March 2015 - Accountability-Cross-Community

Notes-Recordings-Transcript links for CCWG ACCT Session #16 10 March
by Brenda Brewer March 10, 2015

March 10, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #16 call on 10 March will be available here: <https://community.icann.org/pages/viewpage.action?pageId=52890271> https://community.icann.org/pages/viewpage.action?pageId=52890271 Action Items ACTION ITEM: Mathieu to report back to the CCWG on conversation with Thomas Schneider in due course. ACTION ITEM: Jordan to touch base with Keith Drazek on WP1-5B. ACTION ITEM: Obtain further feedback from the Group during the week. (Feedback on CCT-RT) ACTION ITEM: Obtain further feedback from the Group during the week. (Feedback on WHOIS) ACTION ITEM: Review the WP2 document <https://community.icann.org/download/attachments/52888740/Work%20Item%20Lis… P2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2> https://community.icann.org/download/attachments/52888740/Work%20Item%20Lis… 2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2 and socialize with your respective groups before the next call to ensure the Group is fully aligned with WP2 suggestions. ACTION ITEM: WP1 and WP2 rapporteurs to synchronize to avoid duplication and clarify where the principles discussion is taking place. ACTION ITEM: CCWG to review ST-WP work - <https://community.icann.org/download/attachments/52232556/Applying%20Stress… %5D.pdf?version=1&modificationDate=1425965091000&api=v2> https://community.icann.org/download/attachments/52232556/Applying%20Stress… 5D.pdf?version=1&modificationDate=1425965091000&api=v2 ACTION ITEM: Report on contingencies we cannot mitigate. ACTION ITEM: ST-WP to identify stress tests for discussion on 17 March. ACTION ITEM: WP1 and WP2 to provide legal questions to Legal Subteam. ACTION ITEM: León to confirm legal subteam decision ACTION ITEM: Co-chairs to include agenda item regarding next steps for the group and timeline in last section of Istanbul agenda. Notes 1. A substantial number of colleagues have not submitted their SOIs. Co-chairs have reached out to them and reiterated the need for accountability and transparency. 2. Activity Reports WP1 Jordan invited the Group to review the current work status document - <https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CC… ?version=1&modificationDate=1425966317000&api=v2> https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CC… version=1&modificationDate=1425966317000&api=v2 and reported that: 1) the WP is making progress on elements; 2) the WP will discuss outstanding items and how it will arrive at consensus on WP1 call on Thursday; 3) the WP will have a consensus call agreement meeting next week and circulate documents for consideration in Istanbul. WP1-4A Defining GAC consensus for ICANN Mathieu informed the Group that Cochairs have engaged with Thomas Schneider to further discuss the question raised during the stress test analysis about decision making rules for GAC advice see <https://community.icann.org/pages/viewpage.action?pageId=52891502> https://community.icann.org/pages/viewpage.action?pageId=52891502 and are in the process of finding a time slot with Thomas to provide more context and have an initial discussion about how to proceed. ACTION ITEM: Mathieu to report back to the CCWG on conversation with Thomas Schneider in due course. Work Status Jordan walked the CCWG through the Work Status spreadsheet - <https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CC… ?version=1&modificationDate=1425966317000&api=v2> https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CC… version=1&modificationDate=1425966317000&api=v2 . Orange items will be discussed WP1 meeting #4. WP2 confirmed they will not be conducting work on last table. ACTION ITEM: Jordan to touch base with Keith Drazek on WP1-5B. AoC Reviews Steve del Bianco walked the CCWG through Competition, Consumer Trust and effectiveness of WHOIS Policy reviews - <https://community.icann.org/download/attachments/52888421/Draft%201-%20AoC%… nisms%20%5BSteve%20v5%5D.pdf?version=1&modificationDate=1425509039000&api=v2> https://community.icann.org/download/attachments/52888421/Draft%201-%20AoC%… isms%20%5BSteve%20v5%5D.pdf?version=1&modificationDate=1425509039000&api=v2 - and informed the Group that text is mainly from AoC. Amendments include Review Team designated by Community (SO/AC/SG), independent advice, access to relevant documents at ICANN and non-disclosure, "consider approval and begin implementation within 6 months of receipt" language. It was noted that WHOIS review due to start in 2015 and that EWG work should be considered along with inherent implementation timeline this could imply. Feedback on CCT-RT - Start of New gTLDs was subject to heated debate at GAC: it should also take into account lessons learned, difficulties. --> Feedback needed on Kavouss Arasteh's suggestion that subsequent rounds of new gTLDs should not be opened until the recommendations of the previous review required by this section has been implemented. --> Wouldn't we be interfering with other process? We should not use accountability work to force decision on ICANN about nature of rounds system and whether rounds or not can happen until review done. --> Writing is based on assumption that there will be successive rounds. There might an option where no rounds but an ongoing flow of applications. This might create inconsistencies in the future. It is important to have a regular review but no need to have it connected to rounds. --> We are trying to perpetuate Aoc into Bylaws. In terms of drafting techniques, it would be inconsistent to make something work for years to come and highlight one specific event in there. The idea is to have outcome of reviews needs to be analyzed by Board and taken into consideration for next steps applicable to all sorts of reviews. This reminder could be placed in section on periodic reviews. --> Word this to not predetermine future rounds and scheduling and leave that up to Committees: i.e. set up periodic reviews as instructed and indicate requirements arising out of the upcoming review. -This group enforces accountability - no pre-staging of what responses need be. ---> Jordan's group will analyze discussion while proceeding with work. No request to embed this specific point in WS1. If objections, speak up. Let's keep it on radar for discussions and put it in bucket for WS2. - All the elements are not directly related to transition. This is overall accountability. The draft should go to full GAC for in-depth discussion. - Let's not spend too much work on drafting of implementation specifics legal experts will need to review. - It is a pity we are losing two-step selection process because it is useful for balance. Balanced composition should be key criteria in selection process. ACTION ITEM: Obtain further feedback from the Group during the week. Feedback on WHOIS - Will the WHOIS work stay? It may be worth expanding discussion in light of work on New gTLD Directory Services. - Could just amend the "title" of the review : effectiveness of policies to meet legitimate needs of LEA, promote consumer trust while taking into account privacy. ACTION ITEM: Obtain further feedback from the Group during the week. WP2 Becky Burr reported that: 1) WP2 sub teams have kicked off; 2) Independent review sub team is particularly active; 3) Lively discussions in the request for reconsideration sub team; 4) WP2 is planning to have a completed draft of compact mission on 20 March for in-detail discussion at Istanbul meeting as well as reports and updates from various groups. Independent Review may be further along than the others by that point. Becky has circulated resources on international ombudsman association and hopes to kick off that discussion shortly. Feedback: - Is the issue of binding/non-binding of the Review Committee concluded or being discussed? --> It is ongoing. Legal input will be needed on this. There seems to be strong support for making it binding although there are questions about what that means: e.g. binding in what way: sending decisions back to Board? Important questions that will need to be addressed in context of legal advice we will receive. - What is the legal nature of this compact mission? Will it be binding, actionable? --> The goal is to establish a standard for what kinds of actions are within ICANN's remit. Questions that would be relevant in any of the review/redress mechanism are: is the action taken within ICANN's mission statement; in carrying out its mission statement, has ICANN conducted its activities in accordance with its commitments to the community to respect multistakeholder model, to comply with transparency standards, to avoid discriminatory treatment, to reflect diversity etc. It is a standard against which ICANN's behavior would be measured procedurally. It is the nature of what people have called a Golden Bylaw meaning that some parts of it could not be changed without certain safeguards occurring: e.g. threshold for Board, community approval. How it will be binding and enforced is a question for the group itself. The notion that ICANN could expand its mission statement is something people are skeptical about. --> This goes back to 4 accountability components discussed in Singapore. This compact could be the test for spilling Board or other actions with sufficient grounds if violation of compact. Reminder from Bruce setting out mission in articles of incorporation and Bylaws: has that been addressed? --> It has been forwarded to compact mission sub team and needs to be factored into the process. - Compact mission are fundamental guiding principles/constitutional. - If a review is made binding, what would happen to an appeal to that decision? --> There is nothing that would necessarily change GAC advice: we will need to consider what opportunity GAC would have to respond if someone appealed ICANN's deference to GAC advice on the grounds that the GAC advice is violated. The general notion in the straw man proposal is that ICANN would reconsider GAC advice to the extent that that advice was consistent with compact. - If constitutional, need to be careful if amend anything as this may have considerable impact. How did you pick items you are suggesting now in compact mission, what are the inputs you are using? This will be an important aspect to inform SO/ACs. Need to focus on aspects that generate consensus. --> A significant part of document already exists in the mission statement and core values in the current Bylaws. Also reflected are: 1) a provision in section 3 of Bylaws; 2) a significant number of comments about public interest obligations; 3) comments about institutional excellence, competence and operational excellence. The WP2 is trying to capture disussions that have come up starting with Bylaws, general principles and using inventory of suggestions. Various suggestions about giving ICANN a human rights mission was not included: ICANN is not in the business of content and giving ICANN a promotion of human rights was problematic. ACTION ITEM: Review the WP2 document <https://community.icann.org/download/attachments/52888740/Work%20Item%20Lis… P2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2> https://community.icann.org/download/attachments/52888740/Work%20Item%20Lis… 2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2 and socialize with your respective groups before the next call to ensure the Group is fully aligned with WP2 suggestions. - WP1 is also discussing principles. WP1 and WP2 should synchronize so that it is clear where the discussion about principles is taking place. ACTION ITEM: WP1 and WP2 rapporteurs to synchronize to avoid duplication and clarify where the principles discussion is taking place. - Is there still a need for a position like the Ombudsman if community powers? And if so, what of conflicts etc. --> This should be revisited in light of big picture to determine whether it makes sense. The question will be answered in course of discussion, we should not prejudge if going in. ST-WP All Stress Tests templates are filled in for consideration. ACTION ITEM: CCWG to review ST-WP work - <https://community.icann.org/download/attachments/52232556/Applying%20Stress… %5D.pdf?version=1&modificationDate=1425965091000&api=v2> https://community.icann.org/download/attachments/52232556/Applying%20Stress… 5D.pdf?version=1&modificationDate=1425965091000&api=v2 Caveat that nothing can be finalized until WP1 and WP2 work is completed. The Group is welcome to join the ST-WP call on Wednesday, 11 March at 11:00 UTC: the WP intends to go through all stress tests with objective of having documentation reading for CCWG discussion. The WP also intends to cross-check with stress tests proposed by CWG. Steve del Bianco walked through stress tests 3 (litigation arising from existing public policy e.g. Anti-Trust), 4 (New regulations or legislation) and 20 (Court order is issued to block ICANN's delegation of a new TLD, because of a complaint by existing TLD operators or other aggrieved parties). Feedback: - Are we dealing with people who are present and voting? --> Supermajority 3/4 - 4/5 will a necessary precision. For time being, not defined. It is not based on quorum. Working towards SO/AC/SG bodies that will be given sufficient time to respond on a decision that was brought forth to veto a management move: SO/Acs will have to review that and indicate support or non-support. This would required a documented process. - Current draft indicates there is a potential for ICANN community to require ICANN to take action considered unlawful in certain legislations. If certain legislation is in place and if ICANN were to violate laws in place, there could be lawsuits. How is that addressed in stress-tests? --> Community under a very high standard of supermajority could believe that ICANN should not fear implementing what was identified by a bottom-up process under pressure of law suits etc. Community could instruct ICANN what legal counsel believes is not in best interest of corporation. That possibility could occur in the future. --> If US congress comes up with legislation contrary to a certain ICANN policy, are you arguing that community should have power to force ICANN to act contrary to legislation? --> These are general community empowerment steps currently under discussion. Unaware of any effort to constrain or restrict the community's power just because one nation might disagree with implementation. It is possible that country could adopt measures that would violate notion of single root. We are going to have pressures. ICANN Board and management will do their best for corporation and community but community should be empowered to tip the balance towards community's will. --> This key aspect would need to be underlined. It is a risk. Is the underlying suggestion that we should accept the risk and live with it? --> To increase capability of giving community the accountability and empowerment on how to answer that risk. Not all stress tests are solvable. It is about giving the community the voice it needs to decides how to react. --> Enable community to have final word. --> There is a series of mechanisms that are suggested. Thresholds for disagreeing with and moving Board sit at different levels. Consider whole system in mind. There is a broad array of powers for community we are proposing here. --> Does it conflict with Articles of Incorporation? --> One scenario is where Board takes action presumably because law is created somewhere and informed by GAC representative. Legal counsel advice would be given on whether or not ICANN would fall under that law but government could take action under law enforcement. There is a difference between taking Board action on advice received from a government and taking Board action that is in breach of policy. Board approves community policies one of mechanisms for community is to create policies around that law. Consider IRP and request for reconsideration. --> It does not change the conclusion. We are improving mechanisms to make them accessible to community at large. --> International law being subordinated to decision is outside mandate. --> There can be contradictions between national legal laws. It is outside mandate but should be considered as part of stress testing. It is not clear we should know what answer is but we should be aware of potential issue before going out for public comment. It is a key risk for ICANN to find itself in contradiction with international law. --> Exercise is not to eliminate risks it is to ask whether existing accountability measures give the community the power to hold Board accountable to way it reacts to this stress-test. ACTION ITEM: Report on contingencies we cannot mitigate. ACTION ITEM: ST-WP to identify stress tests for discussion on 17 March. Legal Subteam León Sanchez reported that the Legal Subteam held one call last week to incorporate some of the concerns raised. Although the document was not shortened, language and questions were refined. WP1 and WP2 should provide questions to be incorporated into legal document. The jurisdiction issue was widely discussed: although all agree that concerns should be addressed, the Subteam also agreed that this would be an issue for WS2. If addressed as part of WS1, could be facing derailing of whole process. This agreement will be put forward for CCWG agreement. The CWG has announced engagement with law firm to provide legal advice. The Legal Subteam will hold a call with one of the shortlisted firms. The possibility of engaging with same law firm is high but the Legal Subteam needs to go through own process. ACTION ITEM: WP1 and WP2 to provide legal questions to Legal Subteam. Feedback - Will question on jurisdiction be put out to the CCWG? - Explanation about California law limitations are needed. Get started on the work asap. - It would simplify work moving forward if CCWG goes with same law firm. Recommendation to go for it unless good reason not to. ACTION ITEM: León to confirm legal subteam decision - Which areas of enquiry will be in WS1 and WS2? Once legal firm is selected, CCWG should have opportunity to determine WS1 and WS2. 3. Timeline Mathieu Weill stated that a common understanding of Istanbul meeting is needed. An agenda has not been produced yet because the most efffective way will be for Cochairs to build agenda on issues arising out of WPs and items we will need to reach consensus on so that can leave Istanbul with understanding of what will be put out for public comment. WP outcomes should be circulated a few days before the meeting so that the CCWG can review materials before the meeting. Ideas need to socialized prior the meeting as well, including compact mission, AOC discussion (what should be included and how), WS1 measures, review and redress. Aware that no legal feedback yet but need to work on initial feedback we have from past interactions and raise questions with legal doubts. It is a risk but no other option. The Group will discuss in Istanbul whether changing timeline or not. Objective is to get as much work done as possible: i.e. testing level of agreement in Istanbul rather than discussing extending timelines etc. It is important to focus on work and requirements - if go into details, will derail timeline. Compact will be on the Istanbul agenda. ACTION ITEM: Co-chairs to include agenda item regarding next steps for the group and timeline in last section of Istanbul agenda. Feedback: - We need to be careful about aligning expectations about what final output needs to be and what the output sent to Board is, what we are going to get public comment on in April etc. By end of Istanbul meeting, we will know if issues will closed: prepare enough details. --> There is no reasonable expectations from us to provide fully fleshed Bylaws changes. - Public comment is currently 30 days. 4. Proposed Structure of Public Comment Report The Co-chairs are working on a structure for the report, populating the sections and would welcome the CCWG's feedback. Thomas Rickert walked the Group through the proposed architecture. Feedback - We need to be mindful of readability of report: structure report in a way that is readable very quickly using appendices. Think about best way to get feedback from communities. 5. A.O.B Next CCWG ACCT Meeting #17 Tuesday, 17 March 19:00 21:00 UTC

