April 2015 - Accountability-Cross-Community

member organization and single membership structure
by Roelof Meijer July 10, 2015

July 10, 2015

From: Roelof Meijer <roelof.meijer(a)sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 14:16 To: Mathieu Weill <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>>, "accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>" <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>>, Thomas Rickert <rickert(a)anwaelte.de<mailto:rickert@anwaelte.de>>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>> Subject: member organization and single membership structure Dear co-chairs, all, Two points: 1) I stopped my participation in yesterday night’s (my time) CCWG call somewhere halfway agenda item “5. Legal advice”. Mainly because I think we’re wasting so much precious time with the discussion on and comparison of two models, of which one should have been written off sometime back. My earlier emails copied below should provide more information on my rationale, but should also serve as formal input into the process. 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off. So, co-chairs: what is happening here or what have I missed? Best, Roelof On Fri, Apr 17, 2015 at 11:10 AM, Roelof Meijer <Roelof.Meijer(a)sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Dear Jordan, all, I couldn’t attend the call, so I probably missed something. But how did we end up with the two law firms we hire stating: „On balance, “member” organization provides the clearest path for the ICANN community to exercise the mechanisms and powers under consideration. „ and our rapporteur concluding: "Following the CCWG meeting on 10 April, the rapporteur had assumed there would be clarity regarding the proposed mechanism. This has not occurred„ Best, Roelof On Sun, Apr 19, 2015 at 12:25 PM, Roelof Meijer <Roelof.Meijer(a)sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Greg, Jordan, What I fail to understand is that -because we do not have the expertise „in house”- we hire two firms that are experts in this field, they give us their shared opinion and we do not follow that. It seems to me that this is one of those things that makes this whole process sometimes so slow and incredibly time consuming. Do not misunderstand me, I respect the legal experts we have in the CCWG. But we pay (ICANN pays, so the internet community pays) dearly for this advice, they are both renown firms that we took quite some time to select. Why not accept the outcome and move forward, spending our precious time on all the work that still has to be done? Best, Roelof On Mon, Apr 20, 2015 at 11:04 AM, Roelof Meijer <Roelof.Meijer(a)sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Greg, Thanks for that. Still, if I look at the difference in "amount of boxes ticked" in the part „summary of desired powers” of the slide deck of 14 April prepared by counsel, I see no point in continuing to evaluate counsel’s advice re designators. Maybe you can help me out on another point though. In their memorandum/legal assessment of April 10, Sidley and Adler & Colvin mentioned the possibility of a „sole membership” structure. Meaning –as far as I understood it- that not every AC and every SO would become a member (and thus would have to become a legal entity), but the group of representatives of the SO’s and AC’s would form a single legal entity and would become ICANN’s sole member. I have sent several emails to this list suggesting we follow this up as one of the serious possibilities, without –as far as I am aware- any effect. Do you have any idea what happened to this particular part of counsel’s advice? Best, Roelof Groet, Roelof

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Ominous update on the IANA transition
by Edward Morris May 4, 2015

