December 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] CCWG ACCT Meeting | 12:00 UTC | 22 December
by Dr Eberhard W Lisse Dec. 20, 2015

Dec. 20, 2015

Brenda, please note that I will be in transit on Tuesday, though I may, perhaps get the Adobe Connect in the iPhone to work so I can at least listen in the car. greetings, el On 2015-11-19 16:59 , Brenda Brewer wrote: > *CCWG-Accountability Meeting *– Tuesday, 22 December 2015 from > 12:00 – 14:00 UTC [...]

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Third Draft Proposal -- substantive Comments/Edits
by Rosemary E. Fei Dec. 20, 2015

Dec. 20, 2015

Dear CCWG: To confirm our comprehension of the CCWG’s decisions on the many changes from the Second to the Third Proposal, we reviewed the Third Proposal as published. In doing so, we noted points where the language in the Third Proposal does not unambiguously reflect our current substantive understanding of the CCWG’s intent. In our comments on the Third Proposal draft, we suggested edits on many of these points which were not accepted, so perhaps we have misunderstood the intent. As to other points, we don’t have a clear understanding of the CCWG’s intent. In either case, we would like clarification. In the attached table you will find our joint substantive comments on the Third Proposal as published. As we approach the implementation stage, we would welcome an opportunity to discuss any of our comments that raise questions or concerns, to ensure we know what we’re asked to implement. We also hope these comments may be useful to clarify the final proposal for the general reader. To make the volume of our comments more manageable, we are sending staff separately our comments on the Third Proposal that raise only non-substantive issues. Holly and 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 _____________________________ The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei(a)adlercolvin.com, and delete all copies of this message and its attachments, if any. Thank you. 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.

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Re: [CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
by Alan Greenberg Dec. 20, 2015

Dec. 20, 2015

Greg, you say that the current Bylaws do not reference voting. The current wording (https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j) is "In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice..." How else is the Board able to formally decide on anything other than by voting? Alan At 16/12/2015 03:09 AM, Greg Shatan wrote: >All, > >In reviewing the Third Draft Proposal, concerns >have been raised within my constituency that the >proposed Bylaw does more than replace an >existing "majority" threshold with a new "2/3" >threshold. The concern is that the proposed >Bylaw introduces a "mandatory vote" by the Board >in order to reject GAC Advice where the Bylaws >do not currently require a Board vote. Further, >there appears to be a concern that, if the Board >does not take a vote and affirmatively reject a >piece of GAC advice, then that GAC advice becomes binding on ICANN. > >These concerns stem from a reading of the draft Bylaw (new language in red): > > >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 Governmental >Advisory Committee advice approved by a full >Governmental Advisory Committee 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 of the Board, and tThe >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. > > >âThe current language of the Bylaw makes no >reference to voting, only to the far more >ambiguous "determines to take an action." As >such, adding a reference to a vote can be seen >to add a new element (aside from the >introduction of a 2/3 threshold): the element of >a bylaws-mandated vote. Similarly, the >statement that GAC Advice can only be rejected >by a vote of the Board can be read to state that >if no such vote is taken (or if such vote is >taken and fails) that the GAC Advice is then >something ICANN is bound to follow. > >I don't think either of these things were >intended by the CCWG. Whether they are >misreadings of our draft language or unintended >consequences of the drafting, this concern is >troubling. If it is the intent of some of those >drafting this language to force a vote where >none is currently required, then that is even more troubling. > >I would appreciate some clarification on these >matters that I can bring back to my group. > >I would also appreciate the CCWG considering a >change in language to remove this ambiguity >which is currently causing great consternation in my group. > >I suggest the language below. This m >ore closely track >âsâ >the language of the existing bylaw and avoid the >use of the term "vote," with its potential unintended consequences: > >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. >â >If the Board >â >determines to take an action that is not consistent with >Governmental Advisory Committee advice approved >by a full Governmental Advisory Committee >consensus, understood to mean the practice of >adopting decisions by general agreement in the absence of any formal objection, >â >âsuch determination must be supported by >two-thirds 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. >â > > >I would appreciate your thoughts on this point >and the revised language. Thank you. > >Greg >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
by Alan Greenberg Dec. 19, 2015

Dec. 19, 2015

Keith, I wasn't trying to compare the two processes at any level. I was simply pointing out that the concept of board "approval" at a lower threshold than 50% is not a new concept. Whether it is appropriate in the case of GAC advice and whether it should depend on how that advice was determined, was not the focus of my comment. The ALAC has carefully avoided comment on that issue and I am honouring that. Alan At 18/12/2015 01:46 PM, Drazek, Keith wrote: >Alan, if weâre comparing results of GNSO PDP >recommendations with GAC consensus advice, >itâs important to note that a key element of >the GNSOâs threshold is the Board only has to >show deference to the GNSO when that advice is >the result of a formal PDP. This means not all >GNSO resolutions receive the Board deference, >even if the vote of the GNSO Council is >unanimous. The GNSO may only initiate a formal >PDP under certain restrictions in both scope and >jurisdiction and not every topic can be properly >considered in scope for a GNSO PDP. In fact, >as part of every issue report in the GNSO PDP >process, the ICANN General Counsel is asked to >opine as to whether the proposed issue is >properly within the jurisdiction of the >GNSO. If it is not, that does not prevent the >PDP from continuing, but the higher Board >threshold would not be required in such a case. >Will the GAC be similarly and appropriately >restricted in the scope of its advice, for >example, to only issues of public policy or >international law and treaties? This issue is >under active discussion in the RySG and will be >reflected in its public comments. Regards, Keith > >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Alan Greenberg >Sent: Friday, December 18, 2015 1:28 PM >To: Robin Gross; Greg Shatan >Cc: accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] Does the proposed >change to the GAC Bylaw create a new "mandatory >voting requirement" for the ICANN Board? > >We have th3e exact same situation with the Board >accepting GNSO PDP recommendations. It takes >supermajority to reject. But we still say that >the GNSO "recommends" policy and it is adopted - >or not - by the Board. Saying that it takes a >supermajority to reject is identical to saying >that acceptance only requires 1/3. There is no >presumption. It is simply a different threshold. > >Alan > >At 18/12/2015 01:11 PM, Robin Gross wrote: > >Greg raises an interesting point about the >status of GAC advice in the absence of a 2/3 >vote to reject it below. I recall our lawyers >telling us early on (and often) that board >members are not allowed to Ã¢¬off-load" key >decisions of the organizationÃ¢¬s management >to others as it would be a breach of theiir >fiduciary duty. But it seems like that is what >we may have done (intentionally or not) by >presumptively accepting GAC advice and putting >the burden on the board to reject and undo the >effect of that decision. This may be an issue >we need to further explore with our lawyers. > >Robin > > > >On Dec 17, 2015, at 9:51 PM, Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com > wrote: > >[] >There is another issue raised by this new >language. With this revision, it is far from >clear what the status of GAC Advice that not >been rejected by a 2/3 vote? If the Board takes >a vote, but the rejection fails to pass, is the >GAC Advice now "accepted" (possibly by a vote of >1/3+1) and binding on ICANN? What about GAC >Advice on which no vote has been taken -- is >that Advice "accepted" and binding on ICANN and, >if so, when? [Compare this to the Community's >right to reject a standard bylaws change -- if >the community does not elect to do so, or >attempts to do so and fails, that bylaw clearly become binding upon ICANN.] > >The combination of a 2/3 threshold and a >mandatory vote to reject GAC Advice creates a >presumption that GAC advice will be >accepted. This presumption is novel and clearly >elevates GAC Advice to a new level of deference within the ICANN process. > >Although none of this is explicitly stated in >the detailed explanation in Annex 11, the more I >consider this and the more people I talk to, the >more convinced I am that what I've laid out >above is exactly what was intended by some of >those involved in the drafting process for the >Bylaw revision, and the rest of us just didn't >see it at the time. Since it's not brought out >in the CCWG's explanation, this fundamental >change can "fly under the radar" until the Proposal is approved. > >I don't believe that this was the intention of >the CCWG. If it's not the intention of the >CCWG, then my alternative wording would remove >this concern. If this is in fact the intention >of the CCWG then I think it needs to be part of >the explanation set forth in the proposal, so >that the intent and effect are clear, and any >reader can clearly understand what we have wrought. > >Finally, I have to say that this is not an >"implementation level" concern. This is, if you >will, a "policy level" concern. If this gets >baked into the accepted proposal, then the >implementers will essentially be bound to carry >this out in the implementation (i.e., the >drafting of the "real" Bylaw language). Any >later attempt to change a concept stated in the >accepted and transmitted final proposal will >face a very high set of hurdles, at best. Now is the time to deal with this. > >Greg > > > >On Thu, Dec 17, 2015 at 3:22 PM, Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca > wrote: >Greg, you say that the current Bylaws do not >reference voting. The current wording ( ><https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j>https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j) >is "In the event that the ICANN Board determines >to take an action that is not consistent with >the Governmental Advisory Committee advice..." >How else is the Board able to formally decide on >anything other than by voting? >Alan >At 16/12/2015 03:09 AM, Greg Shatan wrote: > >All, >In reviewing the Third Draft Proposal, concerns >have been raised within my constituency that the >proposed Bylaw does more than replace an >existing "majority" threshold with a new "2/3" >threshold. The concern is that the proposed >Bylaw introduces a "mandatory vote" by the Board >in order to reject GAC Advice where the Bylaws >do not currently require a Board vote. Further, >there appears to be a concern that, if the Board >does not take a vote and affirmatively reject a >piece of GAC advice, then that GAC advice becomes binding on ICANN. >These concerns stem from a reading of the draft Bylaw (new language in red): >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 Governmental >Advisory Committee advice approved by a full >Governmental Advisory Committee 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 of the Board, and tThe >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. > >ÃÂ¢Ã¢Â¹The ccurrent langanguage of the Bylaw >makes no reference to voting, only to the far >more ambiguous "determines to take an >action." As such, adding a reference to a vote >can be seen to add a new element (aside from the >introduction of a 2/3 threshold): the element of >a bylaws-mandated vote. Similarly, the >statement that GAC Advice can only be rejected >by a vote of the Board can be read to state that >if no such vote is taken (or if such vote is >taken and fails) that the GAC Advice is then >something ICANN is bound to follow. >I don't think either of these things were >intended by the CCWG. Whether they are >misreadings of our draft language or unintended >consequences of the drafting, this concern is >troubling. If it is the intent of some of those >drafting this language to force a vote where >none is currently required, then that is even more troubling. >I would appreciate some clarification on these >matters that I can bring back to my group. >I would also appreciate the CCWG considering a >change in language to remove this ambiguity >which is currently causing great consternation in my group. >I suggest the language below. This m >ore closely track >ÃÂ¢Ã¢Â¹sÃsÃÂ¢Ã¢Â¹

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Re: [CCWG-ACCT] Personal Responses to Draft Summary of ALAC Issues on Mission (Recommendation 5)
by David Post Dec. 19, 2015

