November 2015 - Accountability-Cross-Community

Mission/Contract
by Burr, Becky Nov. 10, 2015

Nov. 10, 2015

All - In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide." While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.). The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours! 2nd Draft Report Language Post-Dublin Language Greg Shatan Proposal 2 Nov 2015 Malcolm Hutty Proposal 6 Nov 2015 ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide. ICANN shall have no power to act strictly other than in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation. In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission. subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars 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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AGENDA - CCWG MEETING #66
by Brenda Brewer Nov. 10, 2015

Nov. 10, 2015

Dear all, In anticipation of your call #6 <https://community.icann.org/x/yLJYAw> 6 - Tuesday, 10 November from 12:00-14:00 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. Reach conclusion on outstanding questions relating to Revised Mission, Core Values & Commitments 3. Executive summary produced by writers 4. Power to reject budget and strategic/operating plans document produced by writers 5. IRP implementation oversight 6. A.O.B Adobe Connect: <https://icann.adobeconnect.com/accountability/> https://icann.adobeconnect.com/accountability/ Thank you. Kind regards, CCWG Staff

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Re: [CCWG-ACCT] CCWG - Executive Summary
by Alan Greenberg Nov. 10, 2015

Nov. 10, 2015

Comment after a first pass (pages 1-17): Page 8 and later: I believe that using the term "Sole Designator" to describe the full set of powers is misleading (as perhaps the Sole Member was, although not as obvious). The term designator is a legal term related only to appointing or removing directors. That power is given to the SOs, one AC and the NomCom (for appointment). The other community powers need to be exercised through a UA, but not necessarily the "designator", and using that term will imply to some that the powers are ALL held only by those that appoint directors. Page 8: Stress tests do not "ensure" SS&R. They help identify potential SS&R problems or validate that they are not present. Page 9: Under the current Bylaws, no Public Comment is necessary before Bylaw changes. That is something that the Board does voluntarily. The only Bylaw requirement is that amendments be passed by 2/3 of all sitting directors. (Properly documented on page 17.) Page 10, line 5. It is inaccurate to say the sole designator gives the "maximum" amount of powers. It is described later in the page correctly as giving a reasonable set of powers consistent with requirements. Page 11, 5th bullet, 2nd "or" should be an "and". Page 12, bullet 1, sub-bullet 2. I don't think that "singing" contracts would be much of problem, although perhaps signing contracts could. Joking aside, the only resolutions that we are talking about rejecting are approving budgets and amending Bylaws, so contracts are not an issue. Page 12, I think it is deranged to think we could schedule and organize a face-to-face meeting of ACs and SOs in 15 days. Page 16, "The Power ..." title, Strategic instead of Strategy. Page 16, My recollection is that a budget or plan could only be rejected based on an issue that was raised during the consultative process. I think this is an important aspect and should be mentioned in this paper. Alan At 09/11/2015 04:42 PM, Bernard Turcotte wrote: >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. >Content-Type: application/pdf; name="Summary of the Work and Recommendations" > of the Cross Community Working Group on Enhancing ICANN > Accountability-0.8ToCCWG.pdf" >Content-Disposition: attachment; filename="Summary of the Work and" > Recommendations of the Cross Community Working Group on Enhancing ICANN > Accountability-0.8ToCCWG.pdf" >X-Attachment-Id: f_igsh55bg0 > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Stress Tests 29 and 30
by Greg Shatan Nov. 10, 2015

Nov. 10, 2015

I had been waiting until the Mission and Core Values section relating to these Stress Tests was close to stable before revisiting the issue of Stress Tests 29 and 30. Now that seems close at hand, I've prepared the attached revision, which is much more restrained than my prior effort. I look forward to discussing the attached. Greg

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Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
by Steve DelBianco Nov. 10, 2015

Nov. 10, 2015

Thank-you Pedro for picking-up this discussion after Dublin. Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees. What about a general Advisory Committee amendment along these lines, without singling-out the GAC? For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee. Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members. Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice. That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s advice. I believe that a new +2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection. As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC. Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin. I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin) This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again). Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there. Best regards, Steve 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: Monday, November 9, 2015 at 11:28 AM 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 NRO Position on Revision of ICANN Mission Statement
by Athina Fragkouli Nov. 10, 2015

Nov. 10, 2015

Dear all, For the record, in case you haven't seen it, the NRO issued a statement on the revision of ICANN Mission Statement: https://www.nro.net/news/the-nro-ec-recognises-that-the-icann-mission-state… I share this for information purposes only. No further actions are required. Thank you, Athina

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IGF informal gatherings
by León Felipe Sánchez Ambía Nov. 10, 2015

