February 2015 - Accountability-Cross-Community

CCWG mailing list summary,
by Adam Peake Feb. 3, 2015

Feb. 3, 2015

Hi everyone. Summary of list discussion Jan 23-29 attached. These have been sent to the expert advisors. Please pass along to your organizations if useful. Best, Adam

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Regarding managing costs of filing objections under any new or revised accountability mechanisms
by Bruce Tonkin Feb. 3, 2015

Feb. 3, 2015

Hello Edward, >> One negative aspect of the California Corporations Code in this regard is the possibility of a bond of up to $50,000 being required by the court to pursue a derivative action (California Corporations Code §5710 ). This highlights an issue we are going to have to face in constructing an effective accountability scheme: affordability. Our current accountability structure falls flat in this area, with access to an IRP being effectively denied to those without extensive resources. This limits the ability of small businesses, nonprofits and many individual registrants to hold ICANN accountable for it's actions. We need to do better in this area as we transform ICANN into a true model of accountable corporate governance and, working together, I'm sure we will. Yes – cost is certainly an issue. This was of concern to the Board after the .xxx process, and some of the changes to the process were intended to reduce the costs to both parties in the dispute. There were a couple of ideas that were tried in the new gTLD dispute process: (1) Was the idea of an independent objector From: http://newgtlds.icann.org/en/applicants/agb/objection-procedures-04jun12-en… The budget for the independent objector included: “Budget and Funding – The IO’s budget would comprise two principal elements: (a) salaries and operating expenses, and (b) dispute resolution procedure costs – both of which should be funded from the proceeds of new gTLD applications. As an objector in dispute resolution proceedings, the IO is required to pay filing and administrative fees, as well as advance payment of costs, just as all other objectors are required to do. Those payments will be refunded by the DRSP in cases where the IO is the prevailing party. In addition, the IO will incur various expenses in presenting objections before DRSP panels that will not be refunded, regardless of the outcome. These expenses include the fees and expenses of outside counsel (if retained) and the costs of legal research or factual investigations.” (2) Allowance was made to cover the costs of ALAC or an individual government filing an objection " Funding from ICANN for objection filing fees, as well as for advance payment of costs (see subsection 3.4.7 below) is available to the At-Large Advisory Committee (ALAC). Funding for ALAC objection filing and dispute resolution fees is contingent on publication by ALAC of its approved process for considering and making objections. At a minimum, the process for objecting to a gTLD application will require: bottom-up development of potential objections, discussion and approval of objections at the Regional At-Large Organization (RALO) level, and a process for consideration and approval of the objection by the At-Large Advisory Committee. Funding from ICANN for objection filing fees, as well as for advance payment of costs, is available to individual national governments in the amount of USD 50,000 with the guarantee that a minimum of one objection per government will be fully funded by ICANN where requested. ICANN will develop a procedure for application and disbursement of funds." The CCWG may give consideration to similar funding mechanisms where a bottom-up community process is used to formally file an objection under an accountability mechanism related to whether ICANN has followed its bylaws etc. Like any of these mechanisms I think there needs to be reasonable threshold before effectively the community should be paying the costs of an objection. Regards, Bruce Tonkin

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Requirements based on latest discussions
by Mathieu Weill Feb. 3, 2015

Feb. 3, 2015

Dear Colleagues, Over the last 10 days, several threads took place discussing member or delegate options, including very relevant insights and ideas. At the same time, our Work Parties 1 & 2 are just getting formed, so I felt we were running the risk of not making the most of these discussions. I have created a wiki page in an attemps to sum up, in terms of requirements, the ideas that were exchanged in these threads, and that should form an input to WP1 & WP2. I have probably missed some of the ideas exchanged, and maybe was not able to capture some of these right. But I would suggest we try to elaborate on this, and then hand this on to the WPs. Please feel free to add & comment. This is the link to the doc : https://community.icann.org/x/JwQdAw Best, -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Adobe Connect Hands On Session at ICANN Singapore TechDay
by Dr Eberhard W Lisse Feb. 3, 2015

Feb. 3, 2015

Hi, we shall have us an Adobe Connect Hands on session over lunch (13:00) on Monday at TechDay ICANN Singapore in the Olivia Room thanks to ICANN IT staff. In particular would I like to make the feature known that one can interact with the conference call bridge by way of "connecting audio". This is helpful for those who find themselves in a situation of poor telephone reachability but with acceptable Internet connectivity as a fail-safe. I would appreciate if you could circulate this to lists and individuals who you think may benefit of this session. greetings, el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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The big test of effective accountability
by Kieren McCarthy Feb. 3, 2015