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Strickland Testimony [ACB NA-NiC]
by Dr Eberhard Lisse March 10, 2015

March 10, 2015

I wonder, has the following paragraph: NTIA has fulfilled this temporary role not because of any statutory or legal responsibility, but as a temporary measure at the request of the President. Indeed, Congress never designated NTIA or any other specific agency responsibility for managing the Internet DNS. Thus, NTIA has no legal or statutory responsibility to manage the DNS. Just as Federal agencies can enter into contracts they need to fulfill their missions without specific legislative authority, Federal agencies can discontinue obtaining such services when they no longer need them. As NTIA made clear at the time of its Statement of Policy, it intended only to procure the IANA functions services until such time as the transition to private sector management of the Internet DNS was complete. from Mr Strickland's recent testimony before the Thue-Commitee http://www.ntia.doc.gov/speechtestimony/2015/testimony-assistant-secretary-… been discussed here already? What implication does this have with regards to the stewardship, if any? With regards to stress tests, if any? 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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Working Party 1 update for CCWG mtg
by Jordan Carter March 10, 2015

March 10, 2015

Hi all Attached as PDF and also online (link below) is my best to-hand info about where Working Party 1 is currently at. You can see the status in easy colour highlights in Table 1. *Any corrections or updates, please let me know as soon as you notice them.* For tonight's call, we will cover the following in our report-back: *Process:* * a quick precis of this status update * what we plan to cover in our WP1 #4 meeting on Wed night UTC, and if we need a WP1 #5 meeting *Substance: * * update of where the GAC has got to in considering the interaction between GAC operating principles and ICANN bylaws * clarification of understanding as to whether WP1 should target one or two mechanisms, and attach all the powers to this/these I apologise it's brief on the substance. Last week's experience of dealing with items at this call and then WP1 discussing them later won't work this week. We'll have our WP1 call on Wednesday 2100, and have plenty of substance to talk to next week. best, Jordan The doc lives at https://docs.google.com/a/internetnz.net.nz/document/d/1NIrzK3mlGBbIHtdZDoA… -- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan(a)internetnz.net.nz Skype: jordancarter *A better world through a better Internet *

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Re: [CCWG-ACCT] [Party2] Independent Review
by Alice Munyua March 10, 2015

March 10, 2015

Dear David Thank you. Re-sending and would like to add another issue regarding timely communication to all affected parties. Best regards Alice > Alice > Thanks - it doesn't look like your message got distributed to the > group list which I think would be a good idea - > David > > At 01:48 AM 3/6/2015, you wrote: >> Dear David, >> >> Thank you for this list of topics. >> >> 11. Should the IRP be provided with clear time lines for each stage >> 12 What provisions can be put in place for redress against the IRP >> provider in the event the process goes off track >> >> Best regards >> Alice Munyua >> AUC >> >> >> On 06/03/2015 01:19, David Post wrote: >>> >>> [This is for the _Independent Review subgroup_: Paul Rosenzweig, >>> David McAuley, Jonathan Zuck, Robin Gross, Chris LaHatte, me]. I >>> don't think a separate mailing list has been set up, so I apologize >>> to the rest of you who are working on other issues here] >>> >>> I'm a little bit late to the WP2 party, but I thought, just for the >>> purpose of kicking off our discussion, we might see if there we can >>> generate a list of topics that we need to cover for the design of >>> the IRP -- >>> >>> I'm sure there are others, but here's a starter group, picking up on >>> some of the "issues" listed in the latest work item list and adding >>> a few others: >>> >>> 1. Will the IRP be a permanent standing panel, or will it have >>> rotating membership? >>> 2. What is the scope of the IRB's jurisdiction - what kinds of >>> claims can it hear? >>> 3. What standard of review will it use to render its decisions? >>> 4. Standing - who can bring claims to the IRP? >>> 5. How will IRB members be nominated and appointed? >>> 6. Term - for how long will IRP members serve? Can they be >>> re-appointed? >>> 7. Will there be a process for removal of IRP members? >>> 8. Costs - who will pay IRP costs? >>> 9. How will IRP decisions be implemented? Are they binding on the >>> Board? Can they be overturned by the Board? >>> 10. Should changes to the IRP process be made permanent (i.e., not >>> subject to Board modification)? If so, how can we accomplish that? >>> >>> >>> As I said, I'm sure there are things missing or mis-stated - but I >>> do think it would be worth trying to put a list like this together >>> to structure our discussion as we plunge forward. >>> David >>> >>> >>> ******************************* >>> 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) http://tinyurl.com/c327w2n >>> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0> >>> music http://tinyurl.com/davidpostmusic >>> <http://tinyurl.com/davidpostmusic> publications etc. >>> http://www.davidpost.com >>> <http://www.davidpost.com%A0%A0%A0%A0%A0%A0%A0/> >>> ******************************* >>> >>> >>> _______________________________________________ >>> WP2 mailing list >>> WP2(a)icann.org <mailto:WP2@icann.org> >>> >>> https://mm.icann.org/mailman/listinfo/wp2 >> >> _______________________________________________ >> WP2 mailing list >> WP2(a)icann.org >> https://mm.icann.org/mailman/listinfo/wp2 >> <https://mm.icann.org/mailman/listinfo/wp2> > > ******************************* > 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) http://tinyurl.com/c327w2n > <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> > music http://tinyurl.com/davidpostmusic > <http://tinyurl.com/davidpostmusic%A0> publications etc. > http://www.davidpost.com > <http://www.davidpost.com%A0%A0%A0%A0%A0%A0%A0%A0%A0/> > *******************************

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Cross Atlantic Talk about ICANN
by Paul Rosenzweig March 10, 2015

March 10, 2015

http://www.euractiv.com/sections/mobile-world-congress/us-election-could-tri gger-battle-over-internet-governance-312626?utm_source=EurActiv+Newsletter <http://www.euractiv.com/sections/mobile-world-congress/us-election-could-tr igger-battle-over-internet-governance-312626?utm_source=EurActiv+Newsletter& utm_campaign=71cd705bd7-newsletter_infosociety&utm_medium=email&utm_term=0_b ab5f0ea4e-71cd705bd7-245732053> &utm_campaign=71cd705bd7-newsletter_infosociety&utm_medium=email&utm_term=0_ bab5f0ea4e-71cd705bd7-245732053 Of interest to the group . Paul Paul Rosenzweig Paul.rosenzweig(a)gmail.com <mailto:Paul.rosenzweig@gmail.com> +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Our travel blog: www.paulandkatyexcellentadventure.blogspot.com <http://www.paulandkatyexcellentadventure.blogspot.com/> My professional blog: www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9>

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Of possible interest re Accountability and the need for Independent Review
by David Post March 9, 2015

March 9, 2015

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/09/icann-co… David >On 8 March 2015 at 12:03, Robin Gross ><<mailto:robin@ipjustice.org>robin(a)ipjustice.org> wrote: >We need to add an evaluation of the "Cooperative >Engagement Process" or "CEP" - the initial or >pre step to trigger an IRP on an ICANN >decision.Â There are timing, transparency, and >due process issues to consider in the CEP step an ICANN IRP. >Thanks, >Robin > >On Mar 6, 2015, at 9:18 AM, Alice Munyua wrote: > >>Dear David >>Thank you. >>Re-sending andÂ would like to add another >>issue regarding timely communication to all affected parties. >>Best regards >>Alice >> >>>Alice >>>Thanks - it doesn't look like your message got >>>distributed to the group list which I think would be a good idea - >>>David >>>At 01:48 AM 3/6/2015, you wrote: >>>>Dear David, >>>>Thank you for this list of topics. >>>>11. Should the IRP be provided with clear time lines for each stage >>>>12 What provisions can be put in place for >>>>redress against the IRP provider in the event the process goes off track >>>> >>>>Best regards >>>>Alice Munyua >>>>AUC >>>> >>>>On 06/03/2015 01:19, David Post wrote: >>>>>[This is for the Independent Review >>>>>subgroup:Â Paul Rosenzweig, David McAuley, >>>>>Jonathan Zuck, Robin Gross, Chris LaHatte, >>>>>me]. I don't think a separate mailing list >>>>>has been set up, so I apologize to the rest >>>>>of you who are working on other issues here] >>>>>I'm a little bit late to the WP2 party, but >>>>>I thought, just for the purpose of kicking >>>>>off our discussion, we might see if there we >>>>>can generate a list of topics that we need >>>>>to cover for the design of the IRP -- >>>>>I'm sure there are others, but here's a >>>>>starter group, picking up on some of the >>>>>"issues" listed in the latest work item list and adding a few others: >>>>>1.Â Will the IRP be a permanent standing >>>>>panel, or will it have rotating membership? >>>>>2.Â What is the scope of the IRB's >>>>>jurisdiction - what kinds of claims can it hear?Â >>>>>3.Â What standard of review will it use to render its decisions? >>>>>4.Â Standing - who can bring claims to the IRP? >>>>>5.Â How will IRB members be nominated and appointed? >>>>>6.Â Term - for how long will IRP members >>>>>serve?Â Can they be re-appointed? >>>>>7.Â Will there be a process for removal of IRP members? >>>>>8.Â Costs - who will pay IRP costs? >>>>>9.Â How will IRP decisions be >>>>>implemented?Â Are they binding on the >>>>>Board?Â Can they be overturned by the Board? >>>>>10.Â Should changes to the IRP process be >>>>>made permanent (i.e., not subject to Board >>>>>modification)? If so, how can we accomplish that? >>>>> >>>>>As I said, I'm sure there are things missing >>>>>or mis-stated - but I do think it would be >>>>>worth trying to put a list like this >>>>>together to structure our discussion as we plunge forward. >>>>>David >>>>> >>>>>******************************* >>>>>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>http://tinyurl.com/c327w2nÂ Â Â Â >>>>>music >>>>><http://tinyurl.com/davidpostmusic>http://tinyurl.com/davidpostmusic >>>>>publications >>>>>etc.Â >>>>><http://www.davidpost.com%A0%A0%A0%A0%A0%A0%A0/>http://www.davidpost.comÂ >>>>>Â Â Â Â Â >>>>>******************************* >>>>> >>>>> >>>>> >>>>> >>>>>_______________________________________________ >>>>> >>>>> >>>>>WP2 mailing list >>>>> >>>>> >>>>><mailto:WP2@icann.org>WP2(a)icann.org >>>>> >>>>> >>>>> >>>>>https://mm.icann.org/mailman/listinfo/wp2 >>>>_______________________________________________ >>>>WP2 mailing list >>>><mailto:WP2@icann.org>WP2(a)icann.org >>>>https://mm.icann.org/mailman/listinfo/wp2 >>>******************************* >>>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.com%A0%A0%A0%A0%A0%A0%A0%A0%A0/>http://www.davidpost.comÂ >>>Â Â Â Â Â Â Â >>>******************************* >>_______________________________________________ >>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 > >_______________________________________________ >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 > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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AGENDA - Meeting #16
by Alice Jansen March 9, 2015

March 9, 2015

Dear all, Below you will find a proposed agenda in preparation for your call #1<https://community.icann.org/pages/viewpage.action?pageId=52890271>6<https://community.icann.org/pages/viewpage.action?pageId=52890271> - Tuesday, 10 March - 06:00-08:00 UTC: -- 1. Welcome, roll-call & SoI 2. Activity reports WP 1<https://community.icann.org/display/acctcrosscomm/WP1+--+Community+Empowerm…> WP 2<https://community.icann.org/display/acctcrosscomm/WP2+--+Review+and+Redress> ST-WP<https://community.icann.org/display/acctcrosscomm/ST-WP+--+Stress+Test+Work…> Legal Subteam<https://community.icann.org/display/acctcrosscomm/Legal+SubTeam> 3. Timeline (sharing expectations from Istanbul) 4. Structure of public comment report 5. A.O.B 5. Concluding remarks -- Agenda item 4: please refer to the attached document. Thanks, Best regards Alice

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Fwd: [CWG-Stewardship] Sidley Austin LLP
by León Felipe Sánchez Ambía March 9, 2015

March 9, 2015

Dear all, This information from the CWG is also relevant for our group. While we haven’t engaged a law firm yet, I think it’s important we are all up to date with what’s happening in the CWG. Best regards, León > Inicio del mensaje reenviado: > > De: "Jonathan Robinson" <jrobinson(a)afilias.info> > Para: <cwg-stewardship(a)icann.org> > Fecha: 8 de marzo de 2015 15:46:11 GMT-6 > Asunto: [CWG-Stewardship] Sidley Austin LLP > Responder a: jrobinson(a)afilias.info > > Dear All, > > As of Friday 6 March, the CWG-Stewardship has engaged Sidley Austin LLP to advise and consult on the CWG’s development of a transition proposal. > > In the past two weeks, the Client Committee shortlisted three firms, interviewed each of them, and retained one. We chose to retain Sidley primarily because they envisaged the engagement as consultation rather than pure advice. In addition, Sidley presented a strong governance focus as well as specific experience with the U.S. political environment (including a former Congressman and a former Department of Commerce appointee). > > Sidley is aware of the CWG’s tight timeframe and accepts the requirement for highly transparent work methods. Also, the client relationship has been clearly defined and emphasized in the retention letter in that ICANN has instructed Sidley to take direction exclusively from and provide advice and consultation exclusively to the CWG, primarily through the CWG’s Client Committee. > > Sidley has no previous client relationship with ICANN. No conflicts were identified, however please note that Greg Shatan and Holly Gregory from Sidley worked at the same firm over a decade ago. > > The Client Committee will meet with Sidley Austin on Monday. This call will be recorded and transcribed and we will then provide an update to the CWG on Tuesday’s call, where we also plan to introduce the Sidley team to the CWG. > > Best wishes, > > > > Jonathan & Lise > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org <mailto:CWG-Stewardship@icann.org> > https://mm.icann.org/mailman/listinfo/cwg-stewardship <https://mm.icann.org/mailman/listinfo/cwg-stewardship>

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Re: [CCWG-ACCT] [Notify] CCWG ACCT Stress Tests Working Group Meeting
by Dr Eberhard W Lisse March 9, 2015

March 9, 2015

Is that time what the Doodle poll came up with? I can't make it. el -- Sent from Dr Lisse's iPad mini > On Mar 6, 2015, at 17:43, Brenda Brewer <brenda.brewer(a)icann.org> wrote: > > <image001.gif> > Dear CCWG Accountability team, > > Cheryl Langdon-Orr and Steve DelBianco welcome interested participants to attend the Stress Tests meeting next week on 11 March. > > ST-WG meeting is scheduled for Wednesday, 11 March 2015 at 11:00-13:00 UTC. For international time zones see here. > > [...]