Dec. 19, 2015

At 03:58 PM 12/17/2015, Mueller, Milton L wrote: >[SNIP] >More responses to Becky in line below: > >BB: While I don't think that ICANN has the authority to demand that >the registry operator adopt such a policy, I have no problem >whatsoever with ICANN holding the registrant to that policy if it >was offered as part of the application. (Others may well disagree with me.) > >MM: I do disagree. One problem is that the line between what ICANN >demands and what is offered "voluntarily" by the registry is >unclear, and easily fudged, given ICANN's monopoly position. For >example, suppose someone applied for that TLD and the GAC and ALAC >advised that the applicant not be given the domain unless they >adopted such a policy. If this would be classified as the registry >"voluntarily" adopting the policy (because they will be denied entry >if they don't) it is very clearly an example of ICANN using its >monopoly control of the root to impose regulation on the users >[SNIP] I agree that the line between "voluntary" provisions and "mandatory" provisions is a difficult one to draw. But I'm not sure that means that it has to be abandoned, or that a well-formed IRP couldn't distinguish between the two. Some policies are imposed on registry operators (and/or on registrars and registrants) by virtue of an ICANN policy - those are relatively easy to characterize as "mandatory." The example you gave is much harder - but it does seem to me that it's not too difficult to characterize that as "mandatory" as well, and that the affected party would and should be able to make the argument you're making (i.e., that is an example of ICANN "using its monopoly control of the root to impose regulation of the users"), and that it would therefore have to be within the Mission to be valid. 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 *******************************

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Personal Responses to Draft Summary of ALAC Issues on Mission (Recommendation 5)
by Burr, Becky Dec. 19, 2015

Dec. 19, 2015

According to the Draft Issues document circulated by Alan Greenberg, “ALAC has a grave concern that the wording used to restrict ICANN’s mission may have inadvertent results which severely impact its ability to carry out its intended mission.” That’s a pretty serious charge and I thought it would make sense to begin a substantive discussion of the ALAC points. Here is my attempt to start that conversation. In the hope of moving this issue forward quickly, I am stepping out of my role as rapporteur here and expressing my personal views. I apologize in advance for the length of this post, but wanted to respond as fully as possible to the ALAC Draft. 1. According to the Draft Summary, the notes to drafters incorrectly imply that ICANN’s Mission is limited to the “picket fence.” I believe this is inaccurate. ICANN’s Mission is specifically described as coordinating the development and implementation of bottom-up policies for which uniform coordinate resolution is reasonably necessary to facilitate the openness,, interoperability, and/or stability [of the DNS]. The note to drafters says that RAA Spec 4 and RA Spec 1 “are intended and understood to be within the scope of ICANN’s Mission.” 2. According to the Draft Summary, the ALAC wants a legal opinion that provides assurance that the “many areas of contracts” outside the so-called “picket fence,” established by negotiation, or other than through a PDP “may be renewed without change in the areas in question.” This concern also extends to new gTLD operators who have not signed contracts yet. I think we need to break this question down a bit. · First, recall that the Mission specifically empowers ICANN to “implement” policies. Also recall that the text we have provided states “ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.” Most of the provisions of the RA and RAA of concern should be covered by these authorities, IMHO. · Second, I acknowledge that there could be some new gTLD applicant-provided PICs and new gTLD applicant-provided operating rules that fall outside of ICANN’s Mission Statement. For example, suppose the applicant for .singlemaltscotch specified in its application (which is, in turn, incorporated into its Registry Agreement) that all registrants in the domain must be 21 years old. That requirement probably is not strictly necessary to facilitate the openness, interoperability, resilience, security and/or stability [of the DNS]. While I don’t think that ICANN has the authority to demand that the registry operator adopt such a policy, I have no problem whatsoever with ICANN holding the registrant to that policy if it was offered as part of the application. (Others may well disagree with me.) · Third, rather than speaking in generalities, could we talk about some specific provisions that arguably fall outside ICANN’s Mission and its implementation authority? I’m asking both sides for contributions on this point. · Finally – the request for a “legal opinion.” I will repeat what I’ve already said, these kind of open-ended questions produce very expensive, very unsatisfying legal opinions. Rather than chase this option, once we agree on the problem statement, let’s ask the lawyers if there is language that could be added to reinforce the likelihood that any challenge will be resolved in the manner we collectively anticipate. 3. According to the ALAC Draft Summary “anything which would allow an IRP to invalidate the current contractual terms is not acceptable.” I don’t think that there is a risk of invalidating the current contractual terms – and the language that we have discussed as an additional note to drafters would reinforce that (This means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language.) I don’t have a particular problem extending that to existing applicants who have yet to sign registry agreements, though others might. But seriously, is ALAC asking for a guarantee that certain provisions cannot be challenged? That is not a reasonable ask IMHO. That’s because it is always the case that ICANN could choose to enforce a provision of an existing agreement in a manner that is a frank violation of the Mission. I’ve previously provided several examples in the context of 3.18 of the RAA, which I believe is – on its face – consistent with Mission, but which could be enforced in a manner that is not. 4. ALAC continues to object to the removal of the “where feasible and appropriate” caveat to the Core Values regarding reliance on market mechanisms to promote and sustain a competitive environment. ALAC takes exception with my point that “ICANN does not possess the requisite skill or authority to intervene in the competitive market,” citing the RSEP provisions regarding concerns about significant competition issues. I think the example completely supports my point here. In the RSEP, if ICANN has competition concerns, it has the authority to “refer the matter to the appropriate competition authority.” From that point it is entirely up to the appropriate competition authority to exercise its sovereign authority with respect to antitrust law. If the concern is that somehow the omission of the “where feasible and appropriate” language would prevent ICANN from making such a referral (which I don’t believe is the case), then I am happy to clarify. But taking competition law into its own hands is, IMHO, a very clear example of the kind of regulatory authority that ICANN should not have. 5. ALAC objects to the Commitment to “preserve and enhance the neutral and judgment free operation of the DNS,” pointing out that the NTIA requirement is limited to the “neutral and judgment free administration of the technical DNS and IANA functions.” Good point, I am ok with that change. 6. The ALAC believes that the AoC commitment to “consumer trust” should be in the ICANN Commitments and Core Values rather than in the AoC reviews provisions of the Bylaws. Section 3 of the AoC describes what the “document” (the AoC) accomplishes: it affirms key commitments by DOC and ICANN, including commitments “to promote competition, consumer trust, and consumer choice in the DNS marketplace.” The context for promoting consumer trust is found exclusively in Section 9.3, which describes the reviews that must be undertaken in connection with the expansion of the top level domain space. This issue was debated extensively within the CCWG. A general commitment to promoting consumer trust threatens massive scope creep IMHO. 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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Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by David Post Dec. 18, 2015

Dec. 18, 2015

oops ... I meant rootserver operators, not RiRs ... "DNS on the Brain" David ******************************************************************************* That's correct: "If I have a contract to clean the FBI building, and the contract is terminated, I will be in big trouble if I show up and pull out my cleaning supplies and try to go to work." But that's because without the contract, you're a trespasser when you go into the FBI building. If you have a contract to clean Rock Creek Park, and the contract is terminated, there's no problem if you show up afterwards and clean the park - you're allowed to be there, even without the contract, and there's no law against cleaning up parks on your own. If you have a government contract to conduct research on cancer formation in mice, you can continue to do the research after the contract is terminated, because there's no law against doing research on cancer formation in mice. The IANA Contract is indeed, as you put it, an "odd bird." IMHO, it is more like the parks cleaning contract than the FBI building cleaning contract - ICANN )(or anyone else) would not be breaking any law (or "trespassing") if it continued to do everything it does today, even after the termination of the contract. Phil Corwin wrote: >PC: If the IANA contract expired tonight ICANN >could keep doing everything it is doing today >exceept recommend changes to the root zone. ... Even that, I would argue, is something ICANN could do perfectly lawfully even after contract termination - the same way Virtualaw LLC, or the University of Minnesota, or David Post can perfectly lawfully "recommend changes to the root zone." After contract termination, the root zone operator is not obligated to do anything ICANN recommends - but that doesn't speak to whether ICANN can legally continue to do what it is currently doing. If, after termination, ICANN recommended a change to the Root zone and the RIR's implemented that change in the root zone files under their control, would there have been any violation of any law? I would say "No." David At 02:43 PM 12/17/2015, Greg Shatan wrote: >On the other hand, if you have a government >contract to operate a resource or provide >particular services, you can't do so after the >contract expires.Â If I have a contract to >clean the FBI building, and the contract is >terminated, I will be in big trouble if I show >up and pull out my cleaning supplies and try to go to work. > >Even in your scenario, while you might continue >to make widgets or conduct research, you'll no >longer be making widgets for the government or >conducting government research.Â Either you >would be doing it for other clients, or it would >be a hobby (and businesses don't tend to have hobbies). > >That said, the IANA Contract is an odd >bird.Â It's simplistic to think of it as a >contract where the government has a resource and >it contracts with a private party to manage that >resource.Â If it were that simple, the resource >would stay with the government and a new manager >would be found.Â The IANA Contract was much >more about finding oversight and a "home" for a >private resource that started in Jon Postel's >shirtpocket.Â I'm reminded of the book "Are You >My Mother?", where a little hatchling chick runs >around trying to get someone to be its >mother.Â IANA found its mother and 18 years >later (ironically), it's ready to fly on its own. > >Lastly though, I agree that if in fact this "Let >It Go" scenario were actually tried, it would >not be pretty.Â When Congress knocks on the >door, and the NTIA says "IANA? There's no IANA >here.Â The contract was over and she left," there would be hell to pay. > >GregÂ > >On Thu, Dec 17, 2015 at 11:36 AM, David Post ><<mailto:david.g.post@gmail.com>david.g.post(a)gmail.com> wrote: >At 08:36 PM 12/16/2015, Phil Corwin wrote: >>[SNIP] >>Respectfully, while I have heard the Ã¢just >>let the contntract expireÃ¢ scenario before I >>donÃ¢t buy it for three reasons. Â >>First, ICANN has been Ã¢hiredÃ¢ under the >>the contract and when it expires it no longer >>has any right to manage IANA, no more than any >>other contractor has a right to keep performing >>the work it was doing after its contract terminates. >Though it may not matter too much, I'm not sure >that's strictly true ... Generally speaking, a >government contractor DOES have the right to >keep performing work it was doing under contract >after the contract expires.Â If I am the >recipient of a government contract to make >widgets, or to conduct research, when the >contract expires ordinarily I can go on making >widgetsor conducting the research.Â I think the >same thing is true here.Â Depending on exactly >what you mean by "managing IANA," there is a >great deal that ICANN now does under its >contract with USG that it could simply continue >to do when the contract expires.Â >David > > >>Â >>Second, Secretary Strickling is already on the >>public record saying this in January 2015 about >>the FY 2015 prohibition, which is identical to the one in the FY 16 bill: >>We take that seriously. Accordingly, we will >>not use appropriated funds to terminate the >>IANA functions contract with ICANN prior to the >>contract's current expiration date of September >>30, 2015. Nor will we use appropriated dollars >>to amend the cooperative agreement with >>Verisign to eliminate NTIA's role in approving >>changes to the authoritative root zone file >>prior to September 30. On these points, there is no ambiguity. >>That language puts on NTIA on record as viewing >>the transition as something that requires it to >>actively perform two separate actions. >>Â >>Third, and most important, the whole concept of >>the Ã¢trtransitionÃ¢ includes NTIA >>transferring its role to the global >>multistakeholder community which has acquired >>adequate accountability powers, and that >>implies an active handoff and not a passive contract expiration. >>Â >>But we have lots of other lawyers and policy >>wonks on this list, so opinions may vary. >>Â >>Best regards, Philip >>Â >>Â >>Philip S. Corwin, Founding Principal >>Virtualaw LLC >>1155 F Street, NW >>Suite 1050 >>Washington, DC 20004 >><tel:202-559-8597>202-559-8597/Direct >><tel:202-559-8750>202-559-8750/Fax >><tel:202-255-6172>202-255-6172/cell >>Â >>Twitter: @VlawDC >>Â >>"Luck is the residue of design" -- Branch Rickey >>Â >>From: Steve DelBianco [ mailto:sdelbianco@netchoice.org] >>Sent: Wednesday, December 16, 2015 8:18 PM >>To: Phil Corwin; Greg Shatan; Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>Phil I donÃ¢t tthink the Congressional appr >>appropriations language would prevent the >>transition Ã¢event".Â Â Â NTIA could >>simply allow the IANA contract to expire >>30-Sep-2016 without spending any resources >>whatsoever.Â The contract could just expire, >>leaving in question who has the authority to >>operate the IANA functions.Â But no question >>who would be operating the root, numbers and >>protocols the next day ICANN would. >>< >>Â >>So we (the community) should continue >>developing accountability mechanisms so we can >>hold ICANN accountable if/when it takes control >>of IANA functions.Â Â It could happen on 30-Sep-2016 so letÃ¢â¬s be ready. >>Â >>From: >><<mailto:accountability-cross-community-bounces@icann.org> >>accountability-cross-community-bounces(a)icann.org >> > on behalf of Phil Corwin <<mailto:psc@vlaw-dc.com>psc(a)vlaw-dc.com> >>Date: Wednesday, December 16, 2015 at 7:56 PM >>To: Greg Shatan >><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com >> >, Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > >>Cc: Accountability Cross Community >><<mailto:accountability-cross-community@icann.org> >>accountability-cross-community(a)icann.org> >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>NTIA can continue to prepare for the >>transition, including leading an interagency >>review of any Proposal it receives from ICANN. >>But it is prohibited from actually effecting >>the transition until October 1, 2016. >>Â >>Â >>From: >><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >>[ >>mailto:accountability-cross-community-bounces@icann.org] >>On Behalf Of Greg Shatan >>Sent: Wednesday, December 16, 2015 5:07 PM >>To: Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>As I read this, it does not slow anything >>down.Â We were targeting a transition around September 30, 2015 in any event. >>Â >>Greg >>Â >>On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter >><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > wrote: >>Hi all, hi Milton, >>Â >>My understanding of the steps in the timetable >>was that finalising our proposal in January was >>what gave space for a transition in September at the earliest. >>Â >>Are you suggesting that instead it means one of >>the earlier steps can't start when it was intended? >>Â >>I.e. If NTIA could not start its consideration >>until 30 Sep then that does materially change >>things, timing wise. But if it could still do >>its review as part of preparing for a transition, then that wouldn't. >>Â >>Maybe we could ask NTIA for their view of the situation too? >>Â >>Cheers >>Jordan >>On Thursday, 17 December 2015, Mueller, Milton >>L <<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: >>This is good news, and I hope the co-chairs of >>the CCWG all sit down and read former >>Congressman Boucher's message out loud - better >>yet, sing it to the tune of Jingle Bells! - >>together. The idea that we have to truncate our >>process and twist ourselves into pretzels or >>cave to unreasonable demands from the board in >>order to meet an arbitrary schedule is now, I think, officially dead. >>--MM >> > -----Original Message----- >> > It's also noteworthy that (b) has been added >> saying that the restriction shall >> > not apply in fiscal year 2017. That's a nice >> statement of intention by the >> > drafters of this provision that by the >> commencement of fiscal year 2017 in >> > October of next year the transition will be complete. >> > >> > I don't believe that the adoption of this >> language in any way reflects a stepping >> > back by Congress from the bipartisan consensus which has now been formed >> > in both the House and the Senate to support >> the IANA transition as long as the >> > NTIAÃ¢s originally announced 4 principles >> for IC ICANN accountability are in place >> > and are enforceable as part of the transition plan. >> > >> > Please let me know if you have questions. >> > >> > Rick >> > >> > SEC. 539. (a) None of the funds made available by >> > 21 this Act may be used to relinquish the responsibility of >> > 22 the National Telecommunications and >> Information Ad ministration, during >> > fiscal year 2016, with respect to >> > 24 Internet domain name system functions, including respon- >> > 1 sibility with respect to the authoritative root zone file and >> > 2 the Internet Assigned Numbers Authority functions. >> > 3 (b) Nothwithstanding any other law, subsection (a) >> > 4 of this section shall not apply in fiscal year 2017. >> > >> > >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>-- >>Jordan Carter >>Chief Executive, InternetNZ >><tel:%2B64-21-442-649>+64-21-442-649 | >><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >>Sent on the run, apologies for brevity >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>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>http://www.washingtonpost.com/people/david-post > >book (Jefferson's >Moose)Â ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2nÂ >Â Â Â Â Â >music ><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic >publications etc.Â http://www.davidpost.comÂ Â Â Â Â Â Â Â >******************************* ******************************* 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 *******************************