Feb. 3, 2015

Hello all, I've been giving a lot thought to effective accountability of ICANN and came across an idea that I don't think has been properly considered and which may make the difference between getting it right this time or spending the next decade fighting over yet more iterations of more structures and processes. And that is: human judgement. Namely that we have to acknowledge and agree upon and protect the concept of human judgement within accountability of ICANN. Currently ICANN is a slave to process and legal judgement. Everything goes first through process. If one process fails, there is another process to go through. If that fails, another process. If you run out of processes, you create a new process (as happened most famously with the ICM Registry independent review win, and with the GAC advice / ICANN Board impasse). Tied in with this process-over-decision approach is the fact that everything goes down a legal and legalistic route. The further down a path something goes - which almost always means that a wrong decision has been made - the more legalistic it becomes. Pretty soon the actual point and argument is almost entirely lost. This is clear in minutes of Board meetings in ICANN. As the group approaches an actual decision, the information around it, perversely, grows shorter and more vague. This is solely because of the lawyer mindset. What should happen is that information becomes clear and more plentiful. This legalistic approach also rapidly becomes prosecutorial. Rather than talking through a compromise or reaching understanding between parties it becomes more and more of a fight. ICANN corporate grows increasingly aggressive; the other side either drops out or is forced to fight to the bitter end. The end result is that everyone loses trust in ICANN. It is seen to be protecting only itself rather than looking out for the broader public interest. Just look at the recent Reconsideration Committee decision over dot-gay. Yes, it has asked for a re-evaluation but on the most narrow terms. Nearly all of dot-gay's complaints were dismissed in purely legalistic terms, rather than human judgement. The process was followed. Therefore it is legally justifiable. Therefore we will not consider anything outside of that because it might represent a legal threat. But if you take the legal goggles off, the dot-gay community decision was clearly a poor one. And so it should be possible to look at what happened and say: there was a mistake here, let's fix it. It gets to the point where ICANN is afraid to admit mistakes because it sees everything in terms of legal risk. The tail waking the dog. This also happened to an absurd degree with dot-inc, dot-llc and dot-llp - where the company had to go and get an emergency panelist to force ICANN to halt the auction for the domains while its complaints were considered. This is what happens if you do not allow for human judgement in a process - it becomes increasingly difficult and rancorous and legal. I would argue that legal arguments should be used only where human communication has failed to achieve resolution. But in ICANN, the legal approach comes first and as a result any attempt to achieve human communication is quickly excluded. And before all the lawyers start jumping in: the legal system itself has huge in-built (and protected) human judgement systems. Juries are the best example. They can listen to legal arguments, they can even be directed by judges, but ultimately they get to made a human decision based on their own considerations (and biases). Judges also are hugely human in their judgement. They decide issues based on what they think of the defendant - and often the lawyers. The problem with ICANN is we have the worst of both worlds. The Board sits as the judge and jury. There is very little human element of judgement before the case ends up in a legal process, and there is almost no human element within that legal process. So if we want to see what I think will look like real accountability to the internet community, it will be to build - and protect - human processes, where people are get to make decisions using the facets of intuition, reason, compassion and understanding. Rather than view everything as a threat to be defended against, ICANN needs to view its community as exactly that - a community. My two (six) cents. Kieren

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Notes-Recordings-Transcript links for CCWG ACCT #9 27 January 19:00 UTC
by Brenda Brewer Feb. 2, 2015

Feb. 2, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT #9 call on 27 January will be available here: https://community.icann.org/pages/viewpage.action?pageId=51414998 Notes 1/27: Audio-only -- Jonathan Zuck Please contact Grace if you need help with your SOI CWG update & joint statement * Chairs' Statement out of F2F (published on 23 January): <https://www.icann.org/news/announcement-2015-01-23-en> https://www.icann.org/news/announcement-2015-01-23-en * Joint Statement published on 26 January: <https://www.icann.org/news/announcement-2015-01-26-en> https://www.icann.org/news/announcement-2015-01-26-en * CWG reponse to "Accountability Issues" Document has been sent to Avri for final check before sending * Response is public and can be passed on WS1 requirements : organizing further work Two groups (mailing lists are set up): * WP1: Review & Redress (coordinated by Becky Burr). * WP2: Community Empowerment (coordinated by Jordan Carter) Two key deliverables for WP1 and WP2: * Scoping document based on WS1 requirements coming out of Frankfurt * Identification of key underlying issues to discuss such as composition, decision making methodologies (threshold, consensus, ...), standing ground, standards of review, cost, delays, ... * When those are defined, then the group can move to developing list of questions for legal advice detailing expected requirements, and asking for proposed mechanisms, in the form "how can we... ?" Action: send out Call for Volunteers. Please send a note to Grace if you would like to volunteer. Legal Advice * Legal Advice subteam also has a mailing list and has started to work based on CWG document. * The timeline that we are working with is very aggressive. In Frankfurt, we discussed that we would get initial response from ICANN legal as we develop our questions document. * No deviance from the path discussed in Frankfurt., * CCWG will attempt as an ideal to use the same firm as used by the CWG, although scoping documents will be different. * So as not wait for the firm to be selected, or wait for the scoping document to be finalized, the first step is to ask for advice from ICANN legal team on a board set of initial questions to help the CCWG understand if it is on a useful track. This will be checked by the external firm.. Contingencies : organising further work (inc. feedback from Board committee) * Agreed on a list of 21 contingencies. Agreed to provide additional analysis to these by responding to a list of questions, after discussion of an appropriate lists if questions. * Request to the Board Risk Committee of the contingencies they use as part of their risk management, a communication has been received from the committee. Comparison shows a couple of items to be updates. Next steps to answer the various questions: * Are there existing remedies in place ? How robust are these remedies ? * Could addressing the contingency be achieved through amending existing accountability mechanisms or is creating new ones necessary ? * How relevant is the threat to the transition of the IANA stewardship ? ie how does the transition affect the likelihood of the threat, or the severeness of the consequences ? Reframe the questions and ask whether contingencies from Board Risk are either in WS1 or WS2 based on our Charter. Action: Add a specific contingency part to the communication materials that we'll edit in Singapore. Timeline update Berry Cobb explains timeline 40 days of Public Comment Outreach plan for Singapore Adam Peake presents * Slide deck or briefing document? * Sent a summary of mailing list discussions sent to the CCWG list * Please let Adam know if you would like a briefing document and we'll see how we can assist. Action: prepare a short summary and slide deck that CCWG can share during next week's meeting and use for Singapore. Action: Adam to talk to GAC Chair and Staff Support to address timing. AOB * Timing of F2F in March (Kavouss) Closing remarks * Outstanding progress in Frankfurt, but still a lot to do in short time. * Press on with various work groups * Elaborate documents and build on substance * Next Call: 12:00 UTC on Tuesday 3 Feb Action Items Action: Add a specific contingency part to the communication materials that we'll edit in Singapore. Action: prepare a short summary and slide deck that CCWG can share during next week's meeting and use for Singapore. Action: Adam to talk to GAC Chair and Staff Support to address timing.