May 4, 2015

Hi, I think this post on the NCSG list by Dr. Mueller might be of interest to those of us working on Accountability. Best, Ed Morris ---------- Forwarded message ---------- From: Milton L Mueller <mueller(a)syr.edu> Date: Thu, Apr 30, 2015 at 2:27 PM Subject: Ominous update on the IANA transition To: NCSG-DISCUSS(a)listserv.syr.edu Dear NCSG: It’s now official: ICANN doesn’t even want to let the IETF have a choice of its IANA functions operator. Those of you who read my blog post on ICANN’s interactions with the numbers community <http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-…> will already know that ICANN is refusing to accept the consensus of the numbers community by recognizing its contractual right to terminate its IANA functions operator agreement with ICANN. In that blog, I referred to second-hand reports that IETF was encountering similar problems with ICANN. Those reports are now public; the chairs of the IETF, IAB and IETF Administrative Oversight Committee have sent a letter to their community <http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html> noting that ICANN is refusing to renew their supplemental service level agreement because it includes new provisions designed to facilitate change in IANA functions operators should IETF become dissatisfied with ICANN. These are truly shocking moves, because in effect ICANN’s legal staff is telling both the numbers and the protocols communities that they will not accept the proposals for the IANA transition that they have developed as part of the IANA Stewardship Coordination Group (ICG) process. In both cases, the proposals were consensus proposals within the affected communities, and were approved by the ICG as complete and conformant to the NTIA criteria. Thus, ICANN is in effect usurping the entire process, setting itself (rather than ICG and NTIA) as the arbiter of what is an acceptable transition proposal. The key point of conflict here seems to be the issue of whether ICANN will have a permanent monopoly on the provision of IANA functions, or whether each of the affected communities – names, numbers and protocols – will have the right to choose the operator of their global registries. Separability is explicitly recognized by the Cross community working group on Names as a principle to guide the transition, and was also listed as a requirement by the CRISP team. And the IETF has had an agreement with ICANN giving them separability since 2000 (RFC 2860 <https://tools.ietf.org/html/rfc2860>). Yet despite the wishes of the community, ICANN seems to insist on a monopoly and seems to be exploiting the transition process to get one. Of course, a severable contract for the IANA functions is the most effective and important form of accountability. If the users of IANA are locked in to a single provider, it is more difficult to keep the IANA responsive, efficient and accountable. Given the implications of these actions for the accountability CCWG, I hope someone on that list will forward this message to their list, if someone has not noted this event already. Milton L Mueller Laura J. and L. Douglas Meredith Professor Syracuse University School of Information Studies http://faculty.ischool.syr.edu/mueller/ Internet Governance Project http://internetgovernance.org

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Re: [CCWG-ACCT] [Acct-Legal] Fwd: Legal question
by Chris Disspain May 1, 2015

May 1, 2015

Hi León, Really? They are fairly simple questions. As I said, I can ask them on the call. Cheers, Chris On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> wrote: > Thanks Greg, > > I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow. > > > Best regards, > > > León > >> El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> escribió: >> >> I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel. >> >> >> Greg Shatan >> >> ---------- Forwarded message ---------- >> From: Chris Disspain <ceo(a)auda.org.au> >> Date: Tue, Apr 21, 2015 at 12:03 AM >> Subject: [CCWG-ACCT] Legal question >> To: Accountability Cross Community <accountability-cross-community(a)icann.org> >> >> >> Hello All, >> >> I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call. >> >> Under the current structure of ICANN and its SOs and ACs >> >> 1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws? >> >> 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto? >> >> 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding? >> >> 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? >> >> >> >> >> Cheers, >> >> >> >> Chris >> >> >> On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> wrote: >> >>> All, >>> >>> I am forwarding this document from Counsel for your records and for its relevance for our overall work. >>> >>> >>> Best regards, >>> >>> >>> León >>> >>>> Inicio del mensaje reenviado: >>>> >>>> Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> >>>> Fecha: 17 de abril de 2015 22:21:36 GMT-5 >>>> De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> >>>> Asunto: [Acct-Legal] (no subject) >>>> Responder a: ccwg-accountability5(a)icann.org >>>> >>>> >>>> >>>> Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly >>>> >>>> HOLLY J. GREGORY >>>> Partner >>>> >>>> Sidley Austin LLP >>>> +1.212.839.5853 >>>> holly.gregory(a)sidley.com >>>> >>>> >>>> >>>> **************************************************************************************************** >>>> 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. >>>> >>>> **************************************************************************************************** >>>> >>> <Legal Assessment_ Governance Chart.pdf> >>>> _______________________________________________ >>>> Ccwg-accountability5 mailing list >>>> Ccwg-accountability5(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> 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 >> >> >> _______________________________________________ >> Ccwg-accountability5 mailing list >> Ccwg-accountability5(a)icann.org >> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 >

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AOC type Reviews and Fundamental bylaws.
by Avri Doria May 1, 2015

May 1, 2015

Hi, The issue came up of AOC type review bylaws being or not being fundamental bylaws in the context of the CWG IANA Review Function. The possibility of tagging individual bylaws as fundamental or not was mentioned. If such a capability exists, I would recommend that the bylaw defining the Accountability and Transparency Review be tagged as a fundamental bylaw. avri --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com