Nov. 10, 2015

Dear all, Once clarified that this informal gatherings will have no more effect than that of some of us having beers and commenting on CCWG issues, Pedro has kindly confirmed that we will have the Press Room available for us to meet there as follows: · November 9th: 9am to 12pm (instead of November 10th) · November 13th: 9am to 12pm This may be challenging to achieve but I think that as informal as it is, if some of us can jump in and out to meet others in these time slots, would be great. As these are not CCWG meetings, there is no agenda and we’ll see how it goes when we’re there. Also, if we manage to setup some kind of remote participation, I will announce it in the list. Safe travels to those who are attending the IGF. Best regards, León

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Fwd: Re: regulatory/mission issue WS2
by Eric Brunner-Williams Nov. 10, 2015

Nov. 10, 2015

Colleagues, Correspondence which inadvertently didn't go to the archived ccwg-acct list. My response to Malcolm, followed by Malcolm's query. Eric Brunner-Williams Eugene, Oregon -------- Forwarded Message -------- Subject: Re: [CCWG-ACCT] regulatory/mission issue WS2 Date: Sun, 8 Nov 2015 10:43:36 -0800 From: Eric Brunner-Williams <ebw(a)abenaki.wabanaki.net> To: Malcolm Hutty <malcolm(a)linx.net> CC: accountability-cross-community-bounces(a)icann.org Malcolm, That bell has already rung. SSAC 032 has been published. The Board took note of SiteFinder. More generally, the Corporation acted to prevent correct resolutions causing harm in the case of the Conficker.C variant. Still more generally, "we" (the "community") routinely produce informational RFCs and Best Current Practices documents addressing resolver operators, as well as others. The "means to ensure continuous correct resolution" is not limited to "the authority to direct, in a compulsory sense, the operators". I suggest that this detour into my opinion on the rights of ISPs doesn't illuminate the "what's a service?" question Becky and others are struggling with. My point was we could be specific about what we're not regulating, which I suspect means "content", not ASN filtering, not route filtering, and not filtering forward and backwards name-to-address resolution. Finally, the issue is not what our work product has been, and to what effect, but what it will be, after some transition. As I observed in the conclusion of the note from which you picked the quote below, the possibility of future work on resolution is obsoleted by the sweeping prohibition language, with the exception as others have mentioned, through contracts. Cheers, Eric Brunner-Williams Eugene, Oregon On 11/6/15 4:30 PM, Malcolm Hutty wrote: > On 2015-11-06 22:09, Eric Brunner-Williams wrote: >> >> First, could we narrow what it is we're not regulating, ISPs do a lot >> of things, but one thing they can do is operate recursive resolvers, >> so in particular, the "no authority to regulate" means no means to >> ensure continuous correct resolution of domain names by ISPs. > > Eric, > > Are you of the opinion that ICANN does in fact have the authority to > direct, > in a compulsory sense, the operators of name resolvers such as ISPs in > how to operate them? > > Malcolm.

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Re: [CCWG-ACCT] [IAB] Please review regarding IAB comments on Mission Statement
by Kavouss Arasteh Nov. 9, 2015