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Additional Stress Tests to discuss
by Steve DelBianco March 8, 2015

March 8, 2015

For tomorrow’s call, we applied 4 more of our stress tests against the draft package of proposed accountability measures. Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the attached draft document. Stress Test: #1. Change authority for the IANA Root Zone ceases to function, in part or in whole. #2. Delegation authority for the IANA Root Zone ceases to function, in part or in whole. Consequence: interference with existing policy relating to IANA Root Zone and/or prejudice to the security and stability of one or several TLDs. Existing Accountability Measures: Under the present IANA contract, NTIA can revoke ICANN’s authority to perform IANA functions and re-assign to different entity/entities. After NTIA relinquishes the IANA contract, this measure will no longer be available. Proposed Accountability Measures: The CWG planning the IANA stewardship transition might design mechanisms and structures that enable separation, such that the IANA functions could be readily revoked and re-assigned. To manage the revocation of IANA functions, the CWG might also propose an emergency backup provider and procedures, pending re-assignment of the IANA functions. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. At this point, CWG’s recommendations are still in development. ——————————————————— Stress Test: #24. An incoming Chief Executive institutes a “strategic review” that arrives at a new, extended mission for ICANN. The Board, having just hired the new CEO, approves the new mission and strategy without community consensus. Consequence: Community ceases to see ICANN as the community’s own mechanism for discharging limited technical functions, and views ICANN as an independent, sui generis entity with its own agenda, not necessarily supported by the community. Ultimately, community questions why ICANN’s original functions should remain controlled by a body that has acquired a much broader and less widely supported mission. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to expand scope too broadly. The Community has some input in ICANN budgeting and Strat Plan, and could register objections to plans and spending on extending ICANN’s mission. California’s Attorney General has jurisdiction over non-profit entities acting outside Bylaws or Articles of Incorporation. Proposed Accountability Measures: One proposed measure is empowering the community to veto ICANN’s proposed annual budget. This measure could block a proposal by ICANN to increase its expenditure on extending its mission beyond what the community supported. If the ICANN board voted to approve the CEO’s plans, one proposed measure would give the community standing to veto a board decision. Another proposed measure is empowering the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures in combination are adequate. ——————————————————— Stress Test: #15. ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions. Consequence: affected parties could be prevented from seeking legal redress for commissions or omissions by ICANN. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to move in order to avoid legal jurisdiction. Paragraph 8 of the AoC requires ICANN to remain headquartered in the US, but the AoC can be terminated by ICANN at any time. As long as NTIA controls the IANA contract, ICANN feels pressure to maintain the AoC. Proposed Accountability Measures: One proposed measure is to give the community standing to veto a board decision. If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision. One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party. If ICANN’s board proposed to amend the AoC provisions added to the bylaws, another proposed measure would empower the community to veto that proposed bylaws change. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures improve upon existing measures, and may be adequate.

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Notes-Recordings-Transcript links for CCWG ACCT WP2 Meeting #3 05 MARCH
by Brenda Brewer March 7, 2015

March 7, 2015

Hello all, The notes, recordings and transcripts for the WP2 Meeting #3 - 05 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52890944 Action Items * Staff: mailing lists for the 4 sub-working groups * Keith Drazek: will begin a cross-reference of the Mission/Values/Powers and the Articles * All groups/volunteers: drafting should be complete by 19 March * Becky Burr: to check leadership of the 4 sub-groups correct and agreed by the individuals concerned Notes WP2 call #3 - 5 February 2015 This call is being recording WP2 documents - <https://community.icann.org/display/acctcrosscomm/WP+2+Draft+Documents> https://community.icann.org/display/acctcrosscomm/WP+2+Draft+Documents Call for volunteers to join the work groups. Please email < <mailto:accountability-staff@icann.org> accountability-staff(a)icann.org> Anyone who has volunteered and not listed in the paper, please let staff know. There will be an email list for each of the following new sub-groups. . Community compact group: statement of completeness and questions by next weeks call . Ombudsman: task, enhancements to current ombudsman function . Request for reconsideration: Community view as an important improvement. . Independent review reconsideration: Items under the section "New Mechanisms", and new powers regarding the ICANN Ombudsman all moved to WP1. Jordan has been told who the volunteers for each were. Intention is for the descriptions of the enhancements and issues arising will be prepared so we can have a substantive discussion in Istanbul Drafting should be complete by 19 March so the whole group can prepare for Istanbul (travel) David Maher, lead: community compact group Ed Morris, lead, Ombudsman Becky Burr, lead, request for reconsideration Robin Gross, lead independent review reconsideration ICANN technical mission work stream has moved from WP1 to WP2. Keith Drazek will continue to lead Steve DelBianco: issues for stress test. 4 refer to what happens if ICANN tried to exceed its limited technical mandate. Responses are either proscriptive or restraining. Independent review will need to refer to a standard against which to decide if ICANN has exceeded its mandate. The review process may be the strongest mechanism CCWG creates. Will share the 4 relevant stress tests. Noted concern if the community could expand ICANN's mandate by consensus. Suggestion that certain aspects should be frozen in the bylaws, with great care to allow for evolution, but to cast core principles in stone. Mission statement. The list of commitments reflect the list found in ICANN's missions, bylaws, AoC and ideas suggested in CCWG. But the list should be finite enough to allow the organization to operate, but enough to make our expectations of organization clear. No attempt being made by WP2 to redefine ICANN mission and core values. But to capture the values in a more comprehensive way. So ICANN's behavior can be measured against it. Advisors, the articles of incorporation are limited in scope. The state requires ICANN to maintain these documents, believe they have not been changed to date. Some matters to do with the structure of the organizations, such as membership, might require a modification. Constraining the purpose of the organization in the articles of incorporation may worth looking at and protecting. Concern about possible limitation in the text about the consensus policies - ongoing for the group Action items Staff: mailing lists for the 4 sub-working groups Keith Drazek: will begin a cross-reference of the Mission/Values/Powers and the Articles All groups/volunteers: drafting should be complete by 19 March Becky Burr: to check leadership of the 4 sub-groups correct and agreed by the individuals concerned END Kind regards, Brenda

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Notes-Action Items for CCWG Accountability LEGAL SubTeam Meeting 05 March
by Brenda Brewer March 7, 2015

March 7, 2015

Dear all, The Action Items and Notes for the CCWG Accountability LEGAL SubTeam call on 05 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52891283 Action Items ACTION ITEM: Include Robin in conversations with law firms. ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March. ACTION ITEM: Robin to refine document before call with law firm for discussion. Notes Update on selection process of Law Firm: - Several calls took place with shortlisted candidates. - 8 law firms at the beginning of process. - 3 shortlisted firms. Feedback: - These decisions should be made by legal team. Who decides which law firms get shortlisted? --> CCWG jumped in to catch up with CWG. ---> It is the CWG process - Leon liaised for the CCWG legal committee - process has been ongoing for few weeks. If CCWG likes firm the CWG hires, CCWG could use them. Could hire a different firm if not satisfactory but this would have impact on costs. //Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time// - Firm the CWG hires is not necessarily going to be the one the CCWG will hire. ACTION ITEM: Include Robin in conversations with law firms. ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March. - While we have been discussing terms of engagement with candidate, we have not engaged candidate. There have been discussions on whether it is appropriate to handle both CWG and CCWG. Law firms were asked if saw conflict: none of the firms detected issue-based conflicts and confirmed they would have resources to support both projects. We did not presuppose CCWG work, did not share documents, but ensured availability of resources and that there is no CoI. //Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time// Review of legal scoping document Suggestions that this document should be shortened. Feedback: - We should not take section on concerns and proposals out of document. Context is needed. Pushback from community if we don't include their feedback. --> Let lawyers expand on initial proposal. --> Clarify that these are not the only items we would consider. - The document is not too long. Do not waste too much time on editing the document. It is straightforward. Put jurisdiction on hold. Immunity is contrary to accountability. - Leave all questions that have been proposed in the document - they reflect genuine concerns from the stakeholders. Jurisdiction is a real concern. There is a link between accountability and jurisdiction. We are debating mechanisms that would eventually be implemented under certain jurisdictions - we would need to think about alternatives. Respect the jurisdiction concern. --> This raises question of: is this WS1 or WS2? To date, it is considered WS2 due to the time this would require to implement and in light of declaration from Fadi at hearing. If WS1, this might derail the whole process. --> Lot of pressure on group - we need to ask the question of jurisdiction. --> It is important to get feedback on jurisdiction and to ask questions. Some of the answers will show that US California jurisdictions are very strong for accountability and rule of law and offer increasing amount of flexibility for different methods of accountability. But if available in other jurisdictions, it should be known. We may return to jurisdiction discussions in CWG as well. --> Discussion about jurisdictional concerns regarding review panels is certainly an issue. Suggestion that Advisors' guidance be sought. Conclusion: - Keep document structure as it is. - Nothing in the document as it is will be taken out. - Panel of experts could be extremely helpful and should be mentioned to law firms - it is a resource that could be used. - Lee Bygrave's guidance could be useful - his participation in Istanbul meeting is tentative. Proposed Goals Proposed goals: How can we protect ICANN from being prone to capture? How can we protect ICANN from antitrust law in US? Feedback - Antitrust review of potential mechanism would be desirable at some point in process. - Concerns about legal subteam coming up with new goals for the CCWG: it is not appropriate. --> We should address mechanisms to prevent the whole system to be prone to capture. Any change in jurisdiction might affect the whole organization and its stakeholders regarding effect of antitrust law. - Antitrust is not a goal but a byproduct. Capture is a concern across other communities. We are waiting to receive WP1, WP2, ST-PT conclusions. ACTION ITEM: Robin to refine document before call with law firm for discussion. END Kind regards, Brenda

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Fwd: [CWG-Stewardship] Client Committee Update: Finalists
by León Felipe Sánchez Ambía March 6, 2015

March 6, 2015

Dear all, This information is also relevant to our group. Best regards Enviado desde mi iPhone Inicio del mensaje reenviado: > De: Greg Shatan <gregshatanipc(a)gmail.com> > Fecha: 6 de marzo de 2015, 1:52:02 PM CST > Para: "cwg-stewardship(a)icann.org" <cwg-stewardship(a)icann.org> > Asunto: [CWG-Stewardship] Client Committee Update: Finalists > > All, > > As promised, I have attached the introductory materials provided to the Client Committee by the three "finalist" law firms: > > Gibson Dunn > Latham & Watkins > Sidley Austin > Best regards, > > Greg Shatan > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship

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Re: [CCWG-ACCT] Time slot proposal for CCWG call
by Robin Gross March 6, 2015

March 6, 2015

Ok, Leon. I will cancel my dentist appointment on Monday so I can accommodate your scheduling choices for this call. Best, Robin On Mar 6, 2015, at 12:43 PM, León Felipe Sánchez Ambía wrote: > Dear Robin, > > Monday was also an option from the beginning and most participants replied with their availability on Monday before providing availability for Tuesday. > > When you replied you were available only on Tuesday, I asked the rest of the participants to reply with their Tuesday availability so they replied. > > I then forwarded availability on Monday and Tuesday to Sidley and they came back with their availability. > > If you go through the different threads on this subject, you will be able to confirm what I'm saying here. > Mother idea is to have most of us in the call. I can go back again to Sidley and insist in verifying availability for Tuesday if the rest of the team is ok. > > Best regards, > > León > > Enviado desde mi iPhone > > El mar 6, 2015, a las 2:34 PM, Robin Gross <robin(a)ipjustice.org> escribió: > >> Thanks, Leon, but I'm still confused. All of our email responses gave available times on Tuesday. I know I'm already booked on Monday at this time, as indicated in my response. Why was Monday pitched to Sidley at all, given our responses were all providing our availability on Tuesday? Thanks. >> >> Best, >> Robin >> >> On Mar 6, 2015, at 12:29 PM, León Felipe Sánchez Ambía wrote: >> >>> Hi Robin, >>> >>> Please read the whole thread. I included Tuesday slots in my email to Sidley and they replied with their availability. >>> >>> Best regards, >>> >>> >>> >>> Enviado desde mi iPhone >>> >>> El mar 6, 2015, a las 2:04 PM, Robin Gross <robin(a)ipjustice.org> escribió: >>> >>>> Leon, >>>> >>>> Our email chain discussed available times on Tuesday. I'm confused that you have come back with a Monday time. Is Holly not available on Tuesday at the times we suggested? >>>> >>>> Thanks, >>>> Robin >>>> >>>> >>>> On Mar 6, 2015, at 12:01 PM, León Felipe Sánchez Ambía wrote: >>>> >>>>> Dear all, >>>>> >>>>> Further to my previous email, Sidler Austin would be available to hold a call on Monday from 2-3 pm eastern time. >>>>> >>>>> I hope most of us are available on that time slot. >>>>> >>>>> >>>>> Best regards, >>>>> >>>>> >>>>> León >>>>> >>>>>> Inicio del mensaje reenviado: >>>>>> >>>>>> De: "Gregory, Holly" <holly.gregory(a)sidley.com> >>>>>> Para: 'León Felipe Sánchez Ambía' <leonfelipe(a)sanchez.mx> >>>>>> Cc: "McNicholas, Edward R." <emcnicholas(a)sidley.com>, "Tam, Tennie H." <tennie.tam(a)sidley.com>, "Mohan, Vivek" <vivek.mohan(a)sidley.com> >>>>>> Asunto: RE: Time slot proposal for CCWG call >>>>>> Fecha: 6 de marzo de 2015 13:44:06 GMT-6 >>>>>> >>>>>> Hi Leon, We are available from 2 to 3 pm eastern on Monday, and are looking forward to speaking with you and the CWG members. Holly >>>>>> >>>>>> HOLLY GREGORY >>>>>> Partner >>>>>> >>>>>> Sidley Austin LLP >>>>>> +1.212.839.5853 >>>>>> holly.gregory(a)sidley.com >>>>>> -----Original Message----- >>>>>> From: León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx] >>>>>> Sent: Friday, March 06, 2015 2:30 PM >>>>>> To: Gregory, Holly >>>>>> Subject: Time slot proposal for CCWG call >>>>>> >>>>>> Dear Holly, >>>>>> >>>>>> I consulted with the group the possible time slots everyone would have available and they came up with these: >>>>>> >>>>>> Monday: Starting in the afternoon, anytime after. Please keep in mind that we have participants in Pacific, Central and Eastern time zones. >>>>>> >>>>>> Tuesday: 6-9 pm Eastern time. >>>>>> >>>>>> Please let me know what works for you and your team. >>>>>> >>>>>> >>>>>> Best regards, >>>>>> >>>>>> >>>>>> León >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> **************************************************************************************************** >>>>>> This e-mail is sent by a law firm and may contain information that is privileged or confidential. >>>>>> If you are not the intended recipient, please delete the e-mail and any attachments and notify us >>>>>> immediately. >>>>>> >>>>>> **************************************************************************************************** >>>>> >>>> >>

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Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
by Carrie Devorah March 6, 2015