1 0

The Board's take on the Mission Statement
by Burr, Becky Dec. 18, 2015

Dec. 18, 2015

I have run a comparison between the Mission Statement with respect to names, which has been on the table since January of this year, and the Board’s proposed substitute. In doing so, I have set aside totally the difficult wording issues relating to regulatory prohibition and contracting authority. I am also setting aside, for the moment, Alan G’s concern regarding the bottom–up policy development language (which I believe is addressed through the contracting language). By any measure, the changes are significant. Because the fundamental role of the IRP is to ensure that ICANN stays within its Mission, the changes in the Mission statement directly impact the effectiveness of the “crown jewels” of this accountability exercise. I have asked Bruce to explain what is encompassed by "the allocation and assignment of names in the root zone” that is not covered by “coordination of the development and implantation of policies.” I encourage each of you to study the side-by-side comparison attached to determine for yourself whether the Board’s approach is consistent with the goals of clarifying ICANN’s limited Mission. [cid:50016878-9AD1-4B24-93CE-645E1C14EDEF] 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>

8 20

TR: Transcript, chat and recording - SO-AC-SG-RALO leaders call - 17 December 2015
by Mathieu Weill Dec. 18, 2015

Dec. 18, 2015

Dear colleagues, Below are the transcripts and recordings of the SO/AC leaders call that discussed the Boards comments yesterday. Best Mathieu De : David Olive [mailto:david.olive@icann.org] Envoyé : vendredi 18 décembre 2015 10:44 Objet : Transcript, chat and recording - SO-AC-SG-RALO leaders call - 17 December 2015 Dear Community Leaders: Attached please find the following: 1) Chat 2) Transcript 3) Link to recording http://audio.icann.org/so-ac-sg-ralo-leadership-board-briefing-17dec15-en. mp 3 <http://mailer.samanage.com/wf/click?upn=NrFWbrBstcrPWP369qgbqvRZi89Tr6Mef nO DfvoI5JRBoDZOYc5kkzK-2FhtkHaDYp9vKjRK9xEi-2BqW4NyePPQBIPq8-2B7pt8agp1dKZ8y CX v2WN-2Fj6kwPTZZpGcJAJ79Gc_lGKvkhLe3VgTw0A6eSbvAV8FX4tvpTV6rB-2BHISFdwQEIr1 yQ yGxiJiZDsUfZ-2FiHp6GeHF28-2BH6L6TDjnIv0XvX7m7fu39Kcmzjp1aLEHOJgC49SDUB44MU 2i VCDI47MA6vs7xlb-2FiTcjVd1UeRFTTpvgKWoCks2mdz8pDjinumbH2khOaQiqZioj9Pj0oG-2 Fi 1-2F09hWRYa5pahQcX9R0x3rlT2wISsEubiO1QVmglqTbZOUhyAkpqES3tnOKBsSEIpu4J4JDE Ka YzC0Dfz9qQXeRhKEnAVPiKqmW9Wl6jMDgm48eraGVL-2B9ZjMHn-2BXR8aE3DdvwM7-2FbwdjB HI nLKd0IHh6fdPKppypQdVDgZVpKuNFims4yUq6wAEFsYIakwzKO1QiPSNrPyoxNyMIra7RirgWA b2 7Jvf9of1FmpxX21G31OTDSD6U4o-2FwTzjgYDSzATu5lKow6FfShIf6EmyLyMUDkM-2BaXiNyF Jo L9-2FjDALlWiPUYcs7141oE2zBtCWs> And 4) Link to the Community Leaders Wiki Page (we will be posting the materials here as well) https://community.icann.org/display/soaceabout/Event+Calendar Best regards David David A. Olive Senior Vice President, Policy Development Support General Manager, ICANN Regional Headquarters Istanbul Hakki Yeten Cad. Selenium Plaza No:10/C K:10 34349 Fulya, Besiktas, Istanbul Internet Corporation for Assigned Names and Numbers (ICANN) Direct Line: +90.212.999.6212 Mobile: + 1. 202.341.3611 Mobile: +90.533.341.6550 Email: david.olive(a)icann.org www.icann.org <html><head></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; color: rgb(0, 0, 0); font-size: 14px; font-family: Calibri, sans-serif; "><div>Dear Community Leaders:</div><span id="OLK_SRC_BODY_SECTION"><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; color: rgb(0, 0, 0); "><div><span style="font-size: 16px;"><br></span></div><span id="OLK_SRC_BODY_SECTION" style="font-size: 16px;"><div xmlns:v="urn:schemas-microsoft-com:vml" xmlns:o="urn:schemas-microsoft-com:office:office" xmlns:w="urn:schemas-microsoft-com:office:word" xmlns:m="http://schemas.microsoft.com/office/2004/12/omml" xmlns="http://www.w3.org/TR/REC-html40"><div lang="EN-US" link="#0563C1" vlink="#954F72"><div class="WordSection1"><p class="MsoNormal">Attached please find the following:<o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">1)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Chat<o:p></o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">2)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Transcript<o:p></o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">3)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Link to recording<o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoNormal"><span style="color: rgb(17, 17, 17); "><a href="http://mailer.samanage.com/wf/click?upn=NrFWbrBstcrPWP369qgbqvRZi89T r6MefnODfvoI5JRBoDZOYc5kkzK-2FhtkHaDYp9vKjRK9xEi-2BqW4NyePPQBIPq8-2B7pt8ag p1dKZ8yCXv2WN-2Fj6kwPTZZpGcJAJ79Gc_lGKvkhLe3VgTw0A6eSbvAV8FX4tvpTV6rB-2BHI SFdwQEIr1yQyGxiJiZDsUfZ-2FiHp6GeHF28-2BH6L6TDjnIv0XvX7m7fu39Kcmzjp1aLEHOJg C49SDUB44MU2iVCDI47MA6vs7xlb-2FiTcjVd1UeRFTTpvgKWoCks2mdz8pDjinumbH2khOaQi qZioj9Pj0oG-2Fi1-2F09hWRYa5pahQcX9R0x3rlT2wISsEubiO1QVmglqTbZOUhyAkpqES3tn OKBsSEIpu4J4JDEKaYzC0Dfz9qQXeRhKEnAVPiKqmW9Wl6jMDgm48eraGVL-2B9ZjMHn-2BXR8 aE3DdvwM7-2FbwdjBHInLKd0IHh6fdPKppypQdVDgZVpKuNFims4yUq6wAEFsYIakwzKO1QiPS NrPyoxNyMIra7RirgWAb27Jvf9of1FmpxX21G31OTDSD6U4o-2FwTzjgYDSzATu5lKow6FfShI f6EmyLyMUDkM-2BaXiNyFJoL9-2FjDALlWiPUYcs7141oE2zBtCWs"><span style="color:#0066B2">http://audio.icann.org/so-ac-sg-ralo-leadership-boar d-briefing-17dec15-en.mp3</span></a></span><o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoNormal">And<o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">4)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Link to the Community Leaders Wiki Page  (we will be posting the materials here as well) <o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoNormal"><a href="https://community.icann.org/display/soaceabout/Event+Calendar">https ://community.icann.org/display/soaceabout/Event+Calendar</a><o:p></o:p></p ><p class="MsoNormal"><o:p> </o:p></p></div></div></div></span><div><br>< /div><span id="OLK_SRC_BODY_SECTION" style="font-size: 16px;"><div xmlns:v="urn:schemas-microsoft-com:vml" xmlns:o="urn:schemas-microsoft-com:office:office" xmlns:w="urn:schemas-microsoft-com:office:word" xmlns:m="http://schemas.microsoft.com/office/2004/12/omml" xmlns="http://www.w3.org/TR/REC-html40"><div lang="EN-US" link="#0563C1" vlink="#954F72"><div class="WordSection1"><p class="MsoNormal">Best regards           David</p></div></div></div></span></div></span><div><br></div><div><br></d iv><div><div><div><font face="Arial" style="font-size: 10px; ">David A. Olive</font></div><div><div><font face="Arial" style="font-size: 10px; ">Senior Vice President, Policy Development Support<br><font>General Manager, ICANN Regional Headquarters –Istanbul</font></font></div><div><span style="font-size: 10px; ">Hakki Yeten Cad. Selenium Plaza No:10/C K:10 34349 Fulya, Besiktas, Istanbul</span></div><div><font face="Arial" style="font-size: 10px; ">Internet Corporation for Assigned Names and Numbers (ICANN)</font></div><div><font face="Arial" style="font-size: 10px; "><br></font></div><div><font face="Arial" style="font-size: 10px; "><font>Direct Line:</font><font> +90.212.999.6212 </font></font></div><div><fo nt face="Arial" style="font-size: 10px; ">Mobile:       + 1. 202.341.3611</font></div></div><div><font face="Arial" style="font-size: 10px; ">Mobile:       +90.533.341.6550 </font></div><div><font face="Arial" style="font-size: 10px; ">Email:  <a href="mailto:david.olive@icann.org">david.olive(a)icann.org <mailto:david.olive@icann.org%3c/a%3e%3c/font%3e%3c/div%3e%3cdiv%3e%3cfont > </a></font></div><div><font face="Arial" style="font-size: 10px; ">www.icann.org <http://www.icann.org%3c/font%3e%3c/div%3e%3c/div%3e%3c/div%3e%3cdiv%3e%3c font> </font></div></div></div><div><font face="Arial" style="font-size: 10px; "><br></font></div><span id="OLK_SRC_BODY_SECTION"><div><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; color: rgb(0, 0, 0); "><style></style></div></div></span></body></html>