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Question raised on this morning's Legal SubTeam Call
by Samantha Eisner May 1, 2015

May 1, 2015

In furtherance to my comments yesterday on the CCWG and in follow up to my comments on the Legal SubTeam call, I request that we receive an answer to the following question: Are there any statutory rights that are given to individual members in a membership organization that are difficult to constrain? If so, what are those statutory rights and to what extent can they modified? For example, if an individual has a statutory right to bring a derivative action (file suit) against the organization, can that individual member's statutory right to bring such an action be limited to, for example, areas where the community had already collectively acted and the Board had not followed that action? Or would individual members always be allowed to pursue actions in their own right, even where others in the community might not agree? As discussed yesterday on the CCWG call, this is an area where we may need to modify the Stress Test document, and I was not able to get insight into this question on our legal sub team call today. Thanks, Sam

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Fwd: Ominous update on the IANA transition
by Robin Gross April 30, 2015

April 30, 2015

Forwarding Milton Mueller's response upon request. > ---------- Forwarded message ---------- > From: Kavouss Arasteh <kavouss.arasteh(a)gmail.com> > "These are truly shocking moves, because in effect ICANN’s legal staff is telling both the numbers and the protocols communities that they will not accept the proposals for the IANA transition that they have developed as part of the IANA Stewardship Coordination Group (ICG) process" > > Unqoute > Please kindly before making it more cotraversial, kindly advise the official and formal announcemnertt of the above, > > MM: Kavouss, your comment reveals that you do not understand the situation. ICANN has made no formal announcement about its position regarding RIR and IETF contracts, and _that is precisely the problem_. We learned about these problems from a public report on private discussions made by a CRISP team member who has met with ICANN legal to discuss the CRISP proposal. If ICANN had made an official and formal announcement, we would know a lot more about who we are dealing with, what their position is, any why. Thus, it is pointless for you to insist on an “official and formal announcement” before action can be taken. > > 2. You also stating that > Quote > " these proposals were approved by the ICG as complete and conformant to the NTIA criteria" > Unquote > I do not recall that ICG has ever formally approved any proposals.They were submitted discussed, several questions raised which have been recently replied but the replies were not examined by ICG. .Consequently I do not agree with that statement. > > MM: The proposals were reviewed. No challenges to their completeness or their consensus status were upheld. A potential compatibility issue raised by the RIR/CRISP proposal to deal with IANA-related intellectual property and domain was resolved. But it is true that we have not completed our review, because we do not have the names proposal yet. > > 3. You also stated that > "Thus, ICANN is in effect usurping the entire process, setting itself (rather than ICG and NTIA) as the arbiter of what is an acceptable transition proposal* > > This is your impression which are not shared by the ICG. > > MM: I did not claim to speak for ICG, but for you to say this view “is not shared by the ICG” makes it seem as if you are speaking for ICG. In fact, all ICG members who have expressed a view on this issue have agreed that it is a concern, although not all would use my direct language. Everyone who has spoken up so far has called for a statement to be made by ICG calling for transparency. You are the only person who is trying to cover up the problem. No one has supported your view. It is your view that, quite literally, is not shared by the ICG. > > 4. You understood that > > "The key point of conflict here seems to be the issue of whether ICANN will have a permanent monopoly on the provision of IANA functions, or whether each of the affected communities – names, numbers and protocols – will have the right to choose the operator of their global registries." > This is agin your interpretation. > Nothing has yet been discussed not decided whether each OC would have its own IANA Function operator separately or commonly > We should not jump intop any conclusions . > > MM: Of course this is my interpretation. Is it correct? The issue of separability has been discussed extensively in all three communities. You incorrectly think of it as a question of whether each OC will have a separate IANA function operator. All communities could have the right to terminate their contract without necessarily splitting into three distinct IANA functions operators. For numbers and protocols, it already has been decided that they will have the right to have their own IFO and the right to terminate the contract. > > 5.You did indicate > Quote > " Separability is explicitly recognized by the Cross community working group on Names as a principle to guide the transition" > Unquote , > OPlease point me toward the expilic decision or conclusion of CWG on that issue. > > MM: I see you are not well informed about the CWG. > See Annex C in the current draft proposal of the CWG. > https://www.icann.org/en/system/files/files/cwg-stewardship-draft-proposal-… > Principle 9 says: “Separability: any proposal must ensure the ability: > i. To separate the IANA Functions from the current operator (i.e. ICANN) if warranted and in line > with agreed processes; > ii. To convene a process for selecting a new IANA Functions Operator; and > iii. To consider separability in any future transfer of the IANA Functions > > 6. You indicated > Quote > " Separabilityand was also listed as a requirement by the CRISP team. And the IETF has had an agreement with ICANN giving them separability since 2000 (RFC 2860). Yet despite the wishes of the community, ICANN seems to insist on a monopoly and seems to be exploiting the transition process to get one" > Unquote. > Pls provide formal statement by ICANN that they do not wish to maintain the current arrangement with or without reasons > Then we will reveiew their standing position and then comment > > MM: See my answer to your first point above. >