March 6, 2015

Phil ICANN "lost" its not for profit as I see it once it began quadrupling "profits." Also, at the Hearing, Fadi says ICANN is about policy. I have asked this before. I am asking again, how does auctioning of gTLD's fit in to this policy definition? Sincerely Carrie Devorah www.centerforcopyrightintegrity.com On Wed, Mar 4, 2015 at 6:25 PM, Tijani BEN JEMAA < tijani.benjemaa(a)fmai.org.tn> wrote: > Phil, > > > > I also was watching the senate hearing, and confirm that Fadi said that > ICANN would remain subject to US jurisdiction. I also confirm that this is > a very important point. > > It is important because the NTIA announcement of the stewardship > transition calmed very much people who were always complaining that it is > unfair that a single country control the Internet, a global network. Now > that we have this achievement, it would be a pity to loose it because we > want to put in our bylaws that ICANN will remain acting under the US > jurisdiction. > > > > I know and agree that the US jurisdiction is one of the best for the not > for profit corporation. I don’t say that we need to move ICANN to another > jurisdiction, but I think we don’t have to make it a condition. > > > > We need a stable and predictable legal environment, and we also need to > build trust and make people stop complaining. So being diplomatic in our > work is really necessary for a successful and sustainable transition. > > > > > -------------------------------------------------------------------------------- > > *Tijani BEN JEMAA* > > Executive Director > > Mediterranean Federation of Internet Associations (*FMAI*) > > Phone: + 216 41 649 605 > > Mobile: + 216 98 330 114 > > Fax: + 216 70 853 376 > > > -------------------------------------------------------------------------------- > > > > > > > > > > > > *De :* accountability-cross-community-bounces(a)icann.org [mailto: > accountability-cross-community-bounces(a)icann.org] *De la part de* Phil > Corwin > *Envoyé :* mercredi 4 mars 2015 23:29 > *À :* Pedro Ivo Ferraz da Silva; 'Steve DelBianco'; Accountability Cross > Community > *Cc :* ACCT-Staff; ccwg-accountability4(a)icann.org > *Objet :* Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss > > > > Pedro: > > > > This is a very important point. I was in the room at the Senate Commerce > hearing last week, and also at another event at the US Chamber of Commerce > two days later. At both events Fadi stressed that ICANN would remain > subject to US “jurisdiction" post-transition, not just maintain its nominal > HQ in the US. As you correctly point out, there is a big “difference > between "headquarter location" and "legal presence/legal jurisdiction". > > > > Choice of legal jurisdiction is a very important point for multiple > reasons, among them: > > · Stable and predictable legal regime for contracted parties. As > all of ICANN’s authority vis-à-vis registries and registrars is based on > its contracts with them, reliable and predictable contract enforcement is > a key consideration. The US is generally regarded as having one of the best > legal systems in the world. > > · Design of both the IANA and ICANN accountability measures. Both > the CWG and the CCWG are going to engage independent legal counsel to > advise them on the design of accountability measures within the context of > California public benefits corporation law. If the legal context changes > those accountability measures may not fit properly within it; they may > become less effective or even unworkable. > > · Security concerns. As a US corporation, ICANN is forbidden by > OFAC regulations form engaging in any transactions with entities classified > as criminal or terrorist. This consideration is particularly potent for the > Administration and Congress. > > > > As to your point that “The community should be given the ability to > decide, in the future, which jurisdiction better serves the purpose of > ICANN acting in accordance to the global public interest.” , that is not > necessarily foreclosed, at some future date, depending on what mechanisms > are provided for Bylaws amendments. > > > > But for the immediate future those engaged in this transition exercise > should have some idea whether ICANN’s continued legal existence as a > non-profit California corporation is acceptable to other nations or whether > it will become the new “irritant” (as described by Secretary Strickling) > that replaces the IANA counterparty status as cause for complaint and basis > for calls for further alterations in its structure and status. > > > > This is central to the issue of whether the transition we are designing > will be stable for the foreseeable future or will just be a short-term > transitional stage from which new initiatives for change are launched not > long after the ink dries. > > > > 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 > > > > > > -----Original Message----- > From: accountability-cross-community-bounces(a)icann.org [mailto: > accountability-cross-community-bounces(a)icann.org] On Behalf Of Pedro Ivo > Ferraz da Silva > Sent: Wednesday, March 04, 2015 4:55 PM > To: 'Steve DelBianco'; Accountability Cross Community > Cc: ACCT-Staff; ccwg-accountability4(a)icann.org > Subject: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss > > > > Dear Steve, > > > > Thank you very much for the update on the Stress Tests. > > > > With respect to ST #15, it is very valuable, but I think we should be very > cautious about proposed measures. > > > > The following option makes sense and should be further debated: " If ICANN > board voted to vacate a legal presence, the community veto could enable > reversal of that decision". > > > > However, we anticipate objections to the alternative solution below: > > > > "One proposed measure is to import AoC provisions into the ICANN bylaws, > and dispense with the bilateral AoC with NTIA. Bylaws would be amended to > include AoC commitments 8, requiring it to maintain legal presence in the > US, where it is subject to legal redress by any aggrieved party." > > > > Paragraph 8 of the AoC requires US legal presence most probably due to the > present scenario where the US government (i.e.NTIA) is the steward of the > IANA functions. Once that link is no longer there, and especially because > that stewardship is being inherited by the global multistakeholder > community (stressing the word "global") a legal presence in the US (or in > any other specific country) should not be etched in stone. The community > should be given the ability to decide, in the future, which jurisdiction > better serves the purpose of ICANN acting in accordance to the global > public interest. > > > > During yesterday's call, some colleagues mentioned ICANN CEO's Testimony > in the American Senate last week. What he stated was literally: " Further, > ICANN has its global headquarters in the United States, and there are no > plans for that to change". Although such a decision/affirmation may be > debatable, it is important, once again, to stress the difference between > "headquarter location" and "legal presence/legal jurisdiction". Under e.g. > an international jurisdiction, an entity could potentially be headquartered > anywhere. > > > > Regards, > > > > Sec. Pedro Ivo Ferraz da Silva > > Division of Information Society > > Ministry of External Relations - brazil > > T: + 55 61 2030-6609 > > > > > > -----Mensagem original----- > > De: ccwg-accountability4-bounces(a)icann.org [ > mailto:ccwg-accountability4-bounces@icann.org > <ccwg-accountability4-bounces(a)icann.org>] Em nome de Steve DelBianco > Enviada em: segunda-feira, 2 de março de 2015 23:36 > > Para: Accountability Cross Community > > Cc: ACCT-Staff; ccwg-accountability4(a)icann.org > > Assunto: [ST-WP] [CCWG-ACCT] Additional Stress Tests to discuss > > > > For tomorrow’s call, we applied 4 more of our stress tests against the > draft package of proposed accountability measures. > > > > Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the > attached draft document. > > > > Stress Test: > > > > #1. Change authority for the IANA Root Zone ceases to > function, in part or in whole. > > #2. Delegation authority for the IANA Root Zone ceases to > function, in part or in whole. > > > > > > Consequence: interference with existing policy relating to > IANA Root Zone and/or prejudice to the security and stability of one or > several TLDs. > > > > > > Existing Accountability Measures: > > > > Under the present IANA contract, NTIA can revoke ICANN’s > authority to perform IANA functions and re-assign to different > entity/entities. > > > > After NTIA relinquishes the IANA contract, this measure > will no longer be available. > > > > > > Proposed Accountability Measures: > > > > The CWG planning the IANA stewardship transition might > design mechanisms and structures that enable separation, such that the IANA > functions could be readily revoked and re-assigned. > > > > To manage the revocation of IANA functions, the CWG might > also propose an emergency backup provider and procedures, pending > re-assignment of the IANA functions. > > > > > > Preliminary Conclusions: > > > > This threat is directly related to the transition of IANA > stewardship > > > > Existing measures would be inadequate after NTIA > terminates the IANA contract. > > > > At this point, CWG’s recommendations are still in > development. > > > > ——————————————————— > > > > Stress Test: > > > > #24. An incoming Chief Executive institutes a “strategic > review” that arrives at a new, extended mission for ICANN. The Board, > having just hired the new CEO, approves the new mission and strategy > without community consensus. > > > > > > Consequence: Community ceases to see ICANN as the > community’s own mechanism for discharging limited technical functions, and > views ICANN as an independent, sui generis entity with its own agenda, not > necessarily supported by the community. Ultimately, community questions why > ICANN’s original functions should remain controlled by a body that has > acquired a much broader and less widely supported mission. > > > > > > Existing Accountability Measures: > > > > As long as NTIA controls the IANA contract, ICANN could > risk losing IANA functions if it were to expand scope too broadly. > > > > The Community has some input in ICANN budgeting and Strat > Plan, and could register objections to plans and spending on extending > ICANN’s mission. > > > > California’s Attorney General has jurisdiction over > non-profit entities acting outside Bylaws or Articles of Incorporation. > > > > > > Proposed Accountability Measures: > > > > One proposed measure is empowering the community to veto > ICANN’s proposed annual budget. This measure could block a proposal by > ICANN to increase its expenditure on extending its mission beyond what the > community supported. > > > > If the ICANN board voted to approve the CEO’s plans, one > proposed measure would give the community standing to veto a board decision. > > > > Another proposed measure is empowering the community to > challenge a board decision, referring it to an Independent Review Panel > (IRP) with the power to issue a binding decision. [What would be the > standard used for this review?] > > > > > > Preliminary Conclusions: > > > > This threat is directly related to the transition of IANA > stewardship > > > > Existing measures would be inadequate after NTIA > terminates the IANA contract. > > > > Proposed measures in combination are adequate. > > > > ——————————————————— > > > > > > Stress Test: > > > > #15. ICANN terminates its legal presence in a nation where > Internet users or domain registrants are seeking legal remedies for ICANN’s > failure to enforce contracts, or other actions. > > > > Consequence: affected parties could be prevented from > seeking legal redress for commissions or omissions by ICANN. > > > > > > Existing Accountability Measures: > > > > As long as NTIA controls the IANA contract, ICANN could > risk losing IANA functions if it were to move in order to avoid legal > jurisdiction. > > > > Paragraph 8 of the AoC requires ICANN to remain > headquartered in the US, but the AoC can be terminated by ICANN at any > time. As long as NTIA controls the IANA contract, ICANN feels pressure to > maintain the AoC. > > > > > > Proposed Accountability Measures: > > > > One proposed measure is to give the community standing to > veto a board decision. If ICANN board voted to vacate a legal presence, > the community veto could enable reversal of that decision. > > > > One proposed measure is to import AoC provisions into the > ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would > be amended to include AoC commitments 8, requiring it to maintain legal > presence in the US, where it is subject to legal redress by any aggrieved > party. > > > > If ICANN’s board proposed to amend the AoC provisions > added to the bylaws, another proposed measure would empower the community > to veto that proposed bylaws change. > > > > > > Preliminary Conclusions: > > > > This threat is directly related to the transition of IANA > stewardship > > > > Existing measures would be inadequate after NTIA > terminates the IANA contract. > > > > Proposed measures improve upon existing measures, and may > be adequate. > > > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > ----- > > No virus found in this message. > > Checked by AVG - www.avg.com > > Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 > > > ------------------------------ > <http://www.avast.com/> > > Ce courrier électronique ne contient aucun virus ou logiciel malveillant > parce que la protection Antivirus avast! <http://www.avast.com/> est > active. > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > -- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow

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Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
by Drazek, Keith March 6, 2015

March 6, 2015

Hi Tijani, In light of Fadi’s statement during his February 25 Senate testimony (as quoted by Phil Corwin in another email), there may be a risk to a successful and timely IANA Transition if the AoC’s US jurisdiction language is NOT incorporated into the bylaws. Fadi’s statement that ICANN “stands by” the requirements in the AoC (and the US jurisdiction requirement in particular) and that he believes incorporating the obligations into the bylaws is a good idea has set an expectation. If that expectation is not addressed and met by the community proposal, it will be very difficult for NTIA to explain to Congress why it was omitted. This could be used by some to try to derail the transition that we all want to happen. Also, it’s important to note that Fadi’s statement was part of his prepared remarks, not an off-hand comment. In those prepared remarks, he referenced the July 2014 letter that was sent to Steve Crocker by Senators Thune and Rubio where they called for the AoC obligations to be made permanent. As such, Fadi went out of his way to assure the Senators that ICANN would remain subject to US jurisdiction and that he expected the AoC obligations to be incorporated into the bylaws, as they had requested. I hope this additional context helps. Regards, Keith From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Wednesday, March 04, 2015 6:25 PM To: 'Phil Corwin'; 'Pedro Ivo Ferraz da Silva'; 'Steve DelBianco'; 'Accountability Cross Community' Cc: 'ACCT-Staff'; ccwg-accountability4(a)icann.org Subject: Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Phil, I also was watching the senate hearing, and confirm that Fadi said that ICANN would remain subject to US jurisdiction. I also confirm that this is a very important point. It is important because the NTIA announcement of the stewardship transition calmed very much people who were always complaining that it is unfair that a single country control the Internet, a global network. Now that we have this achievement, it would be a pity to loose it because we want to put in our bylaws that ICANN will remain acting under the US jurisdiction. I know and agree that the US jurisdiction is one of the best for the not for profit corporation. I don’t say that we need to move ICANN to another jurisdiction, but I think we don’t have to make it a condition. We need a stable and predictable legal environment, and we also need to build trust and make people stop complaining. So being diplomatic in our work is really necessary for a successful and sustainable transition. -------------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: + 216 41 649 605 Mobile: + 216 98 330 114 Fax: + 216 70 853 376 -------------------------------------------------------------------------------- De : accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] De la part de Phil Corwin Envoyé : mercredi 4 mars 2015 23:29 À : Pedro Ivo Ferraz da Silva; 'Steve DelBianco'; Accountability Cross Community Cc : ACCT-Staff; ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org> Objet : Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Pedro: This is a very important point. I was in the room at the Senate Commerce hearing last week, and also at another event at the US Chamber of Commerce two days later. At both events Fadi stressed that ICANN would remain subject to US “jurisdiction" post-transition, not just maintain its nominal HQ in the US. As you correctly point out, there is a big “difference between "headquarter location" and "legal presence/legal jurisdiction". Choice of legal jurisdiction is a very important point for multiple reasons, among them: · Stable and predictable legal regime for contracted parties. As all of ICANN’s authority vis-à-vis registries and registrars is based on its contracts with them, reliable and predictable contract enforcement is a key consideration. The US is generally regarded as having one of the best legal systems in the world. · Design of both the IANA and ICANN accountability measures. Both the CWG and the CCWG are going to engage independent legal counsel to advise them on the design of accountability measures within the context of California public benefits corporation law. If the legal context changes those accountability measures may not fit properly within it; they may become less effective or even unworkable. · Security concerns. As a US corporation, ICANN is forbidden by OFAC regulations form engaging in any transactions with entities classified as criminal or terrorist. This consideration is particularly potent for the Administration and Congress. As to your point that “The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest.” , that is not necessarily foreclosed, at some future date, depending on what mechanisms are provided for Bylaws amendments. But for the immediate future those engaged in this transition exercise should have some idea whether ICANN’s continued legal existence as a non-profit California corporation is acceptable to other nations or whether it will become the new “irritant” (as described by Secretary Strickling) that replaces the IANA counterparty status as cause for complaint and basis for calls for further alterations in its structure and status. This is central to the issue of whether the transition we are designing will be stable for the foreseeable future or will just be a short-term transitional stage from which new initiatives for change are launched not long after the ink dries. 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 -----Original Message----- 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 Pedro Ivo Ferraz da Silva Sent: Wednesday, March 04, 2015 4:55 PM To: 'Steve DelBianco'; Accountability Cross Community Cc: ACCT-Staff; ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org> Subject: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Dear Steve, Thank you very much for the update on the Stress Tests. With respect to ST #15, it is very valuable, but I think we should be very cautious about proposed measures. The following option makes sense and should be further debated: " If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision". However, we anticipate objections to the alternative solution below: "One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party." Paragraph 8 of the AoC requires US legal presence most probably due to the present scenario where the US government (i.e.NTIA) is the steward of the IANA functions. Once that link is no longer there, and especially because that stewardship is being inherited by the global multistakeholder community (stressing the word "global") a legal presence in the US (or in any other specific country) should not be etched in stone. The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest. During yesterday's call, some colleagues mentioned ICANN CEO's Testimony in the American Senate last week. What he stated was literally: " Further, ICANN has its global headquarters in the United States, and there are no plans for that to change". Although such a decision/affirmation may be debatable, it is important, once again, to stress the difference between "headquarter location" and "legal presence/legal jurisdiction". Under e.g. an international jurisdiction, an entity could potentially be headquartered anywhere. Regards, Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of External Relations - brazil T: + 55 61 2030-6609 -----Mensagem original----- De: ccwg-accountability4-bounces(a)icann.org<mailto:ccwg-accountability4-bounces@icann.org> [mailto:ccwg-accountability4-bounces@icann.org] Em nome de Steve DelBianco Enviada em: segunda-feira, 2 de março de 2015 23:36 Para: Accountability Cross Community Cc: ACCT-Staff; ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org> Assunto: [ST-WP] [CCWG-ACCT] Additional Stress Tests to discuss For tomorrow’s call, we applied 4 more of our stress tests against the draft package of proposed accountability measures. Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the attached draft document. Stress Test: #1. Change authority for the IANA Root Zone ceases to function, in part or in whole. #2. Delegation authority for the IANA Root Zone ceases to function, in part or in whole. Consequence: interference with existing policy relating to IANA Root Zone and/or prejudice to the security and stability of one or several TLDs. Existing Accountability Measures: Under the present IANA contract, NTIA can revoke ICANN’s authority to perform IANA functions and re-assign to different entity/entities. After NTIA relinquishes the IANA contract, this measure will no longer be available. Proposed Accountability Measures: The CWG planning the IANA stewardship transition might design mechanisms and structures that enable separation, such that the IANA functions could be readily revoked and re-assigned. To manage the revocation of IANA functions, the CWG might also propose an emergency backup provider and procedures, pending re-assignment of the IANA functions. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. At this point, CWG’s recommendations are still in development. ——————————————————— Stress Test: #24. An incoming Chief Executive institutes a “strategic review” that arrives at a new, extended mission for ICANN. The Board, having just hired the new CEO, approves the new mission and strategy without community consensus. Consequence: Community ceases to see ICANN as the community’s own mechanism for discharging limited technical functions, and views ICANN as an independent, sui generis entity with its own agenda, not necessarily supported by the community. Ultimately, community questions why ICANN’s original functions should remain controlled by a body that has acquired a much broader and less widely supported mission. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to expand scope too broadly. The Community has some input in ICANN budgeting and Strat Plan, and could register objections to plans and spending on extending ICANN’s mission. California’s Attorney General has jurisdiction over non-profit entities acting outside Bylaws or Articles of Incorporation. Proposed Accountability Measures: One proposed measure is empowering the community to veto ICANN’s proposed annual budget. This measure could block a proposal by ICANN to increase its expenditure on extending its mission beyond what the community supported. If the ICANN board voted to approve the CEO’s plans, one proposed measure would give the community standing to veto a board decision. Another proposed measure is empowering the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures in combination are adequate. ——————————————————— Stress Test: #15. ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions. Consequence: affected parties could be prevented from seeking legal redress for commissions or omissions by ICANN. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to move in order to avoid legal jurisdiction. Paragraph 8 of the AoC requires ICANN to remain headquartered in the US, but the AoC can be terminated by ICANN at any time. As long as NTIA controls the IANA contract, ICANN feels pressure to maintain the AoC. Proposed Accountability Measures: One proposed measure is to give the community standing to veto a board decision. If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision. One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party. If ICANN’s board proposed to amend the AoC provisions added to the bylaws, another proposed measure would empower the community to veto that proposed bylaws change. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures improve upon existing measures, and may be adequate. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 ________________________________ [http://static.avast.com/emails/avast-mail-stamp.png]<http://www.avast.com/> Ce courrier électronique ne contient aucun virus ou logiciel malveillant parce que la protection Antivirus avast!<http://www.avast.com/> est active.

