 26, 2015

Nov. 26, 2015

Hello All, As noted last week, the Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015. The Board is preparing for the Public Comment period on the Third Draft Proposal, and intends to submit its comments on the Third Draft Proposal by mid-December. The Board thought it may be useful to share some initial comments based on the information in the CCWG Update. For ease of reference, the page number in the Update Document has been included for each item below. . Human Rights (pages 25-26) The Board is committed to upholding human rights as appropriate within its limited Mission and scope of responsibilities. We appreciate the community's interest in reflecting human rights in the ICANN Bylaws, but we remain concerned that the placement of such language into the Bylaws requires full consideration of the impact of that language across all of ICANN's activities. We note that a potential approach is for a group to develop a Framework of Interpretation as part of Work Steam 2. It is important that this topic has comprehensive community discussion, including impact on policy development and identification of how those developing policy recommendations should consider human rights within their work, as well as any implications such as on ccTLD re-delegations. Any final formulation of human rights must not extend ICANN's limited mission and scope of responsibilities. . Inspection Rights and Transparency (page 12) The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency, including a review of the DIDP and assessment of what additional information (such as financial information) should be made publicly available, is an item for further work. In the Board's view, prior to the development of an inspection right, consideration should be given to what sort of information is expected to be requested, for what purpose and by whom. Further, to address the concerns over increased financial transparency, the Board will be proposing a methodology during the upcoming public comment period through which an independent audit can be initiated, and has instructed staff to start considering how additional financial transparency can be achieved. . Removal of the Board (individual/entire) (pages 21-23) The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter. Additionally, the Board strongly believes the threshold for the removal of the entire board should not go below a total of four SOs and ACs in support of removal. . Board Consideration of GAC advice (page 34) The Board will continue to monitor the discussions. We note that any solution should include a provision that, in the event of the rejection of GAC advice, the Board is only required to enter into a formal consultation process where the GAC advice is consensus advice based on the current definition within the GAC's Operating Procedures (which relies on the UN definition of consensus). The Board values receipt of consensus advice as reflected in the current GAC Operating Procedures. Since the first ATRT, there has been a lot of effort made to clarify what "GAC Advice" means and does not mean within GAC Communiqués. Care should be taken not to introduce language into the Bylaws that reduces that clarity and returns the Board to a position of having to negotiate among various positions in its consultation processes. . Sole Designator Model (page 11) The Board supports the Sole Designator model with the understanding that limited powers of appointment, removal and enforcement are maintained as the guiding principles for this model. . AoC Reviews and Implementation Factors (page 31) The Board appreciates the work to incorporate the AOC reviews into the Bylaws and reiterates as a principle that operational/administrative details not be inserted into the Bylaws, in favor of defined standards for such reviews that can be changed (with community participation) through processes that do not require Bylaws changes. . Community Decision-Making Power (page 12) The Board believes it is important that the Community Decision Making Power has appropriate thresholds that are defined in ways that reflect a community decision, and are flexible enough to allow entrance (or exit) of existing or new SOs or ACs. Regards, Bruce Tonkin ICANN Board Liaison to the CCWG

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ST18 Way forward
by Mathieu Weill Nov. 25, 2015

Nov. 25, 2015

Dear Colleagues, During our call on Tuesday, we had an intense discussion regarding the way forward regarding ST18. The conclusion was that, after taking the temperature of the room, the co chairs would confer to assess consensus. It is our assessment that the compromise proposals did not meet the consensus standards defined in our Charter. As a consequence, the logical way forward is to keep the 2nd report recommendation as part of our Draft Report. Attached is a draft (unedited and unformatted at this point) annex detailing the recommendation, which is based on the 2nd report and incorporates some comments and conclusions from the ST18 subgroup which was indeed extremely useful in clarifying expectations around that issue, although the proposals themselves could not be agreed upon. Thank you all for your continued efforts, and talk to you on our next call in 18 hours. Thomas, Leon & Mathieu

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