2 1

Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by David Post Dec. 18, 2015

Dec. 18, 2015

That's correct: "If I have a contract to clean the FBI building, and the contract is terminated, I will be in big trouble if I show up and pull out my cleaning supplies and try to go to work." But that's because without the contract, you're a trespasser when you go into the FBI building. If you have a contract to clean Rock Creek Park, and the contract is terminated, there's no problem if you show up afterwards and clean the park - you're allowed to be there, even without the contract, and there's no law against cleaning up parks on your own. If you have a government contract to conduct research on cancer formation in mice, you can continue to do the research after the contract is terminated, because there's no law against doing research on cancer formation in mice. The IANA Contract is indeed, as you put it, an "odd bird." IMHO, it is more like the parks cleaning contract than the FBI building cleaning contract - ICANN )(or anyone else) would not be breaking any law (or "trespassing") if it continued to do everything it does today, even after the termination of the contract. Phil Corwin wrote: >PC: If the IANA contract expired tonight ICANN >could keep doing everything it is doing today >exceept recommend changes to the root zone. ... Even that, I would argue, is something ICANN could do perfectly lawfully even after contract termination - the same way Virtualaw LLC, or the University of Minnesota, or David Post can perfectly lawfully "recommend changes to the root zone." After contract termination, the root zone operator is not obligated to do anything ICANN recommends - but that doesn't speak to whether ICANN can legally continue to do what it is currently doing. If, after termination, ICANN recommended a change to the Root zone and the RIR's implemented that change in the root zone files under their control, would there have been any violation of any law? I would say "No." David At 02:43 PM 12/17/2015, Greg Shatan wrote: >On the other hand, if you have a government >contract to operate a resource or provide >particular services, you can't do so after the >contract expires.Â If I have a contract to >clean the FBI building, and the contract is >terminated, I will be in big trouble if I show >up and pull out my cleaning supplies and try to go to work. > >Even in your scenario, while you might continue >to make widgets or conduct research, you'll no >longer be making widgets for the government or >conducting government research.Â Either you >would be doing it for other clients, or it would >be a hobby (and businesses don't tend to have hobbies). > >That said, the IANA Contract is an odd >bird.Â It's simplistic to think of it as a >contract where the government has a resource and >it contracts with a private party to manage that >resource.Â If it were that simple, the resource >would stay with the government and a new manager >would be found.Â The IANA Contract was much >more about finding oversight and a "home" for a >private resource that started in Jon Postel's >shirtpocket.Â I'm reminded of the book "Are You >My Mother?", where a little hatchling chick runs >around trying to get someone to be its >mother.Â IANA found its mother and 18 years >later (ironically), it's ready to fly on its own. > >Lastly though, I agree that if in fact this "Let >It Go" scenario were actually tried, it would >not be pretty.Â When Congress knocks on the >door, and the NTIA says "IANA? There's no IANA >here.Â The contract was over and she left," there would be hell to pay. > >GregÂ > >On Thu, Dec 17, 2015 at 11:36 AM, David Post ><<mailto:david.g.post@gmail.com>david.g.post(a)gmail.com> wrote: >At 08:36 PM 12/16/2015, Phil Corwin wrote: >>[SNIP] >>Respectfully, while I have heard the Ã¢just >>let the contntract expireÃ¢ scenario before I >>donÃ¢t buy it for three reasons. Â >>First, ICANN has been Ã¢hiredÃ¢ under the >>the contract and when it expires it no longer >>has any right to manage IANA, no more than any >>other contractor has a right to keep performing >>the work it was doing after its contract terminates. >Though it may not matter too much, I'm not sure >that's strictly true ... Generally speaking, a >government contractor DOES have the right to >keep performing work it was doing under contract >after the contract expires.Â If I am the >recipient of a government contract to make >widgets, or to conduct research, when the >contract expires ordinarily I can go on making >widgetsor conducting the research.Â I think the >same thing is true here.Â Depending on exactly >what you mean by "managing IANA," there is a >great deal that ICANN now does under its >contract with USG that it could simply continue >to do when the contract expires.Â >David > > >>Â >>Second, Secretary Strickling is already on the >>public record saying this in January 2015 about >>the FY 2015 prohibition, which is identical to the one in the FY 16 bill: >>We take that seriously. Accordingly, we will >>not use appropriated funds to terminate the >>IANA functions contract with ICANN prior to the >>contract's current expiration date of September >>30, 2015. Nor will we use appropriated dollars >>to amend the cooperative agreement with >>Verisign to eliminate NTIA's role in approving >>changes to the authoritative root zone file >>prior to September 30. On these points, there is no ambiguity. >>That language puts on NTIA on record as viewing >>the transition as something that requires it to >>actively perform two separate actions. >>Â >>Third, and most important, the whole concept of >>the Ã¢trtransitionÃ¢ includes NTIA >>transferring its role to the global >>multistakeholder community which has acquired >>adequate accountability powers, and that >>implies an active handoff and not a passive contract expiration. >>Â >>But we have lots of other lawyers and policy >>wonks on this list, so opinions may vary. >>Â >>Best regards, Philip >>Â >>Â >>Philip S. Corwin, Founding Principal >>Virtualaw LLC >>1155 F Street, NW >>Suite 1050 >>Washington, DC 20004 >><tel:202-559-8597>202-559-8597/Direct >><tel:202-559-8750>202-559-8750/Fax >><tel:202-255-6172>202-255-6172/cell >>Â >>Twitter: @VlawDC >>Â >>"Luck is the residue of design" -- Branch Rickey >>Â >>From: Steve DelBianco [ mailto:sdelbianco@netchoice.org] >>Sent: Wednesday, December 16, 2015 8:18 PM >>To: Phil Corwin; Greg Shatan; Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>Phil I donÃ¢t tthink the Congressional appr >>appropriations language would prevent the >>transition Ã¢event".Â Â Â NTIA could >>simply allow the IANA contract to expire >>30-Sep-2016 without spending any resources >>whatsoever.Â The contract could just expire, >>leaving in question who has the authority to >>operate the IANA functions.Â But no question >>who would be operating the root, numbers and >>protocols the next day ICANN would. >>< >>Â >>So we (the community) should continue >>developing accountability mechanisms so we can >>hold ICANN accountable if/when it takes control >>of IANA functions.Â Â It could happen on 30-Sep-2016 so letÃ¢â¬s be ready. >>Â >>From: >><<mailto:accountability-cross-community-bounces@icann.org> >>accountability-cross-community-bounces(a)icann.org >> > on behalf of Phil Corwin <<mailto:psc@vlaw-dc.com>psc(a)vlaw-dc.com> >>Date: Wednesday, December 16, 2015 at 7:56 PM >>To: Greg Shatan >><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com >> >, Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > >>Cc: Accountability Cross Community >><<mailto:accountability-cross-community@icann.org> >>accountability-cross-community(a)icann.org> >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>NTIA can continue to prepare for the >>transition, including leading an interagency >>review of any Proposal it receives from ICANN. >>But it is prohibited from actually effecting >>the transition until October 1, 2016. >>Â >>Â >>From: >><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >>[ >>mailto:accountability-cross-community-bounces@icann.org] >>On Behalf Of Greg Shatan >>Sent: Wednesday, December 16, 2015 5:07 PM >>To: Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>As I read this, it does not slow anything >>down.Â We were targeting a transition around September 30, 2015 in any event. >>Â >>Greg >>Â >>On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter >><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > wrote: >>Hi all, hi Milton, >>Â >>My understanding of the steps in the timetable >>was that finalising our proposal in January was >>what gave space for a transition in September at the earliest. >>Â >>Are you suggesting that instead it means one of >>the earlier steps can't start when it was intended? >>Â >>I.e. If NTIA could not start its consideration >>until 30 Sep then that does materially change >>things, timing wise. But if it could still do >>its review as part of preparing for a transition, then that wouldn't. >>Â >>Maybe we could ask NTIA for their view of the situation too? >>Â >>Cheers >>Jordan >>On Thursday, 17 December 2015, Mueller, Milton >>L <<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: >>This is good news, and I hope the co-chairs of >>the CCWG all sit down and read former >>Congressman Boucher's message out loud - better >>yet, sing it to the tune of Jingle Bells! - >>together. The idea that we have to truncate our >>process and twist ourselves into pretzels or >>cave to unreasonable demands from the board in >>order to meet an arbitrary schedule is now, I think, officially dead. >>--MM >> > -----Original Message----- >> > It's also noteworthy that (b) has been added >> saying that the restriction shall >> > not apply in fiscal year 2017. That's a nice >> statement of intention by the >> > drafters of this provision that by the >> commencement of fiscal year 2017 in >> > October of next year the transition will be complete. >> > >> > I don't believe that the adoption of this >> language in any way reflects a stepping >> > back by Congress from the bipartisan consensus which has now been formed >> > in both the House and the Senate to support >> the IANA transition as long as the >> > NTIAÃ¢s originally announced 4 principles >> for IC ICANN accountability are in place >> >> > and are enforceable as part of the transition plan. >> > >> > Please let me know if you have questions. >> > >> > Rick >> > >> > SEC. 539. (a) None of the funds made available by >> > 21 this Act may be used to relinquish the responsibility of >> > 22 the National Telecommunications and >> Information Ad ministration, during >> > fiscal year 2016, with respect to >> > 24 Internet domain name system functions, including respon- >> > 1 sibility with respect to the authoritative root zone file and >> > 2 the Internet Assigned Numbers Authority functions. >> > 3 (b) Nothwithstanding any other law, subsection (a) >> > 4 of this section shall not apply in fiscal year 2017. >> > >> > >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>-- >>Jordan Carter >>Chief Executive, InternetNZ >> >><tel:%2B64-21-442-649>+64-21-442-649 | >><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >>Sent on the run, apologies for brevity >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>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>http://www.washingtonpost.com/people/david-post > >book (Jefferson's >Moose)Â ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2nÂ >Â Â Â Â Â >music ><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic >publications etc.Â http://www.davidpost.comÂ Â Â Â Â Â Â Â >******************************* ******************************* 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 *******************************

1 0

FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by Phil Corwin Dec. 17, 2015

Dec. 17, 2015

FYI, just blogged on this... http://www.circleid.com/posts/20151216_fy16_approp_act_extends_iana_transit… 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 Sent from my iPad ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.