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Re: [CCWG-ACCT] Message from Holly Gregory
by León Felipe Sánchez Ambía April 30, 2015

April 30, 2015

Hi Holly, Yes. Just forwarded it to both lists. Thanks, León > El 30/04/2015, a las 15:17, Gregory, Holly <holly.gregory(a)sidley.com> escribió: > > Leon, can you have this posted? > > > > Sent with Good (www.good.com <http://www.good.com/>) > > From: Fuller, Miles > Sent: Thursday, April 30, 2015 02:20:03 PM > To: accountability-cross-community(a)icann.org > Cc: León Felipe Sánchez Ambía; Gregory, Holly > Subject: Re: Message from Holly Gregory > > Dear Legal Sub-Team, > > Per your request, attached please find: > > · The revised Sidley – Adler & Colvin Legal Assessment: Executive Summary, Summary Chart and Revised Governance Chart Memorandum. > · The Sidley – Adler & Colvin memorandum regarding unincorporated associations (please note that we are in the process of updating this memorandum to address issues raised in CCWG calls). > · The Sidley – Adler & Colvin Legal Assessment: Proposed Accountability Mechanisms Preliminary Response to Legal Sub-Team Templates (WP2) memorandum which includes the Annex A IRP Memo. > > Best, > > MILES FULLER > Associate > > Sidley Austin LLP > +1.213.896.6036 > wfuller(a)sidley.com <mailto:wfuller@sidley.com> > > > > **************************************************************************************************** > 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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Fwd: [Acct-Legal] Change-Pro Comparison
by León Felipe Sánchez Ambía April 30, 2015

April 30, 2015

Forwarding this information from the lawyers for review and comment. Best regards, León > Inicio del mensaje reenviado: > > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: Re: [Acct-Legal] Change-Pro Comparison > Fecha: 30 de abril de 2015 12:33:04 GMT-5 > Para: "Gregory, Holly" <holly.gregory(a)sidley.com>, "'ccwg-accountability5(a)icann.org'" <ccwg-accountability5(a)icann.org> > Cc: Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, "ICANN(a)adlercolvin.com" <ICANN(a)adlercolvin.com>, "accountability-cross-community(a)icann.org" <accountability-cross-community(a)icann.org> > Responder a: ccwg-accountability5(a)icann.org > > > Dear Legal Sub-Team, > > Per your request, attached please find: > > · The revised Sidley – Adler & Colvin Legal Assessment: Executive Summary, Summary Chart and Revised Governance Chart Memorandum. > · The Sidley – Adler & Colvin memorandum regarding unincorporated associations (please note that we are in the process of updating this memorandum to address issues raised in CCWG calls). > · The Sidley – Adler & Colvin Legal Assessment: Proposed Accountability Mechanisms Preliminary Response to Legal Sub-Team Templates (WP2) memorandum which includes the Annex A IRP Memo. > > Best, > > MILES FULLER > Associate > > Sidley Austin LLP > +1.213.896.6036 > wfuller(a)sidley.com <mailto:wfuller@sidley.com> > > From: Gregory, Holly > Sent: Thursday, April 30, 2015 9:19 AM > To: 'ccwg-accountability5(a)icann.org' > Cc: accountability-cross-community(a)icann.org; ICANN(a)adlercolvin.com; Sidley ICANN CCWG > Subject: FW: Change-Pro Comparison > > Dear Leon and Legal Sub-Team, > > Attached please find comments from Sidley and Adler & Colvin on the draft proposal. We suggest that you read the red line version attached. Also attached is a slightly revised chart for the appendix. > > Let us know if you would like to discuss any of our suggested revisions. > > Kind regards, Holly > > HOLLY J. GREGORY > Partner > > Sidley Austin LLP > +1.212.839.5853 > holly.gregory(a)sidley.com <mailto:holly.gregory@sidley.com> > > > > > > > **************************************************************************************************** > 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. > > **************************************************************************************************** > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability5