4 5

looking for transcript / recording from yesterday's legal sub-team meeting
by Robin Gross March 6, 2015

March 6, 2015

Hi there, When may we have the transcript / recording available on the web from yesterday's legal sub-team meeting? Thanks! Robin

2 1

Of interest to the group
by Paul Rosenzweig March 5, 2015

March 5, 2015

European views on the US ICANN politics: http://www.euractiv.com/sections/mobile-world-congress/us-election-could-tri gger-battle-over-internet-governance-312626?utm_source=EurActiv+Newsletter <http://www.euractiv.com/sections/mobile-world-congress/us-election-could-tr igger-battle-over-internet-governance-312626?utm_source=EurActiv+Newsletter& utm_campaign=71cd705bd7-newsletter_infosociety&utm_medium=email&utm_term=0_b ab5f0ea4e-71cd705bd7-245732053> &utm_campaign=71cd705bd7-newsletter_infosociety&utm_medium=email&utm_term=0_ bab5f0ea4e-71cd705bd7-245732053 P Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_me dium=email&utm_campaign=signature-us2015>

1 0

Draft legal questions
by León Felipe Sánchez Ambía March 5, 2015

March 5, 2015

Dear all, In the following link you will find the first draft set of questions developed by the legal sub-team for your review: https://docs.google.com/document/d/1xi-hs-i5z0XSicHxMjJlLiQ4xhFo1_IOQnEMXDp… <https://docs.google.com/document/d/1xi-hs-i5z0XSicHxMjJlLiQ4xhFo1_IOQnEMXDp…> Please keep in mind that this is work in progress and the list of questions is not a closed list but rather a list subject to add questions that are still missing. Robin Gross is in the process of drafting a framing letter that will provide context to the external lawyers as to where we are at now and our aims. The document is enabled so anyone with the link may comment but not edit. Please add any suggested edits as comments so they can be merged after review by the legal sub-team. I am also attaching a PDF version of the document for your convenience. Best regards, León

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Notes-Recordings-Transcript links for CCWG ACCT WP1 Meeting #3 4 March
by Brenda Brewer March 4, 2015

March 4, 2015

Dear All, The notes, recordings and transcripts for the WP1 Meeting #3 - 04 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52889993 Action Items ACTION ITEM Call for volunteers to work on Board action on bottom-up recommendations - Volunteers: Steve del Bianco, Jeff Neuman ACTION ITEM Kavouss to circulate note on .xxx ACTION ITEM - Send Steve, Fiona, Matthew your comments. ACTION ITEM: Jordan to restructure two mechanisms (WS 1/WS2), to add in the alternate suggestion ACTION ITEM - To follow up with Keith Drazek ACTION ITEM: Additional volunteers needed on community veto ACTION ITEM: Circulate templates by end of this week preferably Notes * WP1 rapporteur - Jordan Carter - walked the WP through the agenda, provided an outline of CCWG discussions held on 5 March and flagged that Rapporteurs will have a meeting with the Co-Chairs on 6 March to discuss shape of output. Feedback: - Are we addressing <http://booking.com/> booking.com -> WP2 - Consider addressing implementation (timeline etc) Affirmation of Commitments and Related Reviews Steve del Bianco walked the WP through 2A,B,C,D,E draft <https://community.icann.org/download/attachments/52888421/Draft%201-%20AoC%… nisms%20%5BSteve%20v4%5D.pdf?version=1&modificationDate=1425370283000&api=v2> https://community.icann.org/download/attachments/52888421/Draft%201-%20AoC%… isms%20%5BSteve%20v4%5D.pdf?version=1&modificationDate=1425370283000&api=v2 Feedback: - Other AoC elements should be included in the Bylaws -> 3, 4, 7, 8 are worth considering. Work is underway. Comments are welcome. - Effectiveness of GAC should not be reviewed. We should not be putting doubt on effectiveness of doubt. Suggestion to remove "and effectiveness" --> This is verbatim from AoC -->Do other reviews in bylaws include effectiveness? If so, we should keep it. - How do we guarantee implementation? --> Obligation from Board to take action.- do we want stronger language? --> Proposed language: 1) consider approval and begin implementation; 2) required action ACTION ITEM Call for volunteers to work on Board action on bottom-up recommendations - Volunteers: Steve del Bianco, Jeff Neuman - Specify which supermajority we are choosing --> we will need to determine whether 3/4 or 4/5. Supermajority should be in brackets - Concerns about courses of action/modalities ACTION ITEM Kavouss to circulate note on .xxx - TImeline needs to be revisited to allow for implementation - Output of CCTRT should be considered in design of susbequent rounds - Suggestion to delete WHOIS review and combine with CCTRT - Empower the community by allowing the community a process to introduce different types of reviews ACTION ITEM - Send Steve, Fiona, Matthew your comments. Removing ICANN Board Directors Jordan Carter walked the WP 1 through draft <https://community.icann.org/download/attachments/52888421/Accountability%20… P1%207A%20-%20Removing%20ICANN%20Directors.pdf?version=1&modificationDate=1425285656000&api=v2> https://community.icann.org/download/attachments/52888421/Accountability%20… 1%207A%20-%20Removing%20ICANN%20Directors.pdf?version=1&modificationDate=1425285656000&api=v2 Feedback: - Both options (removing of whole Board and removing individual Board members) should remain but criteria should be different. Quid of nterim? - Both should remain - separation between WSs is not obvious. Need to change the appointment rules: every appointment should be 2 persons: 1 acting and 1 back-up (if removed etc) i.e. alternates. - For individual removal, should it be community mechanism or individual SO/AC mechanism? --> Removal of individual Board member could be done by community but with consent of SO/AC - All gravitate to idea of spilling Board: should that be a necessary condition of transition? Strickling says it s a missing component. Write up with assumption it will never be used - Focus exclusively on mechanism called spill the Board and a second mechanism to recall one or several Board mechanism. Recommendation to make it done by splitting these two mechanisms - one WS1, one WS2 - Giving community opportunity to micromanage ACTION ITEM: Jordan to restructure two mechanisms (WS 1/WS2), to add in the alternate suggestion Work status The CCWG reviewed the work status matrix <https://docs.google.com/document/d/1NIrzK3mlGBbIHtdZDoAt_9Y__aPYXAH_d-OIbkg…> https://docs.google.com/document/d/1NIrzK3mlGBbIHtdZDoAt_9Y__aPYXAH_d-OIbkg… - Prevent ICANN from Imposing obligations: ACTION ITEM - To follow up with Keith Drazek - Call for volunteers to work on Board action on bottom-up recommendations - Volunteers: Steve del Bianco, Jeff Neuman - Roelof Meijer and Edward Morris volunteered to work on statutory delegates/members. - Jordan Carter volunteered to work on permanent CCWG - Volunteers are needed ACTION ITEM: Additional volunteers needed on community veto ACTION ITEM: Circulate templates by end of this week preferably A.O.B The WP discussed the Istanbul WP prep meeting. Ensure WP1 does not conflict with WP2. Next Meeting will be Wednesday, 11 March

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Fwd: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft
by Jordan Carter March 4, 2015

March 4, 2015

Dear Accountability colleagues Some sections of this paper draft being discussed in the CWG are worth noting, specifically the accountability ones. Best Jordan ---------- Forwarded message ---------- From: *Martin Boyle* <Martin.Boyle(a)nominet.org.uk> Date: Tuesday, 3 March 2015 Subject: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft To: "cwg-stewardship(a)icann.org" <cwg-stewardship(a)icann.org> Colleagues, My apologies, but following the Christmas break I failed to progress this discussion. I now attach a revised draft, still with a major outstanding issue in g. (page 2). There are two variants for g.ii. One simply reduces the previous paragraph to read "For ccTLDs, respect national sovereignty;" at the request of the GAC. The other is more closely based on, but shortens, the previous text: "For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries." The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines: 1. I have deleted the section heading "Introduction": there are no other section headings, so this appears to be superfluous. 2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC. 3. Accountability & transparency (e.): a. Paragraph i: two edits that appear to have general agreement. b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around. c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller. d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days. 4. Service levels (f.): a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations). b. Paragraph iii: Previously a stand-alone point. 5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.). 6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed. 7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion. 8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan(a)internetnz.net.nz Sent on the run, apologies for brevity

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Agenda for Call #3 WP1 - 21h UTC on Wed 4 March
by Jordan Carter March 4, 2015

March 4, 2015

Hi all Here is my proposed agenda for the call on 4 March at 21-22.30h UTC. This is based on what was stepped out in our Work Plan (at https://docs.google.com/document/d/1C7eMTu0k8KOTiRlhlt8vqAGwYc4vbl1EiiVGW6v… ) There's a lot to cover so apologies in advance if we can't discuss everything in as much depth as people would necessarily like. *1. Review of Agenda* *2. Report back from CCWG meeting* a) Outputs for the Face to Face - what do *we* in WP1 think we need to produce? *3. Discussion of Work Items* a) AOC in the bylaws - three more reviews (Steve) b) Removal of ICANN director/s (Jordan) c) GAC consensus issue (Jordan) d) any other Work Items ready for discussion *4. Next steps in our work* a) Checking in on progress with Work Items not yet discussed (the progress is mostly up to date in this: https://docs.google.com/document/d/1NIrzK3mlGBbIHtdZDoAt_9Y__aPYXAH_d-OIbkg… ) b) Checking in on exchange of items with WP2 c) Volunteers for Mechanisms focus - who can volunteer for some focused work on mechanisms in the next few days? *5. Next Meetings* a) Should we schedule a meeting for Wed 11th March at 21h UTC? (I think we will need it.) b) Discussion on need for a meeting/s between 11 March and Face to Face (including Sun 22nd in Istanbul) *6. Any Other Business* Many thanks, Jordan -- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan(a)internetnz.net.nz Skype: jordancarter *A better world through a better Internet *

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Re: [CCWG-ACCT] [Party1] template - removal of ICANN directors - draft 1
by Roelof Meijer March 3, 2015

March 3, 2015

Dear Kavouss, I agree with you, and I think with most if not all, that it would be silly (and very counterproductive) to recall the whole board if one or two (a few) of its members of it are underperforming. First of all, there would be a „safety catch”: there would never be a supermajority for such a proposal (to recall the whole board just for one or a few poor performers). And rightly so, because one or two underperforming members would hardly in any significant way prevent the proper functioning of the board as a whole. The point I tried to make in today’s call, is that the board itself presently has the power to dismiss one or more of its members. It seems nobody can recall the board ever using that power. Very likely they never have. Very likely too, they have threatened a former member or two to do so if they would stand for reelection/reappointment after their first term or not quit by themselves.. So if the board feels (or the community convinces them) that one or more under performers actually are preventing the board from properly functioning, they would surely (especially with the option looming of the whole board being recalled by the community) dismiss the underperformers. In the unthinkable situation that 1) a single or multiple board member(s) perform so poorly that the board as a whole can no longer function properly 2) the board fails to recognize that and/or fails to take action 3) the community recognizes that and stands ready to spill the whole board with a supermajority vote: a recall of the entire board is wholly justified in my opinion, as the board’s inaction indicates bad performance of the majority of the board. Best, Roelof From: Kavouss Arasteh <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: dinsdag 3 maart 2015 17:27 To: Roelof Meijer <roelof.meijer(a)sidn.nl<mailto:roelof.meijer@sidn.nl>> Cc: Robin Gross <robin(a)ipjustice.org<mailto:robin@ipjustice.org>>, "wp1(a)icann.org<mailto:wp1@icann.org>" <wp1(a)icann.org<mailto:wp1@icann.org>> Subject: Re: [Party1] template - removal of ICANN directors - draft 1 Dear All, It is an interesting subject. This is the second time that I have noted that people are just for recalling the entire Board even if every one except one or two members fail to discharge their responsibilities. Unless specifically stipulated in the Bylaw that the entire Board is collectively responsible for their collegial Performance and also responsible for individual actions one can not recall the whole Board if only one member fails to act properly Kavouss Sent from my iPhone On 3 Mar 2015, at 13:09, Roelof Meijer <Roelof.Meijer(a)sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Dear Robin, I am not too comfortable with the distinction you seem to make between noncom appointees on the board („representing the entire community in the first instance”) and members elected from SO’s and AC’s (other). We assessed that all board members first of all serve the public interest and secondly ICANN the corporation. So if in the end, the options will be to recall the board or part thereof, in my opinion the process for all board members should be the same. (However, as I stated before, I am in favor of the options being recalling the whole board on not recalling the board). That said, what kind of process do you envisage for „NomCom appointees should be recalled by the entire community”? Cheers, Roelof From: Robin Gross <robin(a)ipjustice.org<mailto:robin@ipjustice.org>> Date: maandag 2 maart 2015 21:03 To: "wp1(a)icann.org<mailto:wp1@icann.org>" <wp1(a)icann.org<mailto:wp1@icann.org>> Subject: Re: [Party1] template - removal of ICANN directors - draft 1 I think the community would want other options than only via a representative vote to spill the board. My own community would want a more directly democratic or bottom-up approach, i.e., our members would vote for themselves (rather than through a representative vote) for NCSG's vote in the question of whether to spill the board. NomCom appointees should be recalled by the entire community since that is who they should be representative of in the first instance. Thanks, Robin On Mar 1, 2015, at 2:47 PM, Steve DelBianco wrote: Just did a quick review of the inventory of accountability suggestions over last several months. All commenters talked about removing all directors, or as we say, ‘spill the board’. Only two mentioned ‘one or all’ directors. I think we are far better focusing on a mechanisms that lets a supermajority of Community representatives vote to spill the entire board. I’d even say it should be a 3/4 supermajority. From: Matthew Shears Date: Sunday, March 1, 2015 at 5:33 PM To: Jordan Carter, "wp1(a)icann.org<mailto:wp1@icann.org>" Subject: Re: [Party1] template - removal of ICANN directors - draft 1 Hi Jordan Just wondering w/r/t this: the decision would have to arise out of democratic decisions of various SOs/ACs What about those Directors who are selected by the NomCom (not selected by any particular community)? Would it make any difference? Matthew On 2/28/2015 8:43 AM, Jordan Carter wrote: Dear WP1 members I've had a go at item 7a in our work listing, the mechanism of removing ICANN directors. Attached is my first draft of that paper for your review and comment. I've kept it pretty simple, with the power basically being given to whatever mechanism we design to represent "the community". ICANN staff, could you turn this into a Google doc, and post on the Wiki? Thanks all, look forward to your thoughts. cheers Jordan -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet _______________________________________________ WP1 mailing list WP1(a)icann.org<mailto:WP1@icann.org>https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1(a)icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1(a)icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1