10 13

Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by David Post Dec. 17, 2015

Dec. 17, 2015

At 08:36 PM 12/16/2015, Phil Corwin wrote: >[SNIP] >Respectfully, while I have heard the âjust let >the contract expireâ scenario before I donât buy it for three reasons. > >First, ICANN has been âhiredâ under the >contract and when it expires it no longer has >any right to manage IANA, no more than any other >contractor has a right to keep performing the >work it was doing after its contract terminates. Though it may not matter too much, I'm not sure that's strictly true ... Generally speaking, a government contractor DOES have the right to keep performing work it was doing under contract after the contract expires. If I am the recipient of a government contract to make widgets, or to conduct research, when the contract expires ordinarily I can go on making widgetsor conducting the research. I think the same thing is true here. Depending on exactly what you mean by "managing IANA," there is a great deal that ICANN now does under its contract with USG that it could simply continue to do when the contract expires. David > >Second, Secretary Strickling is already on the >public record saying this in January 2015 about >the FY 2015 prohibition, which is identical to the one in the FY 16 bill: >We take that seriously. Accordingly, we will not >use appropriated funds to terminate the IANA >functions contract with ICANN prior to the >contract's current expiration date of September >30, 2015. Nor will we use appropriated dollars >to amend the cooperative agreement with Verisign >to eliminate NTIA's role in approving changes to >the authoritative root zone file prior to >September 30. On these points, there is no ambiguity. >That language puts on NTIA on record as viewing >the transition as something that requires it to >actively perform two separate actions. > >Third, and most important, the whole concept of >the âtransitionâ includes NTIA transferring >its role to the global multistakeholder >community which has acquired adequate >accountability powers, and that implies an >active handoff and not a passive contract expiration. > >But we have lots of other lawyers and policy >wonks on this list, so opinions may vary. > >Best regards, Philip > > >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: Steve DelBianco [mailto:sdelbianco@netchoice.org] >Sent: Wednesday, December 16, 2015 8:18 PM >To: Phil Corwin; Greg Shatan; Jordan Carter >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations >Act Extends IANA Transition Freeze without DOTCOM Act > >Phil I donât tthink the Congressional >appropriations language would prevent the >transition âevent". NTIA could simply allow >the IANA contract to expire 30-Sep-2016 without >spending any resources whatsoever. The contract >could just expire, leaving in question who has >the authority to operate the IANA >functions. But no question who would be >operating the root, numbers and protocols the next day ICANN would. >< > >So we (the community) should continue developing >accountability mechanisms so we can hold ICANN >accountable if/when it takes control of IANA >functions. It could happen on 30-Sep-2016 so letâs be ready. > >From: ><<mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org> >on behalf of Phil Corwin <<mailto:psc@vlaw-dc.com>psc(a)vlaw-dc.com> >Date: Wednesday, December 16, 2015 at 7:56 PM >To: Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com>, >Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz> >Cc: Accountability Cross Community ><<mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org> >Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations >Act Extends IANA Transition Freeze without DOTCOM Act > >NTIA can continue to prepare for the transition, >including leading an interagency review of any >Proposal it receives from ICANN. But it is >prohibited from actually effecting the transition until October 1, 2016. > > >From: ><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Greg Shatan >Sent: Wednesday, December 16, 2015 5:07 PM >To: Jordan Carter >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations >Act Extends IANA Transition Freeze without DOTCOM Act > >As I read this, it does not slow anything >down. We were targeting a transition around September 30, 2015 in any event. > >Greg > >On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter ><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz> wrote: >Hi all, hi Milton, > >My understanding of the steps in the timetable >was that finalising our proposal in January was >what gave space for a transition in September at the earliest. > >Are you suggesting that instead it means one of >the earlier steps can't start when it was intended? > >I.e. If NTIA could not start its consideration >until 30 Sep then that does materially change >things, timing wise. But if it could still do >its review as part of preparing for a transition, then that wouldn't. > >Maybe we could ask NTIA for their view of the situation too? > >Cheers >Jordan > >On Thursday, 17 December 2015, Mueller, Milton L ><<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: >This is good news, and I hope the co-chairs of >the CCWG all sit down and read former >Congressman Boucher's message out loud - better >yet, sing it to the tune of Jingle Bells! - >together. The idea that we have to truncate our >process and twist ourselves into pretzels or >cave to unreasonable demands from the board in >order to meet an arbitrary schedule is now, I think, officially dead. >--MM > > > -----Original Message----- > > It's also noteworthy that (b) has been added > saying that the restriction shall > > not apply in fiscal year 2017. That's a nice statement of intention by the > > drafters of this provision that by the commencement of fiscal year 2017 in > > October of next year the transition will be complete. > > > > I don't believe that the adoption of this > language in any way reflects a stepping > > back by Congress from the bipartisan consensus which has now been formed > > in both the House and the Senate to support > the IANA transition as long as the > > NTIAâs originally announced 4 principles > for ICANN accountability are in place > > and are enforceable as part of the transition plan. > > > > Please let me know if you have questions. > > > > Rick > > > > SEC. 539. (a) None of the funds made available by > > 21 this Act may be used to relinquish the responsibility of > > 22 the National Telecommunications and Information Ad ministration, during > > fiscal year 2016, with respect to > > 24 Internet domain name system functions, including respon- > > 1 sibility with respect to the authoritative root zone file and > > 2 the Internet Assigned Numbers Authority functions. > > 3 (b) Nothwithstanding any other law, subsection (a) > > 4 of this section shall not apply in fiscal year 2017. > > > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > >-- >Jordan Carter >Chief Executive, InternetNZ > ><tel:%2B64-21-442-649>+64-21-442-649 | ><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > >Sent on the run, apologies for brevity > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >No virus found in this message. >Checked by AVG - <http://www.avg.com>www.avg.com >Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >Internal Virus Database is out of date. > >No virus found in this message. >Checked by AVG - <http://www.avg.com>www.avg.com >Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >Internal Virus Database is out of date. >_______________________________________________ >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 *******************************

7 13

Re: [CCWG-ACCT] The Board's take on the Mission Statement
by Burr, Becky Dec. 17, 2015

Dec. 17, 2015

This is helpful Bruce. I think the language re: allocation and assignment of names in the root as a result of policies works. Also, I am relieved that the language re the permissible scope of ICANN policies is not a fundamental divide – at least from your perspective. Thank you. A couple of key points and questions: * Reading carefully, it appears that the Board comments with respect to the Mission Statement that rise to the level of a public interest objection are limited to “the contractual enforcement issues.” Can you confirm that this? * Even though this is cast as “the contractual enforcement issues,” I take it that the board actually objects to the provision that says: “ICANN shall not impose regulations on services that use the Internet’s unique identifiers, or the content that such services carry or provide.” [I make that assumption because I don’t know why the board would object to the following statement: "ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.”] Can you confirm this? * Could you attempt to be concrete about why the Board objects to the regulatory prohibition notwithstanding the following explanatory text, which you previously indicated is not objectionable: 1. The prohibition on the regulation of “content” is not intended to prevent ICANN policies from taking into account the use of domain names as identifiers in various natural languages. 2. The issues identified in Specification 1 to the Registry Agreement and Specification 4 to the Registrar Accreditation Agreement (the so-called “Picket Fence”) are intended and understood to be within the scope of ICANN’s Mission. A side-by-side comparison of the formulation of the Picket Fence in the respective agreements is attached for reference. 3. For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered. [ADDITIONAL SUPPLEMENTARY LANGUAGE AGREED TO BUT NOT IN 3RD DRAFT PROPOSAL: This means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission.] 4. The CCWG anticipates that the drafters may need to modify provisions of the Articles of Incorporation to align with the revised Bylaws. NOTE: Not a trick question Bruce, I’m really trying to identify a way forward. Although some of us were comfortable relying on a clear and limited Mission Statement, many – certainly most participants who expressed an opinion on this issue - felt that a clear prohibition on certain types of regulation was mandatory, particularly in light of the “legislative history” of this language (it appeared in both the first and second draft report, so its removal would be construed against the concept). To move the ball forward, we need to have a conversation that goes beyond the mere assertion that “ICANN is not a regulator.” Is there a formulation of the regulatory prohibition that the Board could accept, or is there additional explanatory text that would make the Board comfortable that the Bylaws drafters had sufficient direction to proceed. I am pressing because I have the sense that while we may not that far apart, we could really reach an impasse on this matter. Let’s not worry specifically about placement, but focus on the concept. Becky 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> From: Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Date: Thursday, December 17, 2015 at 4:13 AM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Board's take on the Mission Statement Hello Becky, The addition of “allocation and assignment of names” was intended to capture the role of putting names in the root zone including new gTLDs and IDN-ccTLDs.” I accept that this could be considered as part of “implementation of policies” = but it was trying to be more specific. If you are concerned about the language you could reword like: “coordinate the development and implementation of polices (including the allocation and assignment of names in the root zone as a result of those policies). “ Speaking personally I have no issue with also including the last two paragraphs in your note below which is really a limitation on what policies can be created and how they should be created. This text is really lifted from the registry and registrar agreements so ICANN has already committed to that. It is not something that we as a board directly discussed. Regards, Bruce Tonkin 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 Burr, Becky Sent: Thursday, 17 December 2015 3:00 AM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] The Board's take on the Mission Statement I have run a comparison between the Mission Statement with respect to names, which has been on the table since January of this year, and the Board’s proposed substitute. In doing so, I have set aside totally the difficult wording issues relating to regulatory prohibition and contracting authority. I am also setting aside, for the moment, Alan G’s concern regarding the bottom–up policy development language (which I believe is addressed through the contracting language). By any measure, the changes are significant. Because the fundamental role of the IRP is to ensure that ICANN stays within its Mission, the changes in the Mission statement directly impact the effectiveness of the “crown jewels” of this accountability exercise. I have asked Bruce to explain what is encompassed by "the allocation and assignment of names in the root zone” that is not covered by “coordination of the development and implantation of policies.” I encourage each of you to study the side-by-side comparison attached to determine for yourself whether the Board’s approach is consistent with the goals of clarifying ICANN’s limited Mission. [cid:image001.png@01D13907.5FF1EE20] 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>

2 1

TR: Board Briefing + Q&A to SO-AC-SG-C-RALO Leaders - 17 Dec 13:00 UTC
by Mathieu Weill Dec. 17, 2015