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WP1 & WP2
by Grace Abuhamad Feb. 2, 2015

Feb. 2, 2015

Dear all, Here below are the lists of names in WP1 and WP2 as well as their Wiki page. If you'd like to volunteer for either of these groups, please contact Brenda (cc'ed). Work Party 1 Community Empowerment https://community.icann.org/display/acctcrosscomm/WP1+--+Community+Empowerme nt Coordinator/Rapporteur: Jordan Carter (member) Volunteers: * Adebunmi Akinbo (participant) * Camino Manjon-Sierra (participant) * Guru Acharya (participant) * Matthew Shears (participant) * Pedro Ivo Ferraz De Silva (participant) * Robin Gross (member) * Steve DelBianco (member) * Tijani Ben Jemaa (member) * Konstantinos Komaitis (observer) Work Party 2 Review & Redress https://community.icann.org/display/acctcrosscomm/WP2+--+Review+and+Redress Coordinator/Rapporteur: Becky Burr (member) * Bruce Tonkin (member) * Camino Manjon-Sierra (participant) * Carlos Raul Gutierrez (participant) * Cristofer Granillo (observer) * David McAuley (participant) * David Maher (participant) * Erika Mann (observer) * Guru Acharya (participant) * Jon Nevett (participant) * Jordan Carter (member) * Lars Erik Forsberg (participant) * Konstantinos Komaitis (observer) * * Paul Rosenzweig (participant) * Robin Gross (member) Best, Grace

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Call #10 - Proposed Agenda
by Alice Jansen Feb. 2, 2015

Feb. 2, 2015

Dear all, Below you will find a proposed agenda in preparation for your call #10 - Tuesday, 3 February - 12:00-14:00 UTC 1. Welcome & roll call & SOI 2. Update from interactions with CWG 3. Preparing Singapore a. Reminder of sessions / logistics b. Agenda /topics for Board meeting c. Review of engagement material provided before meeting 4. Update WP1/WP2 a. By rapporteurs b. Update stress test WP c. Ideally, discussion around first set of answers to the contingency questions 5. Legal advice update 6. AOB 7. Closing remarks Thanks - Best regards Alice

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CCWG and ICANN Board, Sunday 8 February, 11:00 - 12:00 SGT
by Adam Peake Feb. 2, 2015

Feb. 2, 2015

Hi everyone, The CCWG meeting with the ICANN Board has been set for Sunday 8 February, 11:00 - 12:00 SGT (03:00 - 04:00 UTC). Please save the time on your schedules. The usual remote access facilities will be provided, details will be distributed shortly. Co-chairs have asked that we discuss items for the agenda with the Board during tomorrow's CCWG call. Thank you, Adam

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Regarding a standing panel for the independent review of Board actions
by Bruce Tonkin Feb. 2, 2015

Feb. 2, 2015

Hello All, With respect to clause of the bylaws: " 6. There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. A Chair of the standing panel shall be appointed for a term not to exceed three years. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding." The Board approved the bylaw change and requested that the standing panel be established. The bylaws provide for the situation where it is not YET established, but that doesn't mean that we should not have it established as others have pointed out. There has been no board decision not to establish the panel . I have heard information from a staff member that there were some difficulties getting the panel established through the current IRP provider. I have asked for an agenda item for the Board Governance committee meeting next week for the staff to provide an update, and I will then provide an update to this group on: - the reasons for the delay in establishing the standing panel - when the standing panel is expected to be in place As a Board member I am also working on tightening up our oversight that the outcomes from the AoC reviews are actually implemented as approved by the Board. Regards, Bruce Tonkin

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