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Notes-Recordings-Transcript links for CCWG ACCT Session #15 03 March
by Brenda Brewer March 3, 2015

March 3, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #15 call on 03 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52889640 Action Items Action (co-chair) Can the advisors provide advice on international law and also corporate governance related to removal Action to discuss on regular calls with the CWG co-chairs. Action: Co-chairs to prepare the next meeting, agenda to include the structure of the report and of the F2F meeting. Action: Staff to provide a skeleton for the report. Notes CCWG - Call # 15 - 3 March 2015 This call is being recorded. Chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards 1. Welcome, roll-call & SOI Becky Burr and Barrack Otieno call only 2. Activity reports WP2 * followed the triggered and un-triggered format, and this demarkation broadly work On 2 calls and coordination with Jordan WP1, moved work on ICANN limited scope to WP2. * Tasks between there 2 groups compared and allocated. * Document transparency, all are part of WP1 * WP2 includes modifications, enhancements, review of exist triggered mechanisms. * These include Ombudsman, reconsideration independent review and suggestions from the community related to these. * Plus covers the compact with the community and statement of ICANN's mission and standards to carrot mission, as discussed in Singapore. * Holding weekly meetings, planning sub-group calls, and possibly a meeting on Sunday afternoon in Istanbul to prepare for the week.. * WP2 will enhance existing mechanisms, ensure that the Board can be held to its bylaws, prevent mission creep etc. * Question: When do we ask for reconsideration, what do we mean by redress, and need to agree on a definition of "community". * Definitions will be in the final report, build on initial discussions in Frankfurt * There are attempts to define "community" in the scoping document: communities are being discussed in respect at standing, and other with decisions making power. * WP2 proposing 5 new sub-groups. Work of the groups will be on the WIKI, and referred to in transcripts and notes of WP2 calls * Light-weight structures might be preferred. WP1 * Weekly meetings. Discussions about, removal of directors and defining GAC consensus. Draft templates available for most, where not they are topics transferred to WP2 or in progress. * Looking at mechanisms that make these powers work: issue of statutory members, members, supervisory board etc are the right way to make the powers work being discussed. * Example: removal of directors (note yet discussed by the working group) * Any number or all Directors might be removed. * Assumption controlling is whatever is recommended in terms of CCWG * A new mechanism * The effect of a director being removed. * Standard of the decision, objective standards are often not specified. Suggestion should follow same standards as the ICANN Board currently has to remove a Director. * Do not expect resolution before F2F * Contributes to all accountability dimensions, makes the Director more aware of all accountability mechanisms and contingencies. * A director appointed by a particular community, should that electing entity be the only one able to remove the director? Or removal by others with the support or no objection by that SO/AC * NomCom appointed directors, may require a modifies process Action (co-chair): Can the advisors provide advice on international law and also corporate governance related to removal * What infringement might trigger the process? That this is a measure of last resort * With each power there will be different triggers. Suggest powers should be attached to existing mechanisms, or one shared new group. * Initial proposal was to spill the entire board. Extreme and very difficult to trigger. Threat of use, presence enough Now making a simple concept complex, picking off single directors, objective standards of the community rather than super-majority. * WP1 will distinguish between pilling the board and powers if the individual SO/AC. Need to have graduated scale, or risk the only option is to escalate to the higher standard. * Notion of the "big stick" for WS1 topics. Recall of whole board is that big stick. removal of individual directors left as WS2. * GAC advice and how the bylaws require the Board to consider this advice. * GAC set out its own operating principles., is able to lower or raise the threshold for advice. * Suggestion of the current wording of GAC principles about consensus advice, that it is that consensus advice that triggers this reconciliation by the Board. If the GAC then changes its standard of advice, how that advice is considered by the board is a matter for the community. Codifies the status quo in the ICANN bylaws. Stress Test WP * Stress test 1 and 2, combined. * Note: intention to apply a test against a package of proposed accountability measures, so premature to apply, but is proving useful to apply to these drafts. * 1 and 2: IANA root zone change authority/delegation authority fails to function. Need to engage with the CWG. Action: to discuss on regular calls with the CWG co-chairs. * Test 24. Mission creep, CEO expands or extends ICANN's mission, lacking community consensus * Loss of confidence is ICANN and ability to perform technical functions. * Loss of confidence is ICANN and ability to perform technical functions. If in strategic plan or budget then community non-binding comment, and CA AG has authority if an organization acts outside its mission. What powers doe the CA AG have? * \Under a majority or supermajority, the community might block the budget. Mid-year, if the the community power to veto a Board decision. Or triggering an independent review, but to what standard. Collectively the proposed mechanisms seem adequate. * Is the golden bylaw is addressed by WP2 in mission and standards * Test 15. ICANN terminates its legal presence in a nation in response to litigation. * community standing to veto a board decision could prevent the board on moving. AoC in the bylaws would mean ICANN is subject to legal action by another party. Seems adequate protection against the contingency Legal Subteam * Legal scoping document, working through a number of drafts. Expect to narrow the issues and questions down by the end of the week. * Particularly aware of issues of interest to the ccTLD community * External law firm, prep calls with a short list of firms, two more interviews this week * Anti-trust issues will be considered in the scoping document. * Jurisdiction: expect further discussion with Advisors Timeline * Working towards f2f in Istanbul and readiness of the draft for public comment on April 6. * What is the structure of the F2F Istanbul, so we can play the work of the subgroups. Action: Co-chairs to prepare the next meeting, agenda to include the structure of the report and of the F2F meeting. Action: Staff to provide a skeleton for the report.. Documents Presented WP1 Drafts - http://tinyurl.com/puvneyq WP2 Drafts - http://tinyurl.com/p9yemfx ST-WP Drafts - http://tinyurl.com/mye8o3e Legal Subt Drafts - http://tinyurl.com/kajxlc4 Timeline - http://tinyurl.com/kd2u3b7

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Other forms of Accountability?
by Jeff Neuman March 3, 2015

March 3, 2015

Removing Board Directors, while taking up most of the discussion for the last few weeks does not address most of the accountability issues we have with ICANN. Not sure if you saw this article: http://www.theregister.co.uk/2015/03/02/icann_suffers_another_security_brea… Which accountability measures do we have to safeguard us from this? Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman(a)valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw

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AGENDA - Meeting #15
by Alice Jansen March 3, 2015

March 3, 2015

Dear all, Below you will find a proposed agenda in preparation for your call #1<https://community.icann.org/pages/viewpage.action?pageId=52889640>5<https://community.icann.org/pages/viewpage.action?pageId=52889640> - Tuesday, 3 March - 12:00-14:00 UTC: -- 1. Welcome, roll-call & SoI 2. Activity reports WP 1<https://community.icann.org/display/acctcrosscomm/WP1+--+Community+Empowerm…> WP 2<https://community.icann.org/display/acctcrosscomm/WP2+--+Review+and+Redress> ST-WP<https://community.icann.org/display/acctcrosscomm/ST-WP+--+Stress+Test+Work…> Legal Subteam<https://community.icann.org/display/acctcrosscomm/Legal+SubTeam> 3. Timeline 4. A.O.B 5. Next steps & Closing Remarks -- Thanks, Best regards Alice

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Notes-Recordings-Transcript links for CCWG ACCT WP2 Meeting #2 02 March
by Brenda Brewer March 2, 2015

March 2, 2015

Dear All, The notes, recordings and transcripts for the WP2 Meeting #2 - 02 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52890537 Action Items Istanbul: Looking into a meeting on Sunday, 22 March ACTION ITEM: Becky to circulate revised chart to reflect discussions Notes This call is being recorded Link to WP2 wiki <https://community.icann.org/display/acctcrosscomm/WP+2+Draft+Documents> https://community.icann.org/display/acctcrosscomm/WP+2+Draft+Documents Istanbul: Looking into a meeting on Sunday, 22 March - 5 work items were identified on Friday (refer to <https://community.icann.org/download/attachments/52888740/Principles%20For%… 2.pdf?version=1&modificationDate=1425285125000&api=v2> https://community.icann.org/download/attachments/52888740/Principles%20For%… .pdf?version=1&modificationDate=1425285125000&api=v2): 1 Contact with community on ICANN mission, core values 2 Refinement, improvement to ombudsman function 3 Refinement, improvement to reconsideration process 4 Refinement, improvement to independent review process 5 New Mechanisms Jordan and Becky have compared notes and decided new mechanisms should be moved over to WP1 Feedback: Principles for our Work: - No comments Work Item 1: - What do we mean by community? Definition needed. Suggestion to incorporate communities identified by ICG - Do you refer to mission understood to be Bylaws - have you considered AoC integrated in Bylaws? --> For volunteers to explore Is ICANN's mission other than technical? Define technical. --> Technical used to essentially limit role to reasonably necessary tasks needed to achieve coordination - How do we contact community? Would there be designated people? --> this goes hand in hand with what is the community Work Item 2: - Conflict between empowering community and giving powerful role to ombudsman - ombudsman would be a vector, not empowering. Do we need an ombudsman if we are empowering community? - Ombudsman connected with community through triggered/non-triggered Work Item 3 Work Item 4 - Suggestion to combine 3 and 4 --> Reconsider - change mind whereas independent review - assessment whether consistent with mission and core values. - First review then reconsideration - Reconsideration is made to BGC whereas independent review is more heavy-weight process involding outside arbitral body (time consuming, resources) - these are two different recourse mechanisms. Reconsideration is first step on road. Work Item 5 -- Times for regular calls will be circulated for reports on progress -- IAP-IRP CWG did ask the CCWG whether would have independent appeal mechanism for purpose of challenging delegation, redelegtions. CCWG responded we would have independent review mechanisms that might be usable by affected community but noted that some parts of community (e.g. ccNSO) feel strongly that it is their job to design any independent appeal mechanism. We might be providing tool they could use. Our task is to suggest IRP to create standards for ordinary policy issues. IRP could be used for IAP process but defining IAP standards is not within CCWG work. IAP was designed for only IANA related matters - it could be a subset of matters IRP currently takes on. ACTION ITEM: Becky to circulate revised chart to reflect discussions Volunteers Compact with Community David Post Alain Bidron David Maher Ombudsman Chris LaHatte Robin Gross Edward Morris Need: leader Reconsideration Chris LaHatte David McAuley Robin Gross Edward Morris Need: leader Independent Review Paul Rosenzweig David McAuley Jonathan Zuck Robin Gross Chris LaHatte David Post Greg Shatan David Maher Need: leader New Mechanisms Robin Gross Need: more volunteers Need: leader Standards Robin Gross Paul Rosenzweig Need: leader

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Last day to RSVP! 44 confirmed!
by Grace Abuhamad March 2, 2015

March 2, 2015

Dear all, Today is the last day to register for the F2F meeting in Istanbul. If you are planning to attend, even if your plans are tentative, please let us know. There are 44 confirmed to date (see below for more information). Wiki page: https://community.icann.org/display/acctcrosscomm/In+Person+Attendees The CCWG-Accountability will hold a face-to-face meeting in March 2015 to align with its deliverables. Dates: 23-24 March 2015 (two full working days) Venue: Hilton İstanbul Bomonti Hotel & Conference Center SILAHSOR CAD. NO: 42 BOMONTI-SISLI, ISTANBUL, 34381, TURKEY (see map here <http://www3.hilton.com/en/hotels/turkey/hilton-istanbul-bomonti-hotel-and-c onference-center-ISTBHHI/maps-directions/index.html> ) * Approved arrival is Sunday 22 March with departure on Wednesday 25 March. * ICANN will offer travel support to the CCWG-Accountability members <https://community.icann.org/pages/viewpage.action?pageId=50823968> and the three liaisons in the CCWG: Kavouss Arasteh and Keith Drazek, who are the ICG-designated liaisons, and Avri Doria, who is the ATRT Expert. While these three liaisons are participants, they play an essential role in the work of the CCWG, representing related processes that affect, and will be affected, by the output of the CCWG. * The meeting is open to anyone in the CCWG-Accountability (participants and mailing list observers) who wishes to attend in person (at their own expense). * The deadline for confirmation of all in-person attendance is Monday, 2 March. * Advisors are also eligible for ICANN funding should they attend the meeting. * The meeting will be live through Adobe Connect <https://icann.adobeconnect.com/accountability/> and include remote participation capabilities consistent with the CCWG-Accountability meetings to date. The meeting will be recorded and transcribed. In-Person Attendees: listed in order confirmed Members 1. Olga Cavalli (GAC) 2. James Bladel (GNSO) 3. León Sanchez (ALAC) 4. Sébastien Bachollet (ALAC) 5. Tijani Ben Jemaa (ALAC) 6. Jordan Carter (ccNSO) 7. Samantha Eisner (Staff Representative) 8. Roelof Meijer (ccNSO) 9. Giovanni Seppia (ccNSO) 10. Alan Greenberg (ALAC) 11. Pär Brumark (GAC) 12. Alice Munyua (GAC) 13. Steve Del Bianco (GNSO) 14. Becky Burr (GNSO) 15. Thomas Rickert (GNSO) 16. Mathieu Weill (ccNSO) 17. Robin Gross (GNSO) 18. 19. Izumi Okutani (ASO) 20. Eberhard Lisse (ccNSO) 21. Cheryl Langdon-Orr (ALAC) 22. Athina Fragkouli (ASO) 23. Jorge Villa (ASO) 24. Suzanne Radell (GAC) 25. Fiona Asonga (ASO) Bruce Tonkin (Board Liaison) sends his apologies for the meeting. Participants/Observers 1. Sabine Meyer (participant) 2. Hubert Schoettner (participant) 3. Greg Shatan (participant) 4. Chris Disspain (participant) 5. Markus Kummer (participant) 6. Kavouss Arasteh (ICG liaison) 7. Vika Mpisane (participant) 8. Avri Doria (ATRT expert) 9. 10. Finn Petersen (participant) 11. Martin Boyle (participant) 12. Keith Drazek (ICG liaison) 13. Matthew Shears (participant) 14. Pedro Ivo Ferraz Da Silva (participant) 15. Malcolm Hutty (participant) 16. 17. Paul Rosenzweig (participant) – tentative 18. Jonathan Zuck (participant) 19. Rafael Perez Galindo (participant) – tentative 20. Chris LaHatte (participant) – tentative Advisors 1. Jan Scholte 2. Lee Bygrave From: Grace Abuhamad <grace.abuhamad(a)icann.org> Date: Friday, February 27, 2015 1:50 AM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] F2F: Current List of Attendees Dear all, Link to this page: https://community.icann.org/display/acctcrosscomm/In+Person+Attendees The CCWG-Accountability will hold a face-to-face meeting in March 2015 to align with its deliverables. Dates: 23-24 March 2015 (two full working days) Venue: Hilton İstanbul Bomonti Hotel & Conference Center SILAHSOR CAD. NO: 42 BOMONTI-SISLI, ISTANBUL, 34381, TURKEY (see map here <http://www3.hilton.com/en/hotels/turkey/hilton-istanbul-bomonti-hotel-and-c onference-center-ISTBHHI/maps-directions/index.html> ) * Approved arrival is Sunday 22 March with departure on Wednesday 25 March. * ICANN will offer travel support to the CCWG-Accountability members <https://community.icann.org/pages/viewpage.action?pageId=50823968> and the three liaisons in the CCWG: Kavouss Arasteh and Keith Drazek, who are the ICG-designated liaisons, and Avri Doria, who is the ATRT Expert. While these three liaisons are participants, they play an essential role in the work of the CCWG, representing related processes that affect, and will be affected, by the output of the CCWG. * The meeting is open to anyone in the CCWG-Accountability (participants and mailing list observers) who wishes to attend in person (at their own expense). * The deadline for confirmation of all in-person attendance is Monday, 2 March. It would be helpful if you could let me know even if you are considering attending, so that we can plan for adequate space. It's always easier to downsize a room. * Advisors are also eligible for ICANN funding should they attend the meeting. * The meeting will be live through Adobe Connect <https://icann.adobeconnect.com/accountability/> and include remote participation capabilities consistent with the CCWG-Accountability meetings to date. The meeting will be recorded and transcribed. In-Person Attendees: listed in order confirmed Members 1. Olga Cavalli (GAC) 2. James Bladel (GNSO) 3. León Sanchez (ALAC) 4. Sébastien Bachollet (ALAC) 5. Tijani Ben Jemaa (ALAC) 6. Jordan Carter (ccNSO) 7. Samantha Eisner (Staff Representative) 8. Roelof Meijer (ccNSO) 9. Alan Greenberg (ALAC) 10. Pär Brumark (GAC) 11. Alice Munyua (GAC) 12. Steve Del Bianco (GNSO) 13. Becky Burr (GNSO) 14. Thomas Rickert (GNSO) 15. Mathieu Weill (ccNSO) 16. Robin Gross (GNSO) 17. 18. Izumi Okutani (ASO) 19. Eberhard Lisse (ccNSO) 20. Cheryl Langdon-Orr (ALAC) 21. Athina Fragkouli (ASO) 22. Jorge Villa (ASO) Participants/Observers 1. Sabine Meyer (participant) 2. Hubert Schoettner (participant) 3. Greg Shatan (participant) 4. Chris Disspain (participant) 5. Wolfgang Kleinwaechter (participant) 6. Erika Mann (participant) 7. Rinalia Abdul Rahim (participant) 8. Markus Kummer (participant) 9. Kavouss Arasteh (ICG liaison) 10. Vika Mpisane (participant) 11. Avri Doria (ATRT expert) 12. 13. Thomas Schneider (participant) 14. 15. Finn Petersen (participant) 16. Martin Boyle (participant) 17. Keith Drazek (ICG liaison) Advisors 1. Jan Scholte If you have any questions, please let staff know. --Grace