Dec. 17, 2015

Dear Colleagues, As announced in our call, a Board briefing is organized today regarding their comment to our Draft report, and none of the co chairs was able to attend. We have shared the following written input with the group of SO-AC-SG-RALO and thought it might be useful to the group as well. Best Thomas, Leon & Mathieu -----Message d'origine----- De : Mathieu Weill [mailto:weill@afnic.fr] Envoyé : jeudi 17 décembre 2015 13:15 Objet : RE: Board Briefing + Q&A to SO-AC-SG-C-RALO Leaders - 17 Dec 13:00 UTC All, As none of the CCWG co chairs can attend this briefing, the following is a quick update from us. There have been questions with respect to the next steps for the work of the CCWG. The questions were asked particularly in the light of the comments on our third report by the ICANN Board. Firstly, we would like to express our appreciation for the Board's thoughtful contributions and the efforts that were put into a comprehensive comment on numerous aspects of our report. As mentioned during the CCWG call earlier this week, the Board comments will be analyzed as other comments from Chartering Organizations and the community. Thus, the CCWG has not changed its approach to the next steps that need to be taken. Our report remains to be the basis for comments. As we previously announced, the CCWG is now awaiting feedback from the Chartering Organizations to then assess whether a supplemental draft will be required. Additionally, the CCWG will assess whether comments require the group to make changes to its recommendations and proactively reach out to the Chartering Organizations. We are reiterating this point to confirm to the Chartering Organizations that their potential statements of support will not extend to potential future changes that substantially change the recommendations. While we have asked the Chartering Oranizations to respond by December 21st, we know that some organizations need a few more days to provide feedback. Thus, we expect an assessment of all input to be conducted early January. It will be at that point in time when a decision on the requirement of a supplemental draft will be made. Finally, we would like to remind everyone that comments were requested particularly with respect to support or rejection of the CCWG recommendations. Issues or recommendations that relate to the implementation of these, shall be discussed an taken into consideration at a later stage. It is our impression that the issues raised by should be dealt with and at that stage. Best regards and have a fruitful call, Thomas, Leon & Mathieu CCWG co-chairs

4 4

Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
by Greg Shatan Dec. 16, 2015

Dec. 16, 2015

All, In reviewing the Third Draft Proposal, concerns have been raised within my constituency that the proposed Bylaw does more than replace an existing "majority" threshold with a new "2/3" threshold. The concern is that the proposed Bylaw introduces a "mandatory vote" by the Board in order to reject GAC Advice where the Bylaws do not currently require a Board vote. Further, there appears to be a concern that, if the Board does not take a vote and affirmatively reject a piece of GAC advice, then that GAC advice becomes binding on ICANN. These concerns stem from a reading of the draft Bylaw (new language in red): 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 Governmental Advisory Committee advice approved by a full Governmental Advisory Committee 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 of the Board, and tThe 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 current language of the Bylaw makes no reference to voting, only to the far more ambiguous "determines to take an action." As such, adding a reference to a vote can be seen to add a new element (aside from the introduction of a 2/3 threshold): the element of a bylaws-mandated vote. Similarly, the statement that GAC Advice can only be rejected by a vote of the Board can be read to state that if no such vote is taken (or if such vote is taken and fails) that the GAC Advice is then something ICANN is bound to follow. I don't think either of these things were intended by the CCWG. Whether they are misreadings of our draft language or unintended consequences of the drafting, this concern is troubling. If it is the intent of some of those drafting this language to force a vote where none is currently required, then that is even more troubling. I would appreciate some clarification on these matters that I can bring back to my group. I would also appreciate the CCWG considering a change in language to remove this ambiguity which is currently causing great consternation in my group. I suggest the language below. This m ore closely track s the language of the existing bylaw and avoid the use of the term "vote," with its potential unintended consequences: 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. If the Board determines to take an action that is not consistent with Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, such determination must be supported by two-thirds 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. I would appreciate your thoughts on this point and the revised language. Thank you. Greg

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FW: FY 16 Omnibus Appropriations bill extends IANA Transition Freeze, does not contain DOTCOM Act
by Phil Corwin Dec. 16, 2015

Dec. 16, 2015

The bill is now available at http://docs.house.gov/billsthisweek/20151214/CPRT-114-HPRT-RU00-SAHR2029-AM…<https://urldefense.proofpoint.com/v2/url?u=http-3A__docs.house.gov_billsthi…> It is expected to be passed by the House and Senate today, as US government funding expires at midnight tonight. Here is the text, at pp. 221-22; it is in Title V of Division B, General Provisions (Including Rescissions): SEC. 539. (a) None of the funds made available by 21 this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration, during fiscal year 2016, with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions. (b) Nothwithstanding any other law, subsection (a) of this section shall not apply in fiscal year 2017. I'm not quite sure what the effect of Section b is, as this is only an appropriations bill for FY 16 and next year Congress could extend the freeze into FY 17. Could the reference to "any other law" contemplate enactment of the DOTCOM Act? In any event, this extends the freeze on transfer of the IANA functions through September 30, 2016. The total bill is 2009 pages long. I have just reviewed Division O (Other Matters) but the DOTCOM Act is not in it, nor is it in the Department of Commerce provisions in Division B (NTIA section starts p. 115; all DOC provisions run from pp. 109-132). There is no other part of the legislation in which it would likely be placed. Of related interest, the Cybersecurity Act of 2015 has been included in the bill, constituting the whole of Division N. It remains to be seen whether news of the freeze extension will affect the timetable for Chartering Organization/community/general public review and delivery to the Board of the CCWG-ACCT Proposal. 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.

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Re: [CCWG-ACCT] FW: Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations
by David Post Dec. 16, 2015

Dec. 16, 2015

At 05:27 AM 12/16/2015, Bruce Tonkin wrote: >We had recommended splitting the text into a >simple mission statement followed by a scope of responsibility. > >The Mission Statement should be a short and >simple statement that conveys what ICANN's >purpose is and relates to the specific sector of >activities in which ICANN operates. Short and simple is always a good goal. But the problem is that the Mission Statement has to serve as an ENFORCEABLE limitation on ICANN's powers. It is the primary backstop that will ensure that ICANN does not stray into areas that it should not be in. If it is too "short and simple" it cannot serve that function at all, and we will be left with an entity that can do whatever it wants to do. To illustrate the point, why not make this the Mission Statement: "ICANN shall help coordinate Domain Name System operations"?? Short, simple, and accurate. But that Mission that will not be effective as an enforceable limitation on ICANN's powers, because just about anything it chooses to do it can be seen as "reasonably appropriate" for THIS mission. Not to repeat myself, but the CCWG Mission Statement embodied two principles which the Board would apparently like to see eliminated: the "picket fence" and the requirement for consensus policy-making. I may have missed it, but I don't recall seeing (a) any good reason they should both be eliminated, or (b) any substitute language the Board is proposing that would similarly incorporate these two principles into the corporation's structure. >BT: "Scope of Responsibilities: The Board >suggests that the purpose of this section is to >define ICANN's current scope of responsibilities >within its Mission and in service to its >Mission. It should describe what ICANN does, not >how it does it, and must not change ICANN's >existing role because that would have >consequences for ICANN's operations, >commitments, and responsibility to the Community." What is the point of doing this ? What good does it do - as a means of constraining ICANN's exercise of its powers in the future -- to say, as the Board proposal says, that "ICANN coordinates the allocation and assignment of names in the root zone of the DNS ..., and coordinates the operation and evolution of the DNS root name server system, ... and coordinates the allocation and assignment at the top--most level of IP and AS numbers ..., and collaborates with other bodies as appropriate to publish core registries ..."? What's the point of that? I would note that under the Board's proposal, ICANN would not even be bound to comply with that Statement of Responsibilities; the promise is just to act "in accordance with and only as reasonably appropriate for the Mission," which does not include the Statement of Responsibilities. Not that that would do much good, in any event - the responsibilities are so generally phrased ("coordinate" and "collaborate") that they can't really serve as useful limitations on anything the corporation decides to do. Nor does the Board intend for this to be an exclusive list of ICANN's responsibities - that is, there's nothing (unless I'm just missing it) that says that ICANN can't take on other "responsibilities" in the future. I still fail to see how the Board's comments and the CCWG proposal can be reconciled - or more importantly why they should be reconciled. 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 *******************************

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Fwd: [ccnso-members] Re: [ccnso-council] Board comments on CCWG Proposal
by Jordan Carter Dec. 15, 2015

Dec. 15, 2015

fyi. J ---------- Forwarded message ---------- From: Jordan Carter <jordan(a)internetnz.net.nz> Date: 15 December 2015 at 19:35 Subject: Re: [ccnso-members] Re: [ccnso-council] Board comments on CCWG Proposal To: Mike Silber <mike.silber(a)icann.org> Cc: Chris Disspain <ceo(a)auda.org.au>, ccNSO Members <ccnso-members(a)icann.org>, ccNSO Council <ccnso-council(a)icann.org>, ccTLD Community List < cctldcommunity(a)cctld-managers.org>, "cctldworld(a)icann.org" < cctldworld(a)icann.org> First off, I would like staff to make sure this reply goes to the whole of the lists involved. On the main point, see in line below: On 15 December 2015 at 04:35, Mike Silber <mike.silber(a)icann.org> wrote: > Let me add a very emphatic +1 to Chris’ comments and let me join him in > his offer to engage. > > I would also like to offer one example of a place where Chris and I were > very concerned: the veto rights in respect of the IANA (or what will be > post-transition IANA) budget: > > - The CCWG report gave the empowered community the power to veto the > IANA functions budget (see paragraph 149 on page 28). > - Now this concerns me as someone from the ccTLD world, as it seems > there would be a veto exercisable by parties who are not IANA customers, > over the IANA budget – potentially impacting the services IANA customers > can expect. (For example – money needs to be spent on IANA improvements. > The operational communities approve it. However non-operational communities > believe that money should rather be spent on an extra meeting, or more > travel support.) > - I was somewhat soothed by the suggestion (at 151) of two distinct > processes. > - However I examine the detailed annex (annex 2) and cannot find any > difference in the process between rejecting the ICANN budget and rejecting > the IANA budget. > - I suspect this is purely an oversight and has no more sinister > motivation – but right now this puts the IANA budget partly in the hands of > parties who are not IANA customers and I think that is not appropriate. > > I tried to raise this matter in the course of discussions about the use of this power. It seemed to me logical that the customer groups should decide re any IANA veto. But this idea got no traction. Fixing this now, of course, creates substantial delays. Unless we can agree that it would be adjusted in WS2. More broadly, Mike and Chris, can you untangle a confusion for me? ICANN has been pushing very hard to get this transition done and dusted. We in the CCWG leadership were told very emphatically that delays beyond late December would destroy the prospects of getting it done before September 2016. Both at LA and now with this comment, much less aggressively this time, the Board comments introduce delays into the process. Does ICANN want this done quickly (all the pushes we get in private), or does it want this done right? My preference is the latter. I have been prepared to go along with the former. Can you help tease this out? Many thanks Jordan > > - I am of the view that this oversight can be resolved quite easily > and the Board has made some suggestions how to do this. You may or may not > agree with the exact suggestions – but I think you will all agree that this > situation causes concern. > > I would really encourage you to review the board comments and test your > reaction: > > - You do not agree with the comment at all; > - You agree with the comment and the possible solution; or > - You agree with the comment but have a better / alternate solution. > > Please do this as soon as possible and let the CCWG have your reaction. > > Regards > > Mike > > On 14/12/2015 12:57, "Chris Disspain" <owner-ccnso-council(a)icann.org on > behalf of ceo(a)auda.org.au> wrote: > > Hello All, > > You will probably by now have seen that the Board has submitted some > comments in respect to the Third CCWG-Accountability Draft Proposal and an > accompanying letter from Steve Crocker. In case you haven’t seen these yet, > they are attached. > > I thought it was important, as a ccNSO elected member of the Board, to > write to you to explain the background to these comments and offer to > discuss them with you at your convenience. > > I am writing personally and not at the behest of the Board nor to provide > you with input/comment from the Board. These are my personal opinions about > where I think the Board is at, their motivation (and mine) for making the > comments and what some of the comments might mean. > > In my opinion, the Board is 100% supportive of the transition and filled > with admiration for the work and effort of those involved in the CCWG. > The Board believes that there are a number of areas of concern in the > report that need to be dealt with. I stress that these are concerns of > the Board as a whole. They are not concerns of staff that have simply been > agreed to by the Board but rather concerns that the Board has expressed. > Whilst the comment document has been drafted by staff (as has the draft > proposal from the CCWG) this has been done at the direction of the Board > and the full Board has unanimously endorsed the comments. > > Some of these areas of concern can be characterised as ‘might it be better > if’ areas but a small number are of higher concern. The Board has carefully > considered these and provided detailed comment together with suggestions > for dealing with the problem(s) that the Board perceives. There may be > other solutions to the problems and the Board is not tied to its suggested > solution. > > In my opinion, the Board believes that if these higher concern > recommendations (or parts thereof) are not dealt with then when the Board > applies the global public interest test, in accordance with its resolution > of 16 October 2014 ( > https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d) > there is a significant chance that the Board will find that some of those > recommendations do not meet that test. > > I fully endorse the Board comments and I believe that it is in all of our > best interests as ccTLD managers to take them into account. I encourage you > to carefully consider the CCWG recommendations and the comments of > the Board and to provide your input to the ccNSO Council. I fully respect > that some of you will not agree with all (or any!) of the comments of > the Board but hope that, given my role and my commitment to the ccNSO and > ccTLDs generally, you will understand that these comments are well > intentioned and made in an effort to solve real issues with the current > CCWG draft. > > I stress again that the Board is, in my opinion, 100% behind the > transition. However, the transition has to be 'done right' and ‘transition > at all costs’ is not an acceptable stance, in my view. I know the time line > is important but I would rather miss a deadline than not deal with the very > real concerns of a group of 19 experienced individuals who have been > nominated or elected to the Board to serve the ICANN community and to act > in their best interests. > > I will be delighted to answer any questions (on or off list) and to talk > to you one-on-one or as a group. I stand ready to do whatever it takes to > get a CCWG Final Report out to NTIA as soon as possible. > > Cheers, > > > Chris Disspain | Chief Executive Officer > > .au Domain Administration Ltd > > T: +61 3 8341 4111 | F: +61 3 8341 4112 > > E: ceo(a)auda.org.au | W: www.auda.org.au > > auDA – Australia’s Domain Name Administrator > > > > > -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet * -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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Re: [CCWG-ACCT] CCWG - ACCT - Recommendation 4 - Community Powers
by Aikman-Scalese, Anne Dec. 15, 2015