Nov. 9, 2015

Deasr All, Perhaps the issue was much simpler and straigjht forward than wjhat we discussing. Wouildn't be more prudent to keep the texct as iot was and when ever ,we refer to coorinationin the text we complemented it b" and support ,where applicable and required" The rest unchanged$ Regards Kavouss 2015-11-09 5:13 GMT+01:00 Seth Johnson <seth.p.johnson(a)gmail.com>: > Pasted below is my response to Andrew last week, which clarifies my > own position, including fuller text from my original post that did not > go to the list. > > > Seth > > On Mon, Nov 2, 2015 at 5:10 PM, Seun Ojedeji <seun.ojedeji(a)gmail.com> > wrote: > > Figured this will be asked and have to be answered at some point but not > > this early. I think it's just fine to get roles clarified as much as > > possible at this time in the interest of the future. > > > > > http://www.afrinic.net/blog/21-the-journey-to-dublin-and-beyond-iana-stewar… > > > > Cheers! > > > > Sent from my Asus Zenfone2 > > Kindly excuse brevity and typos. > > > > On 3 Nov 2015 01:55, "Padmini" <pdmnbaruah(a)gmail.com> wrote: > >> > >> In light of this thread, does it then make sense to completely separate > >> the three functions post the transition? > > ---------- Forwarded message ---------- > From: Seth Johnson <seth.p.johnson(a)gmail.com> > Date: Fri, Oct 30, 2015 at 10:31 PM > Subject: Re: [CCWG-ACCT] Please review regarding IAB comments on > Mission Statement > To: Andrew Sullivan <ajs(a)anvilwalrusden.com> > Cc: "Burr, Becky" <Becky.Burr(a)neustar.biz>, Steve Crocker > <steve(a)stevecrocker.com>, Accountability Community > <accountability-cross-community(a)icann.org>, "IAB(a)Iab.org" > <IAB(a)iab.org> > > > I would state that intergovernmental authorities come into play now. > My point isn't that these functions are or should be coordinated by > ICANN, nor that they should not be coordinated by IETF. My point is > that the role of governments is now becoming more determinative > (despite the conduct of the coordination in IETF). > > This edit, removing the (incorrect) use of the term coordination in > relation to ICANN and turning it into support and collaboration serves > to leave the functions in the intergovernmental context. Even if you > continue to conduct the processes in IETF. Not sure even specifying > somewhere (which is probably the case somewhere) changes it. > > Not constructing any type of argument that ICANN had this coordinating > function, unless in the perhaps interesting sense that having the term > there helped make things look like governments didn't possess this > authority. I maintain that we're just clearing the path for them to > finally actually start asserting their intergovernmental authority. > > This seems like just another case of the message not getting through. > If that's the case, I'll revert to saying "Just watch." :-) > > (added my text back in below yours) > > > Seth > > > On Fri, Oct 30, 2015 at 10:02 PM, Andrew Sullivan > <ajs(a)anvilwalrusden.com> wrote: > > Hi, > > > > I've trimmed some of the cc:s because I'm not really sure why the > > original was copied all over. > > > > On Fri, Oct 30, 2015 at 07:08:34PM -0400, Seth Johnson wrote: > >> The real question relates to context in the transition though: where are > >> core registries and protocol parameters coordinated, if that function is > >> removed from ICANN? > > > > They are co-ordinated exactly where they have been at least since the > > founding of ICANN: at the IETF. The IETF makes the decisions about > > the protocol parameters registries. ICANN, in its role as IANA, > > records those decisions. The ICANN role in this case is basically > > clerical. The IETF has been perfectly clear about this all the way > > through the entire process. So has ICANN: that's what the MoU between > > ICANN and the IETF (and IAB) says. > > > > I suppose it would be possible to construct an argument that ICANN had > > this "co-ordination" function when there was still a Protocol > > Supporting Organization, but since the PSO went away rather a long > > time ago, that argument is no longer available in any case. (I happen > > not to accept that argument anyway, but since it doesn't ramify I > > don't think it's worth exploring in detail.) > > > > Best regards, > > > > A (speaking for myself) > > > > -- > > Andrew Sullivan > > ajs(a)anvilwalrusden.com > > > On Fri, Oct 30, 2015 at 7:08 PM, Seth Johnson <seth.p.johnson(a)gmail.com> > wrote: > > The real question relates to context in the transition though: where > are core registries and protocol parameters coordinated, if that > function is removed from ICANN? The question may not be so simple as > the tech community might think. > > We are moving from one context to another (a very different > stewardship context), and that changes things thoroughly in this case > (and generally should have been borne in mind in any such process > transition). > > To put this in context further, I essentially brought this question up > at NetMundial: > > Last NetMundial Panel on the IANA Transition: > https://www.youtube.com/watch?v=z2DAvj5M60k#t=5713 > > My question: > https://www.youtube.com/watch?v=z2DAvj5M60k#t=10186 > > Heather Dryden of GAC responded, though did not acknowledge that > governmental authority (or intergovernmental, as the resolutions I > referenced are largely ITU) would be already relevant even at that > stage for these supposedly "merely" technical functions, and steered > the question toward the names function instead: > > Heather Dryden's (limited) response to my question: > https://www.youtube.com/watch?v=z2DAvj5M60k#t=10400 > > I believe the ccTLDs were already in a position to act in those > "merely" technical areas even from that point (from the standpoint of > authority over their own country domains, though not necessarily so > free from the standpoint of what we were supposedly doing with a > multistakeholder/non-intergovernmental process -- plus all that "one > net" talk :-) ) but we were supposedly striving toward a > non-intergovernmental process according to NTIA, and the truth is the > public policy implications of acting even in these areas are not > really so "merely technical." > > I don't believe it would generally be accepted that this version of > oversight would be established by the IANA Transition without engaging > on its ramifications. > > <snip> >

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Re: [CCWG-ACCT] [IAB] Please review regarding IAB comments on Mission Statement
by Andrew Sullivan Nov. 9, 2015

Nov. 9, 2015

[most cc:s trimmed, including iab(a)iab.org, since this message doesn't really ramify but I wanted it on the record.] On Sun, Nov 08, 2015 at 11:13:26PM -0500, Seth Johnson wrote: > Pasted below is my response to Andrew last week, which clarifies my > own position, including fuller text from my original post that did not > go to the list. I didn't end up replying to the last of these, because I think Seth and I have a deep disagreement about how the publication of the IETF protocol parameters are actually used on the Internet. It became clear to me during the exchange that we're unlikely to resolve that disagreement, so it didn't seem worth continuing to try to persuade each other. A -- Andrew Sullivan ajs(a)anvilwalrusden.com

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