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Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #14 24 February
by Alan Greenberg March 2, 2015

March 2, 2015

Bruce, I have several problems with your rationale. First, decisison of the ICANN Board which hinge on how a particular (or even two) Board Members vote are few and far between, so the concept of an AC/SO turfing their Board member(s) because they did n't get something is rather hypothetical. Moreover, at least in the case, of travel budget requests, I didn't think that the Board voted on items at that level (perhaps if they did some of our requests would be looked at more kindly!). But on a higher level, do you really think that this kind of action would happen? I cannot imagine the GNSO doing something of that sort when you were Chair, nor in any time since. Nor do I think that ANY of the groups that appoint Board members would. If a Board member selected by an AC or SO is really and consistently acting in a way that the AC/SO does not appropriate, they certainly would not have selected them if they could have foreseen it, so why should they not be able to rectify the situation. Some political jurisdiction allow that with their duly elected appointees, so why not here. Although I see the attraction in having a formal set of standards to identify the more egregious sins, I believe that in reality, in the very few cases where either the Board itself or an AC/SO would be likely to recall, the reasons may well be outside of that class of problem. Alan At 28/02/2015 08:01 PM, Bruce Tonkin wrote: >Hello Roelof, > > > >> - Recall Board members if not acting in global public interest > rather than if not acting in segmented interest of a community. > Consider community capture (especially a segment of community). > >My comment on the call was about a concern that allowing segments of >the community to recall "their" Board member may move away from the >objective of ensuring that Board members primarily focus on the >global public interest in their decision making. > >I noted that under law the directors of ICANN owe a fiduciary >(http://en.wikipedia.org/wiki/Fiduciary) duty to the organization, >but I also noted that the organization was established to act in the >global public interest. When new Board members join the Board we >make clear that they have a fiduciary duty under law and must >understand the organization's financials etc, but we also make clear >that they need to act on behalf of the community as a whole, not >just the part of the community that appointed the director/s. > >The Board currently does have the power to remove a director with a >3/4 majority vote. In practice the Board sets clear expectations >for the conduct of directors through its code of >conduct: >https://www.icann.org/resources/pages/code-of-conduct-2012-05-15-en >. Also Board members must annually certify that they have read >this code, and acknowledge in writing that they understand >it. The code notes that "Board Members should not be, or appear >to be, subject to influences, interests or relationships that >conflict with the interests of ICANN or ICANN's ability to operate >for the benefit of the Internet community as a whole." > > Under the enforcement of the code of conduct - it notes that > "Serious breaches of this Code may be cause for dismissal of the > Board Member committing the infraction in accordance with ICANN's > Bylaws and applicable law." > > >I don't have a problem in principle with a segment of the ICANN >community that appoints a director having the ability to recall that >director, but would prefer that they use the same standard -ie the >Board Directors' Code of Conduct. I also don't have a problem >with the Board having the same restriction in the bylaws. > >I think we need to avoid situations where one part of the community >withdraws a Board member because a Board decision was not >particularly favourable to their part of the community - even though >the decision is in the global public interest. e.g. If one group >didn't get their budget request for travel approved, or one group >didn't like an increase in registry or registrar fees in a >particular year. This has the risk of making the board behave in a >political manner rather than focussing on the global public >interest. The Board meets with each stakeholder group at ICANN >and that is the forum where each stakeholder group can put their >case for a particular decision. Generally Board members appointed >by a particular part of a community listen to all the parts of the >community and make a decision in the interests of the community as a >whole, and don't play an active role on the Board pushing the agenda >of their part of the community. Board members from a particular par > t of the community do however help explain to other Board > members the nuances of the concerns from their part of the > community where that is not clear. > >Regards, >Bruce Tonkin > > > > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

11 18

Recall of Board members
by Chris LaHatte March 1, 2015

March 1, 2015

To add to the complexity, as the Ombudsman I have no jurisdiction on issues in relation to membership of the Board-See Bylaw V Section 3 (2) which says-" the Ombudsman shall have no authority to act in any way with respect to internal administrative matters, personnel matters, issues relating to membership on the Board.". So the original intent of the bylaws, as cited by Bruce Tonkin (with whom I agree on this issue) was to protect the directors from possible political action. By insulating the board in membership issues from the Ombudsman investigation process does this prevent for example me investigating diversity issues, which are a membership issue? Would I have a role if the community wanted a board member investigated for issues or decisions? I have had a small number of complaints about board members over the years. Is this something the community wants me to continue? I am anxious to ensure any changes to my mandate do have community support. Regards Chris LaHatte Ombudsman Blog <https://omblog.icann.org/> https://omblog.icann.org/ Webpage <http://www.icann.org/en/help/ombudsman> http://www.icann.org/en/help/ombudsman Confidentiality All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint

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Notes-Recordings-Transcript links for CCWG ACCT Session #14 24 February
by Brenda Brewer March 1, 2015

March 1, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #14 call on 24 February will be available here: https://community.icann.org/pages/viewpage.action?pageId=52889476 Action Items ACTION ITEM: Becky Burr and Kavouss Arasteh to further discuss offline ACTION ITEM: Jonathan Zuck to suggest how we could change format ACTION ITEM: Legal subteam to review and refine questions and determine whether WS1/WS2 Notes 1. Statement of interest to be uploaded/updated - contact staff if help needed 2. Activity report from Work Parties WP 1 - WP1 has developed a draft work plan, has agreed on working methods, is working with an aggressive deadline and plans to deliver WP output by March 11. - Volunteers are developing templates for each power and mechanism. Current gaps will be picked up. Editors will review content. - Triggered and non triggered categorization has been applied to items in paper, resulting in an initial allocation between two Working parties. WP1 is awaiting WP2 feedback to allocate tasks. - WP1 has structured mechanisms around powers and finds the accountability mechanism template challenging in some ways: some questions are more relevant to mechanisms and vice-versa. It envisions to produce recommendations on how to improve it. It was commented that questions would not have same relevance to both categorizations and will be reviewed and addressed as progress is made. - It was observed that a mechanism gives structure to power and there is need for a procedure and vehicle to support the power. Threshold (consensus/full consensus) also comes into play. - The recommendation is to commence with the analysis of powers and to attach them with mechanisms. - The WP1 walked the CCWG through proposed Bylaws additions on amending ICANN Bylaws to incorporate AOC reviews. The text is merged with periodic structural reviews text that currently exists in Bylaws. Edits to the AoC review process were also suggested. Feedback to suggestions included: should Bylaws give a prescriptive headcount? Stakeholder Groups being subordinates to a structure, is it really necessary to include them? ; It is important to reflect diversity and balance; While support for selections made by SO/ACs, lack of diversity was flagged as a downside and an aspect that could be preserved through selectors; Specifics may change in the future. With the objective of stable Bylaws, consider high level principles that can be included in the Bylaws instead, along with a reference to an external document where specifics would be given. In this approach a very high threshold on ability to change that document would be added; A Bylaws categorization was proposed: 1) fundamental and constitutional provisions (stable); 2 functional and operation (less stable); 3) rules relations to elections etc; consider more lengthy timelines. - No decision will be made on the call. --- WP2 - WP2 has produced a revised scoping document to reflect changes and results of WP 1 work on triggered and non-triggered. Scoping documents for WP1 and WP2 are harmonized. - Close coordination with WP 1 is needed. - A work plan and working methods (based on WP1 modus operandi) has been circulated. Standards of work will be discussed. - WP2 plans to have a document available by face-to-face meeting (17 March tentatively) --- ST-WP - ST-WP wrapped up presentation of stress test 18 (If GAC changes operating procedures from consensus to majority voting). A contributor suggested looking into the preliminary injunction (IRP) regarding delegation of Persian and noted absence of GAC advice and a group of GAC members invoking IRP. Objections were raised by another contributor i.e. outside CCWG mandate and references made to the South Africa communiqué. ACTION ITEM: Becky Burr and Kavouss Arasteh to further discuss offline - ST-WP walked the group through stress test 17 (ICANN adds a new TLD in spite of SSR concerns). Feedback included: What is our definition of success within context of stress tests?; Stress tests are going to be measures of degrees -t say yes/no answers will be rare. - No decision will be made on the call. ACTION ITEM: Jonathan Zuck to suggest how we could change format 3. Legal Subteam Update - Questions have been suggested and the Subteam is awaiting questions from WP1 and WP2. - Robin is working on framing questions into a letter that can be delivered to law firm that will be selected. Background and context will be included. - Call with final list of law firms will be held. Update on final candidate that will be put forward for hiring by ICANN will be shared asap. - Questions are divided into 3 categories: 1) corporate governance; 2)jurisdictional matters; 3) protection of ICANN, antitrust and other law suits. - Given concerns about ccTLD delegation and redelegations remedies (e.g. dispute resolution), feedback is needed. - Feedback included: formulate questions to be list of powers and ask for mechanisms that can accomplish powers as opposed to putting mechanisms up; frame questions using how to trigger response (as opposed to yes/no); lawyers need to know what our requirements are so that can advise what empowerment can be implemented. In context of jurisdictional: global survey of jurisdiction can take ages and cost a fortune; changing jurisdiction will make transition impossible: the group needs to decide if these questions are for WS1; Keep jurisdictional issues open: are there any arbitration or international panel can go to for jurisdictional issues, is there a way to get step into resolution with something simpler to begin with; Jurisdiction might be too complicated, keep it simple (recall Board, Independent Appeals mechanism etc). ACTION ITEM: Legal subteam to review and refine questions and determine whether WS1/WS2 4. F2F meeting - Confirmed for 23-24 March 2015 at Hilton Istanbul Bomonti Hotel & Conference Center. - Agenda will be circulated in time. - Discussing May F2F meeting in coordination with CWG-stewardship leadership. 5. A.O.B The CCWG discussed removal of individual Board members with a note that architecture needs to be revisited if allowing for entire Board or individual Board. Feedback includes: - Current Bylaws allow that Board can dismiss individual board members if CoI. Individual removal might lead to unhealthy environment, create a witch hunt. - Be careful to not penalize whole group if one group is concerned. - Spilling of Board is a nuclear option and disruptive step. We are seeking incremental, implementable ways to challenge Board decision. The community does not have anybody that represents their interest. We need ability to override and challenge decision. - Board members are appointed because they share a mindset if not in line with mindset, should be able to remove this Board member. There is also the case of NomCom appointed members: ability to remove them is needed. Significant consensus among SO/ACs would be needed the member would be removed for serious reasons. On the other hand, removal of entire Board is a whole set of issues (interim etc). - A mechanism is needed for the three above: spilling entire board is not disruptive as long as there is a defined method; spilling an individual Board members is a SG/C decision, not a community decision to make. Recall mechanism within process defined for NomCom would take a lot more time. Vote of non-confidence on the Board or all the other need to be in WS1. - Predictability and stability is important: recall of Board members will undermine predictability/stability. Consider reducing term and don't reelect. - Recall Board members if not acting in global public interest rather than if not acting in segmented interest of a community. Consider community capture (especially a segment of community). - We should not allow community removal of one Board member in particular must come from the concerned community.