Dec. 15, 2015

If the Chairs want to certify the legal questions, I think these would be: 1. Is it possible for a Director to bring suit for libel, slander, or other causes of action during the community enforcement removal process or thereafter based on the “written justification” laid out by the SO/AC and/or oral statements made during the required conference calls in the Community enforcement process? 2. Could a Director seek injunctive and/or declaratory relief to interrupt the community enforcement process toward removal? If so, would SOs/ACs and officers who are sued be required to mount their own defense? How expensive would this be? 3. Is there insurance coverage available for SOs/ACs and their officers in relation to possible suit by a director in jeopardy of being removed or who has been removed from the Board? If so, how expensive is it? These are not questions about how likely the action is to occur. That does not really figure into the “chilling effect” that is of concern when the officer of an SO or AC is drafting the “written justification” and/or encouraging open discussion in the required (and recorded for posterity) conference call. Anne [cid:image001.gif@01D13672.C22150F0] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman(a)lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: Gregory, Holly [mailto:holly.gregory@sidley.com] Sent: Monday, December 14, 2015 1:14 PM To: Aikman-Scalese, Anne; 'Steve DelBianco' Cc: gregshatanipc(a)gmail.com; 'Phil Corwin'; cwilson(a)21cf.com; Rosemary Fei (rfei(a)adlercolvin.com) Thomas Rickert; ipc_accountabilityct(a)icann.org; 'Gomes, Chuck' (cgomes(a)verisign.com) Rosemary Fei (rfei(a)adlercolvin.com) Sidley ICANN CCWG; ICANN(a)adlercolvin.com Subject: RE: CCWG - ACCT - Recommendation 4 - Community Powers We must await further direction from the co-chairs whether this is something that they would like research on under California law HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> From: Aikman-Scalese, Anne [mailto:AAikman@lrrlaw.com] Sent: Monday, December 14, 2015 3:03 PM To: Gregory, Holly; 'Steve DelBianco' Cc: gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; 'Phil Corwin'; cwilson(a)21cf.com<mailto:cwilson@21cf.com>; Rosemary Fei (rfei(a)adlercolvin.com<mailto:rfei@adlercolvin.com>); Thomas Rickert; ipc_accountabilityct(a)icann.org<mailto:ipc_accountabilityct@icann.org>; 'Gomes, Chuck' (cgomes(a)verisign.com<mailto:cgomes@verisign.com>) Subject: RE: CCWG - ACCT - Recommendation 4 - Community Powers Holly – I would tend to agree if in fact the SO or AC could remove a director without cause and did not have to state its reasons, but the community process requires this and it is discussed fully throughout four steps of the Community process to director removal. The SO or AC must state “written justification”, to which the Board has now added its “Clear Rationale” comment. One need only look at the differences of opinion that arose with respect to .africa to understand that a stated reason for removal which has a “written justification” or Clear Rationale from the SO/AC standpoint could easily form the basis of a suit by a director. It does not require much by way of theory for a plaintiff’s lawyer to allege claims of libel and even irreparable harm. The SO/AC would likely need legal advice just to draft the “written justification.” Again, I do not think indemnification represents a reasonable risk to ICANN as a corporation. The risk should be limited by contract when directors take office. Directors should not be suing the SO/AC and/or its officers for removal. Otherwise, the ultimate enforcement mechanism in the Sole Designator Model is not effective. You may not have seen this fact situation occur. That does not mean it would not occur at ICANN. We have some fairly feisty folks in our midst. The risk of suit is of course much higher than the risk of success on the merits. I would say it is hard to measure in dollars the potential damage to an individual associated with being removed from the ICANN Board with “written justification”. It could be a pretty good strategy for a director who wants to interrupt the Community Enforcement process. He or she may also have the full support of other Directors willing to testify. Anne [cid:image001.gif@01D13672.C22150F0] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman(a)lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.lrrlaw.com_&d=CwMGa…> From: Gregory, Holly [mailto:holly.gregory@sidley.com] Sent: Monday, December 14, 2015 12:43 PM To: Aikman-Scalese, Anne; 'Steve DelBianco' Cc: gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; 'Phil Corwin'; cwilson(a)21cf.com<mailto:cwilson@21cf.com>; Rosemary Fei (rfei(a)adlercolvin.com<mailto:rfei@adlercolvin.com>); Thomas Rickert Subject: RE: CCWG - ACCT - Recommendation 4 - Community Powers Anne, My sense is that the concerns you raise present an extremely low risk of suit – and hence low risk of indemnification and cost of indemnification. In my many years of corporate governance practice I cannot recall a lawsuit for libel or defamation by a director in an instance of removal. But we can research under California law if the co-chairs certify. Also, I am not aware of any theory of libel or defamation that would give rise to injunctive relief delaying such removal where the designator has the right to remove with or without cause as here. Again, we have not researched this specific point under California law but will do so if certified. Holly HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> f the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

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holiday cheer
by Mueller, Milton L Dec. 15, 2015

Dec. 15, 2015

What with the Board's comments, it appears that we will be working on the proposal all through the Western world's holiday season. Some might grumble, but I myself choose to respond with true holiday spirit. And what could be more cheery than a Christmas carol? I'm thinking of classic holiday songs like: "I'm dreaming of an AdobeConnect Christmas." But here is one especially tailored to the CCWG. It's called "Working in the ICANN Wonderland," and if you don't know the melody,you can hear the original, pre-ICANN tune here: https://www.youtube.com/watch?v=o45DZzfe2LU&feature=youtu.be&t=34s WORKING IN THE ICANN WONDERLAND Alarm bell rings, are you listenin'? Inadvertent omission... The proposal's a mess, we're all in distress Working in the ICANN wonderland Oh the board gets indigestion, when we try to get inspection They want to be free, of accountability, Working in the ICANN wonderland In the meantime we can write some bylaws, then pretend that we have got a clue They'll say "are they accountable"? We'll say "No Man!" But we can do the job in Workstream Two! Later on, we'll conspire, to set human rights on fire Let's not be afraid, of the plans that we made, Working in the ICANN wonderland Happy holidays, all! --MM

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #72 - 15 December
by Brenda Brewer Dec. 15, 2015

Dec. 15, 2015

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #72 - 15 December will be available here: https://community.icann.org/x/VIJlAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items Action: CCWG to send recommendations and proposals for work during ICANN55 to the mailing list by 16 December (end of day UTC). Action: Liaise with ICANN on activity PICS and reframe the question for legal counsel in light of that input. Action: CoChairs to relay questions from Kavouss through Board liaison 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. 1. Welcome * Cheryl & Barrack on audio only at the moment. 2. Follow-up discussion on Marrakech meeting * Questions around what types of meetings would be held and whether or not there will be travel support. * Three sessions during the ICANN meeting have been tentatively planned. * Discussion on what topics need to be addressed in Marrakesh and whether or not a meeting outside of the ICANN meeting is needed. * According to our timeline, the WS1 report will be with NTIA by the time ICANN 55 starts * One potential topic for the meeting could be reviewing the draft Bylaws. Another is WS2. Action: CCWG to send recommendations and proposals for work during ICANN55 to the mailing list by 16 December (end of day UTC). 3. Clarification of potential request to lawyers re: PICs and mission statement * Work requested for Counsel to review * Ask ICANN legal if there are examples on list * Legal counsel concerned it does not have the specificity yet * Question will be certified or not based on examples from ICANN legal Action: Liaise with ICANN on activity PICS and reframe the question for legal counsel in light of that input. 4. Update on CWG Draft Comment * CWG-Stewardship will discuss report on call today * There are questions raised on: 1) whether IRP clearly addresses needs of CWG-Stewardship; 2) whether limitations of a removal process for Director is adequately addressing CWG-Stewardship requirements; 3) concerns about delays of escalation processes; 4) concerns about level of detail on IANA functions budget question * Flag section of report you identify as problematic in an email to staff for proofreader 5. Update on SO/AC endorsement timeline * Document from ALAC to review * Request to clarify that Chartering Organizations should comment in early January * The public comment period is intended to receive a heads-up from Chartering Organizations on problematic areas * ASO will hold call today and plans to review Board comments on Mission and IANA Budget. Appeals mechanisms also shortlisted as area that raises concerns. The rest should not be an issue. * ccNSO council call planned. Outreach and activities planned. Concerns on efficiency of process were raised. * SSAC is drafting response that reflects limited role. * GNSO will discuss on 17 Dec - comments are under development. Plan is to determine if there are issues for approval * GAC has virtual meeting on Dec 18th and a process leading to endorsement decision has been set out by GAC Chair. * Clear that if major issues/changes, it wll need to be resubmitted to Chartering Organizations. No risk that Chartering Organizations approve report without knowledge of changes 6. Update on Board interactions * Co-Chairs welcome attending any meetings you wish to schedule * Co-Chairs attended call with ICANN Board without knowledge of Board comments. We received outline of comments on call, reminded Board of timeline and requested (as with Chartering Organizatons) to leave details for implementation. Board was asked to limit comments * SO/AC leaders call on Thursday which Board plans to attend * Board comments will be handled with same care as comments received from ICANN community * Board will determine whether any of our recommendations is against global interest. if 2/3 of Board determines it is, recommendation will not be passed and the Board will engage with the CCWG-Accountability to fix this. * Board vote will reflect community input and final report from CCWG-ACCT. Action: CoChairs to relay questions from Kavouss through Board liaison 7. Closing remarks CCWG-ACCT is committed to making this work.