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NomCom 6.6.5.g.2
by Alan Greenberg April 30, 2015

April 30, 2015

This section currently reads: Alternatively, a special committee of the NomCom could be established to deal with removal petitions when they arise. Such a "Recall Committee" would have as chair a previous NomCom Chair and would otherwise be formulated on the same basis as the regular NomCom. Either option is legally viable. As mentioned by both Cheryl and I, the implications of "and would otherwise be formulated on the same basis as the regular NomCom" are vast and likely not what this group really needs. I would strongly suggest that the phrase be omitted. We could either defer the details of this alternative until after the public comment (and perhaps ask for input), or defer it until WS2. Also as noted, the sentence "Either option is legally viable." applies to both options 1 and 2 and should be the 2nd sentence of the base item g. Alan

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Feedback requested - CCWG Engagement plan
by Mathieu Weill April 30, 2015

April 30, 2015

Dear all, As discussed, we are moving this discussion to the list as our time on the calls is pretty busy with more urgent matters. We have put together a proposed engagement plan to help disseminate and socialize the progress we have made to date. Attached and below you will find an outline of our suggested toolkit for your consideration. The engagement plan was essentially designed to help set the stage for our public comment period and prepare for discussions to be held at the ICANN meeting in Buenos Aires. As we ran out of time on our call last week to discuss the plan, we would be very grateful if you could please share any objections or comments you may have by 16/04. Webinars Webinars are an excellent tool to walk interested individuals through our milestones and initial conclusions. Together with a Q&A, it is a great way to provide a comprehensive overview of our mandate, activities and collect some initial feedback to guide us through our next steps or identify areas that need clarification, if any. We suggest organizing a repeat session to accommodate all timezones. Webinars are recorded, transcribed and ICANN may also book language services, as deemed needed. We suggest locking 09:00-10:30 UTC and 18:00-19:30 UTC on Wednesday, 29 April. Interviews Interviews are a great way for us to share our unique perspectives and to explain the process in our own words. We suggest continuing this outreach effort as work evolves. Videos We suggest creating a video which would be a compilation of pods assembling storytelling information and progress updates using, among other things, excerpts from interviews, nteractive graphics to facilitate and deepen understanding of our work and of how it is bridged to other processes. The Xplane team would help translate the process into graphics. The video could be a good way to reach a broader audience. Mailing-List We would like to suggest setting up a mailing-list where anyone would be in a position to send feedback or comments on an ongoing basis. This list would be an additional avenue for the community to submit feedback. We suggest kicking this off after our public comment closes to allow for continuous feedback. This is a tool that has been very useful in some processes: the ATRT for instance. Members Activities led by members of the CCWG to update their respective memberships (and beyond) are of essence in socializing the work of the CCWG and Cochairs recognize all the efforts that are being conducted. It is a key component of the engagement plan altogether. Sharing discussions held with your communities and flagging issues that were brought up – if any – will help us prepare for the public comment period and proactively unearth some of the issues and concerns that might be raised to address them before our report is issued. Receiving this information will help us get a sense of what will be problematic and optimize the outcome of our public comment period. We look forward to your feedback. Thanks, Best regards Mathieu -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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