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Re: [CCWG-ACCT] US Senate Committee Hearing on 2016 Budget for Dept of Commerce: Testimony on IANA Transition
by Greg Shatan March 1, 2015

March 1, 2015

The issues that the CCWG is dealing with may be broader, and our definitions of capture are broader as well, The direct point of this email thread is more specific: what type of capture is the U.S. Senator referring to, which Commerce Secretary Pritzker then also refers to? For better or worse, I think they are referring to the risk of capture by certain foreign governments the U.S. views as antithetical to a free and open Internet -- hence the term "hostile takeover" is used. I think some leading suspects are named in the transcript. Some Senators at least will be looking to see how we've solved that particular problem. On Saturday, February 28, 2015, Tijani BEN JEMAA < tijani.benjemaa(a)fmai.org.tn> wrote: > I agree with the 2 remarks of Chris: The risk of capture comes from any > government or intergovernmental organization, as well as any other group. > > CCWG is about defining mechanisms of accountability of ICANN to its > community, and we have defined 4 accountability purposes: > > · Comply with its own rules and processes > > · Comply with applicable legislation, in jurisdictions where it > operates > > · Achieve certain levels of performance as well as security > > · Ensure decisions are for benefit of the public, not just for a > particular set of stakeholders > > The 4th purpose is to avoid any capture from any party. > > > > > -------------------------------------------------------------------------------- > > *Tijani BEN JEMAA* > > Executive Director > > Mediterranean Federation of Internet Associations (*FMAI*) > > Phone: + 216 41 649 605 > > Mobile: + 216 98 330 114 > > Fax: + 216 70 853 376 > > > -------------------------------------------------------------------------------- > > > > > > > > > > *De :* accountability-cross-community-bounces(a)icann.org > <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces(a)icann.org');> > [mailto:accountability-cross-community-bounces@icann.org > <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces(a)icann.org');>] > *De la part de* Chris Disspain > *Envoyé :* dimanche 1 mars 2015 00:20 > *À :* Greg Shatan > *Cc :* accountability-cross-community(a)icann.org > <javascript:_e(%7B%7D,'cvml','accountability-cross-community(a)icann.org');> > *Objet :* Re: [CCWG-ACCT] Fwd: US Senate Committee Hearing on 2016 Budget > for Dept of Commerce: Testimony on IANA Transition > > > > Hi Greg, > > > > I believe this issue falls into the remit of CCWG, and needs to be in > Work Stream 1 so that it is part of the package ultimately considered by > the NTIA. > > > > Can we first get clear what the issue actually is. > > > > I assume it is NOT ‘capture of ICANN by *foreign* governments in the long > term’ is it? > > > > Is it capture by governments generally? Or is it capture by any group? > > > > > > > > Cheers, > > > > Chris > > > > On 1 Mar 2015, at 09:37 , Greg Shatan <gregshatanipc(a)gmail.com > <javascript:_e(%7B%7D,'cvml','gregshatanipc(a)gmail.com');>> wrote: > > > > All: > > Here's an email that I recently sent to the CWG. In response, Seun > Ojedeji noted the Senator's concern with the possible capture of ICANN by > foreign governments in the long term, and that a key goal of the transition > must be protecting ICANN from any possible capture as it continue to > operate IANA.I believe this issue falls into the remit of CCWG, and needs > to be in Work Stream 1 so that it is part of the package ultimately > considered by the NTIA. > > Greg > > ---------- Forwarded message ---------- > From: *Greg Shatan* <gregshatanipc(a)gmail.com > <javascript:_e(%7B%7D,'cvml','gregshatanipc(a)gmail.com');>> > Date: Sat, Feb 28, 2015 at 12:23 PM > Subject: US Senate Committee Hearing on 2016 Budget for Dept of Commerce: > Testimony on IANA Transition > To: "cwg-stewardship(a)icann.org > <javascript:_e(%7B%7D,'cvml','cwg-stewardship(a)icann.org');>" < > cwg-stewardship(a)icann.org > <javascript:_e(%7B%7D,'cvml','cwg-stewardship(a)icann.org');>> > > > All: > > The US Senate held a hearing on the Department of Commerce's 2016 Budget > (2016 commences October 1, 2015). A transcription was just published, and > I've excerpted (as is) the Senators' questions and Secy. Pritzker's answers > relevant to the IANA Transition -- see below. The full transcript may be > found at: > > http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument… > > (FYI, much more time was spent on fishing, the paper industry and weather > forecasting than on IANA) > > > > Greg > > SEN. RICHARD C. SHELBY HOLDS A HEARING ON THE FY2016 FUNDING REQUEST AND > BUDGET JUSTIFICATION FOR THE COMMERCE DEPARTMENT > > February 26, 2015 Thursday > > EVENT DATE: February 26, 2015 > > TYPE: COMMITTEE HEARING > > LOCATION: WASHINGTON, D.C. > > COMMITTEE: SENATE COMMITTEE ON APPROPRIATIONS, SUBCOMMITTEE ON COMMERCE, > JUSTICE, SCIENCE, AND RELATED AGENCIES > > SPEAKER: SEN. RICHARD C. SHELBY, CHAIRMAN > > WITNESSES: > > SEN. RICHARD C. SHELBY, R-ALA. CHAIRMAN > > WITNESSES: PENNY PRITZKER, SECRETARY, THE DEPARTMENT OF COMMERCE > > > > … > > > > SHELBY: Senator Langford. > > > > LANGFORD: Thank you. Thanks for being here as well. > > > > PRITZKER: Thank you. > > > > LANGFORD: I'm grateful to be able to have the conversation. I want to talk > a little bit about where we stand with ICAN (inaudible) conversation and > DNA. So my questions--I'm sorry, DNS, not DNA. DNA would be fun to talk > about as well, by the way, if you want to talk about that. > > > > The budget request has a note in it that I thought was interesting. It > says FY 2016 NTIA will continue to develop, implement and advocate policies > positioned in the U.S. to meet growing complexities and political > challenges related to internet governance and the domain-named system. Tell > me the status of where you are headed on this. And obviously Congress has > spoken back on it and is a little hesitant. So specifically, while you're > talking about the status on it, how are you balancing the foreign policy > objectives with United States commerce? And I mean commerce as a whole of > our business world and how dependent we really are on this internet. > > > > PRITZKER: Well, let me start by saying our NTIA role is stewardship of the > internet. And so moving--our goal has been to continue to move ICAN to a > multi-stakeholder model. And, in fact, we deal directly with ICAN and the > leadership of ICAN and their CEO is coming in tomorrow. > > > > LANGFORD: Can I interrupt for just a second? The question there is the > why? And I think it's the foreign policy question. > > > > PRITZKER: Why? > > > > LANGFORD: Why try to move that outside of our stewardship? Has it been a > problem that we've been the steward with it? Why remove American > stewardship from the internet? > > > > PRITZKER: Well, the challenge and we--we're not giving up our stewardship > of the internet. But the challenge that we face with the ICAN-IANA > transition is this is--and, first of all, we're not going to give up our > position of overseeing the IANA domain name situation unless we can > ourselves there's a multi-stakeholder process and it's not going to be > jeopardized, that there's going to stability and resiliency and security in > the domain name system and that it meets the needs of global customers, and > it remains that the internet will remain free and open. > > > > The challenge we face in our role is the perception of our goal in the > global environment. There is a lot of pressure, as you said, from foreign > governments to, in essence, take over control of the internet and try and > create places where governments are in control of what's happening with the > internet. We think that is the wrong direction to go, and therefore we feel > we're really an oversight. ICAN is actually performing the IANA functions. > And so our goal is that ICAN continue to perform those functions, but the > appearance of our engagement creates this notion that the U.S. is a > government in control and that's against where we ultimately--we want to be > able to argue with the rest of the world. That's not what we want to see > for the internet. > > > > LANGFORD: Right. I understand. And the skepticism is when we release the > first generation, there may be some good oversight of that. And then what > happens five years from now, etc.? So what happens with China and Russia? I > just want to be able to express some continuing skepticism. > > > > PRITZKER: Senator, I share your concern about that. And one of the > criteria that I've said is we've asked for ICAN to explain to us how > they're going to be accountable to a multi-stakeholder process and there > cannot be what I call a hostile takeover of ICAN. > > > > LANGFORD: Correct, and I would affirm that. > > > > … > > > > KUNTZ: Let me ask about a very different field for a moment, if I might, > which is ICAN. When I was in the private sector, I did some work around web > domains and website acquisition and control. We had a trademark, the > company I was in, that had been inappropriately taken over as a web domain > by a company with no relationship to it, and I got involved in this. > > > > This was a long time ago and I was struck at how at that point NTIA was > playing a critical role in oversight of ICAN, the Internet Corporation for > Assigned Names and Numbers, which I think is widely known to the small > community of people who pay a lot of attention to this. And I'm frankly > very concerned that there is a proposal to transition ICAN completely away > from the Commerce Department oversight and management, and I just want to > make sure that ICAN is really prepared to make that transition and will > have adopted some core key principles about protection from government > capture, budgetary restraint and a separation of functions, and this is > something I wrote to you about back in December and co-sponsored a > resolution that passed in the Senate calling for these reforms before there > is any transition. I just wanted to make sure that I had your sense of > whether you thought these reforms were important to complete before there > was any movement towards it. > > > > PRITZKER: Well, Senator, I share your concern. I think the transition at > the IANA transition is one that's important because there are down sides > for our engagement there. Having said that, making sure that we don't--that > ICAN can responsibly continue to carry out that function, making sure that > it is multi-stakeholder managed and driven, making sure it meets the needs > of customers and in a timely and efficient manner, and that we remain a > free and open internet. All of those are priorities. > > > > We are awaiting proposals. We're not in any rush. We're working very > carefully with ICAN, but we're waiting for proposals as to how they can > make sure they would satisfy all those performance requirements and also > proposals for how they will improve the accountability of ICAN so that > there cannot be what I call a hostile takeover of the board of ICAN. > > > > Copyright 2015 CQ Transcriptions, LLC > All Rights Reserved > CQ Transcriptions > > > > > > > -- > > *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* > > *Partner** | IP | Technology | Media | Internet* > > *666 Third Avenue | New York, NY 10017-5621* > > *Direct* 212-885-9253 *| **Main* 212-949-9022 > > *Fax* 212-949-9190 *|* *Cell *917-816-6428 > > *gsshatan(a)lawabel.com > <javascript:_e(%7B%7D,'cvml','gsshatan(a)lawabel.com');>* > > *ICANN-related: gregshatanipc(a)gmail.com > <javascript:_e(%7B%7D,'cvml','gregshatanipc(a)gmail.com');>* > > *www.lawabel.com <http://www.lawabel.com/>* > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community(a)icann.org');> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > ------------------------------ > <http://www.avast.com/> > > Ce courrier électronique ne contient aucun virus ou logiciel malveillant > parce que la protection Antivirus avast! <http://www.avast.com/> est > active. > > -- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan(a)lawabel.com <gsshatan(a)lawabel.com>* *ICANN-related: gregshatanipc(a)gmail.com <gregshatanipc(a)gmail.com>* *www.lawabel.com <http://www.lawabel.com/>*

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Fwd: US Senate Committee Hearing on 2016 Budget for Dept of Commerce: Testimony on IANA Transition
by Greg Shatan March 1, 2015

March 1, 2015

All: Here's an email that I recently sent to the CWG. In response, Seun Ojedeji noted the Senator's concern with the possible capture of ICANN by foreign governments in the long term, and that a key goal of the transition must be protecting ICANN from any possible capture as it continue to operate IANA.I believe this issue falls into the remit of CCWG, and needs to be in Work Stream 1 so that it is part of the package ultimately considered by the NTIA. Greg ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Sat, Feb 28, 2015 at 12:23 PM Subject: US Senate Committee Hearing on 2016 Budget for Dept of Commerce: Testimony on IANA Transition To: "cwg-stewardship(a)icann.org" <cwg-stewardship(a)icann.org> All: The US Senate held a hearing on the Department of Commerce's 2016 Budget (2016 commences October 1, 2015). A transcription was just published, and I've excerpted (as is) the Senators' questions and Secy. Pritzker's answers relevant to the IANA Transition -- see below. The full transcript may be found at: http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument… (FYI, much more time was spent on fishing, the paper industry and weather forecasting than on IANA) Greg SEN. RICHARD C. SHELBY HOLDS A HEARING ON THE FY2016 FUNDING REQUEST AND BUDGET JUSTIFICATION FOR THE COMMERCE DEPARTMENT February 26, 2015 Thursday EVENT DATE: February 26, 2015 TYPE: COMMITTEE HEARING LOCATION: WASHINGTON, D.C. COMMITTEE: SENATE COMMITTEE ON APPROPRIATIONS, SUBCOMMITTEE ON COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES SPEAKER: SEN. RICHARD C. SHELBY, CHAIRMAN WITNESSES: SEN. RICHARD C. SHELBY, R-ALA. CHAIRMAN WITNESSES: PENNY PRITZKER, SECRETARY, THE DEPARTMENT OF COMMERCE … SHELBY: Senator Langford. LANGFORD: Thank you. Thanks for being here as well. PRITZKER: Thank you. LANGFORD: I'm grateful to be able to have the conversation. I want to talk a little bit about where we stand with ICAN (inaudible) conversation and DNA. So my questions--I'm sorry, DNS, not DNA. DNA would be fun to talk about as well, by the way, if you want to talk about that. The budget request has a note in it that I thought was interesting. It says FY 2016 NTIA will continue to develop, implement and advocate policies positioned in the U.S. to meet growing complexities and political challenges related to internet governance and the domain-named system. Tell me the status of where you are headed on this. And obviously Congress has spoken back on it and is a little hesitant. So specifically, while you're talking about the status on it, how are you balancing the foreign policy objectives with United States commerce? And I mean commerce as a whole of our business world and how dependent we really are on this internet. PRITZKER: Well, let me start by saying our NTIA role is stewardship of the internet. And so moving--our goal has been to continue to move ICAN to a multi-stakeholder model. And, in fact, we deal directly with ICAN and the leadership of ICAN and their CEO is coming in tomorrow. LANGFORD: Can I interrupt for just a second? The question there is the why? And I think it's the foreign policy question. PRITZKER: Why? LANGFORD: Why try to move that outside of our stewardship? Has it been a problem that we've been the steward with it? Why remove American stewardship from the internet? PRITZKER: Well, the challenge and we--we're not giving up our stewardship of the internet. But the challenge that we face with the ICAN-IANA transition is this is--and, first of all, we're not going to give up our position of overseeing the IANA domain name situation unless we can ourselves there's a multi-stakeholder process and it's not going to be jeopardized, that there's going to stability and resiliency and security in the domain name system and that it meets the needs of global customers, and it remains that the internet will remain free and open. The challenge we face in our role is the perception of our goal in the global environment. There is a lot of pressure, as you said, from foreign governments to, in essence, take over control of the internet and try and create places where governments are in control of what's happening with the internet. We think that is the wrong direction to go, and therefore we feel we're really an oversight. ICAN is actually performing the IANA functions. And so our goal is that ICAN continue to perform those functions, but the appearance of our engagement creates this notion that the U.S. is a government in control and that's against where we ultimately--we want to be able to argue with the rest of the world. That's not what we want to see for the internet. LANGFORD: Right. I understand. And the skepticism is when we release the first generation, there may be some good oversight of that. And then what happens five years from now, etc.? So what happens with China and Russia? I just want to be able to express some continuing skepticism. PRITZKER: Senator, I share your concern about that. And one of the criteria that I've said is we've asked for ICAN to explain to us how they're going to be accountable to a multi-stakeholder process and there cannot be what I call a hostile takeover of ICAN. LANGFORD: Correct, and I would affirm that. … KUNTZ: Let me ask about a very different field for a moment, if I might, which is ICAN. When I was in the private sector, I did some work around web domains and website acquisition and control. We had a trademark, the company I was in, that had been inappropriately taken over as a web domain by a company with no relationship to it, and I got involved in this. This was a long time ago and I was struck at how at that point NTIA was playing a critical role in oversight of ICAN, the Internet Corporation for Assigned Names and Numbers, which I think is widely known to the small community of people who pay a lot of attention to this. And I'm frankly very concerned that there is a proposal to transition ICAN completely away from the Commerce Department oversight and management, and I just want to make sure that ICAN is really prepared to make that transition and will have adopted some core key principles about protection from government capture, budgetary restraint and a separation of functions, and this is something I wrote to you about back in December and co-sponsored a resolution that passed in the Senate calling for these reforms before there is any transition. I just wanted to make sure that I had your sense of whether you thought these reforms were important to complete before there was any movement towards it. PRITZKER: Well, Senator, I share your concern. I think the transition at the IANA transition is one that's important because there are down sides for our engagement there. Having said that, making sure that we don't--that ICAN can responsibly continue to carry out that function, making sure that it is multi-stakeholder managed and driven, making sure it meets the needs of customers and in a timely and efficient manner, and that we remain a free and open internet. All of those are priorities. We are awaiting proposals. We're not in any rush. We're working very carefully with ICAN, but we're waiting for proposals as to how they can make sure they would satisfy all those performance requirements and also proposals for how they will improve the accountability of ICAN so that there cannot be what I call a hostile takeover of the board of ICAN. Copyright 2015 CQ Transcriptions, LLC All Rights Reserved CQ Transcriptions -- *Gregory S. 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