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FW: Expression of Interest for IOT-IRP
by Brenda Brewer Dec. 15, 2015

Dec. 15, 2015

Dear all, Forwarding this Expression of Interest to the full list for the record on behalf of Olga Cavalli. Best, Brenda From: Olga Cavalli [mailto:olgacavalli@gmail.com] Sent: Monday, December 14, 2015 3:20 PM To: Brenda Brewer <brenda.brewer(a)icann.org>; acct-staff(a)icann.org Subject: Expression of Interest for IOT-IRP Dear Brenda, this is my EOI, as requested. Best regards Olga I am involved in ICANN since 2006 and have been active in both the GAC and the GNSO. I have always worked towards a balanced participation of all stakeholders with a special interest in a better representation of the developing countries in the different ICANN Advisor committees and Supporting Organizations. I am also a universitiy teacher and organize several capacity building activities related with Internet Governance and Domain Names, focused in Latin America and the Caribbean. I am a PHD in Business Direction, MBA, Master in Telecommunications Regulation and Electronic and Electric Engineer. I speak Spanish, English, Portuguese and German, and can understand French and Italian. Summary of my professional experience: GAC Vicechair ICANN - Argentina Representative ISOC Argentina Chapter - President Former MAG Member - Advisor United Nations Secretary General - IGF (2007 - 2014) University teacher at Universidad de Buenos Aires Argentina representative in the WSIS Second Phase, Tunis (2005) Member of the Special Commission appointed by the Government of Argentina for the Cybercrime Law Member of the commission that developed the National Digital Agenda of Argentina. Main activities in the GAC: * GAC Vicechair, Argentina Representative. * Chair of the GAC working group of protection of geographic names in new rounds of new gTLDs * Chair of the GAC working group on participation of Goverments in the Nomcom Previous ICANN activities: * GNSO Vicechair and GNSO Council member * Chair of the Constituency Operations Working Team in the GNSO restructuring process * Chair of the the Outreach Task Force of the GNSO. * GNSO liaison for the ccNSO * GNSO representative in the Geographic Regions Review Working Group. * Chair of the GNSO Prioritization Working Team. * Chair of the GNSO Travel Drafting Team. * Member of the Vertical Integration Working Team. * Member of the Operations Steering Committee OSC (Alternate Chair). * Member of the Planning Team of the GNSO Improvements Process. * Member of the GNSO Comments on the IDNC Report drafting team. * GNSO representative in the IDN PDP Working Group. Looking forward to serving on the IOT-IRP.

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Draft ALAC Comments on the CCWG ACCT 3rd Proposal
by Alan Greenberg Dec. 15, 2015

Dec. 15, 2015

Attached please find the ALAC draft comments on the CCWG 3rd Proposal. This document addresses Recommendations 2, 4, 5, 6 and 7. At this point the ALAC is fully supporting Recommendations 1, 3 and 8-12. This document is based upon deliberations of the WG advising the ALAC and is still subject to modification by that group and by the ALAC based on comments from our entire community. Alan

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Resolution of Mission Language related to regulation and contract
by Burr, Becky Dec. 14, 2015

Dec. 14, 2015

Based on our call earlier today, I have modified the side-by-side comparison of the Mission Statement (comparing current Bylaws, 2nd Draft Proposal, and proposed 3rd Draft Proposal language) to reflect the 2nd Draft Proposal language plus the contract language as follows: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not impose regulations on services that use the Internet’s unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in furtherance of its Mission. I have added the following Note per our discussion: Note to drafters: In crafting proposed Bylaws language to reflect this Mission Statement, the CCWG wishes the drafters to reflect the following considerations: 1. The prohibition on the regulation of “content” is not intended to prevent ICANN policies from taking into account the semantic meaning of domain names. 2. The issues identified in Specification 1 to the Registry Agreement and Specification 4 to the Registrar Accreditation Agreement (the so-called “Picket Fence”) are intended and understood to be within the scope of ICANN’s Mission. A side-by-side comparison of the formulation of the Picket Fence in the respective agreements is attached for reference. The PDF (as well as the PDF of the Picket Fence language) is attached. Please note also that I have added a general note to the effect that we expect the the Bylaws drafters may need to modify the Articles of Incorporation to align with the substantive changes to the Bylaws. Becky 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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Re: [CCWG-ACCT] CCWG - ACCT - Recommendation 4 - Community Powers
by Alan Greenberg Dec. 14, 2015

Dec. 14, 2015

The ALAC has been raising this issue multiple times with no answers. Another related question is whether we can require a binding pre-seating letter saying that the director waives all rights to sue for defamations (or whatever) related to the removal process. Alan At 14/12/2015 03:29 PM, Aikman-Scalese, Anne wrote: >If the Chairs want to certify the legal questions, I think these would be: > >1. Is it possible for a Director to bring >suit for libel, slander, or other causes of >action during the community enforcement removal >process or thereafter based on the âwritten >justificationâ laid out by the SO/AC and/or >oral statements made during the required >conference calls in the Community enforcement process? > >2. Could a Director seek injunctive and/or >declaratory relief to interrupt the community >enforcement process toward removal? If so, >would SOs/ACs and officers who are sued be >required to mount their own defense? How expensive would this be? > >3. Is there insurance coverage available >for SOs/ACs and their officers in relation to >possible suit by a director in jeopardy of being >removed or who has been removed from the Board? If so, how expensive is it? > >These are not questions about how likely the >action is to occur. That does not really >figure into the âchilling effectâ that is of >concern when the officer of an SO or AC is >drafting the âwritten >justificationâ and/or encouraging open >discussion in the required (and recorded for posterity) conference call. >Anne > >[] > >Anne E. Aikman-Scalese, Of Counsel >Lewis Roca Rothgerber LLP >One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 >(T) 520.629.4428 | (F) 520.879.4725 ><mailto:AAikman@lrrlaw.com>AAikman(a)lrrlaw.com | www.LRRLaw.com > > > >From: Gregory, Holly [mailto:holly.gregory@sidley.com] >Sent: Monday, December 14, 2015 1:14 PM >To: Aikman-Scalese, Anne; 'Steve DelBianco' >Cc: gregshatanipc(a)gmail.com; 'Phil Corwin'; >cwilson(a)21cf.com; Rosemary Fei >(rfei(a)adlercolvin.com) Thomas Rickert; >ipc_accountabilityct(a)icann.org; 'Gomes, Chuck' >(cgomes(a)verisign.com) Rosemary Fei >(rfei(a)adlercolvin.com) Sidley ICANN CCWG; ICANN(a)adlercolvin.com >Subject: RE: CCWG - ACCT - Recommendation 4 - Community Powers > >We must await further direction from the >co-chairs whether this is something that they >would like research on under California law > >HOLLY GREGORY >Partner > >Sidley Austin LLP >+1 212 839 5853 ><mailto:holly.gregory@sidley.com>holly.gregory(a)sidley.com > >From: Aikman-Scalese, Anne >[<mailto:AAikman@lrrlaw.com>mailto:AAikman@lrrlaw.com] >Sent: Monday, December 14, 2015 3:03 PM >To: Gregory, Holly; 'Steve DelBianco' >Cc: ><mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com; >'Phil Corwin'; ><mailto:cwilson@21cf.com>cwilson(a)21cf.com; >Rosemary Fei >(<mailto:rfei@adlercolvin.com>rfei(a)adlercolvin.com) >Thomas Rickert; ><mailto:ipc_accountabilityct@icann.org>ipc_accountabilityct(a)icann.org; >'Gomes, Chuck' (<mailto:cgomes@verisign.com>cgomes(a)verisign.com) >Subject: RE: CCWG - ACCT - Recommendation 4 - Community Powers > >Holly I would tend to agree if in fact the SO >or AC ccould remove a director without cause and >did not have to state its reasons, but the >community process requires this and it is >discussed fully throughout four steps of the >Community process to director removal. The SO >or AC must state âwritten justificationâ, to >which the Board has now added its âClear Rationaleâ comment. > >One need only look at the differences of opinion >that arose with respect to .africa to understand >that a stated reason for removal which has a >âwritten justificationâ or Clear Rationale >from the SO/AC standpoint could easily form the >basis of a suit by a director. It does not >require much by way of theory for a >plaintiffâs lawyer to allege claims of libel >and even irreparable harm. The SO/AC would >likely need legal advice just to draft the âwritten justification.â > >Again, I do not think indemnification represents >a reasonable risk to ICANN as a corporation. The >risk should be limited by contract when >directors take office. Directors should not be >suing the SO/AC and/or its officers for removal. >Otherwise, the ultimate enforcement mechanism in >the Sole Designator Model is not effective. > >You may not have seen this fact situation >occur. That does not mean it would not occur at >ICANN. We have some fairly feisty folks in our >midst. The risk of suit is of course much >higher than the risk of success on the >merits. I would say it is hard to measure in >dollars the potential damage to an individual >associated with being removed from the ICANN >Board with âwritten justificationâ. It >could be a pretty good strategy for a director >who wants to interrupt the Community Enforcement >process. He or she may also have the full >support of other Directors willing to testify. >Anne > >[] > >Anne E. Aikman-Scalese, Of Counsel >Lewis Roca Rothgerber LLP >One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 >(T) 520.629.4428 | (F) 520.879.4725 ><mailto:AAikman@lrrlaw.com>AAikman(a)lrrlaw.com | www.LRRLaw.com > > > >From: Gregory, Holly >[<mailto:holly.gregory@sidley.com>mailto:holly.gregory@sidley.com] >Sent: Monday, December 14, 2015 12:43 PM >To: Aikman-Scalese, Anne; 'Steve DelBianco' >Cc: ><mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com; >'Phil Corwin'; ><mailto:cwilson@21cf.com>cwilson(a)21cf.com; >Rosemary Fei >(<mailto:rfei@adlercolvin.com>rfei(a)adlercolvin.com) Thomas Rickert >Subject: RE: CCWG - ACCT - Recommendation 4 - Community Powers > >Anne, My sense is that the concerns you raise >present an extremely low risk of suit and >hence low risk of indemnificcation and cost of >indemnification. In my many years of corporate >governance practice I cannot recall a lawsuit >for libel or defamation by a director in an >instance of removal. But we can research under >California law if the co-chairs certify. Also, >I am not aware of any theory of libel or >defamation that would give rise to injunctive >relief delaying such removal where the >designator has the right to remove with or >without cause as here. Again, we have not >researched this specific point under California >law but will do so if certified. Holly > >HOLLY GREGORY >Partner > >Sidley Austin LLP >+1 212 839 5853 ><mailto:holly.gregory@sidley.com>holly.gregory(a)sidley.com > >f the intended recipients, and is covered by the >Electronic Communications Privacy Act, 18 U.S.C. Â§2510-2521. > > >---------- > >This message and any attachments are intended >only for the use of the individual or entity to >which they are addressed. If the reader of this >message or an attachment is not the intended >recipient or the employee or agent responsible >for delivering the message or attachment to the >intended recipient you are hereby notified that >any dissemination, distribution or copying of >this message or any attachment is strictly >prohibited. If you have received this >communication in error, please notify us >immediately by replying to the sender. The >information transmitted in this message and any >attachments may be privileged, is intended only >for the personal and confidential use of the >intended recipients, and is covered by the >Electronic Communications Privacy Act, 18 U.S.C. Â§2510-2521. > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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