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 9, 2015

March 9, 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 9, 2015

March 9, 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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