April 2015 - Accountability-Cross-Community

Agenda - 24 April
by Alice Jansen April 24, 2015

April 24, 2015

Dear all, This is to inform you that agendas for your 24 April sessions were refined based on day 1 discussion: open slots were populated with items. Please refer to the attached or to the text pasted below. Updates are highlighted in yellow in the below. Thanks! Best regards Alice DAY 2: Friday, 24 April Session 1<https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+1> - 08:00 - 10:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+&iso=201…>) 1. Recap of day 1 (5') 2. Section 8 - Work stream 2 proposals (20') 3. Discussion of Sections 1 -> 5 (15') 4. Questions for public comment report (to be provided by CoChairs) (15') 5. Community Mechanisms (60') 6. Next Steps (5') Session 2<https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+2> - 13:00 - 14:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+&iso=201…>) 1. Recap of session 1 (5') 2. Section 6.7.1 - Preserving ICANN commitments from the AoC (20') 3. Section 6.7.2 - AoC Reviews - 2nd reading (15') 4. Section 6.8 - Bylaws changes suggested by stress tests - 2nd reading (15') 5. Next Steps (5') Session 3<https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+3> - 16:00 - 19:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+&iso=201…>) 1. Recap of session 2 (5') 2. Outstanding stress tests - Stress tests where the contingency does not appear to be fully mitigated (20') a. Including stress test 21: Government official demands rescind of a ccTLD 3. Second reading of outstanding issues for public comment report (120') 4. Next Steps - Work Plan (30')

1 0

Notes-Recordings-Transcript links for LEGAL SubTeam Meeting #13 - 23 April
by Brenda Brewer April 24, 2015

April 24, 2015

Dear all, The notes, recordings and transcripts for the Accountability LEGAL SubTeam Meeting #13 - 23 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52897284 A copy of the notes from the session may be found below. Thanks, Best regards Brenda Action Items: none Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Leon: Will work through the questions with the legal advisors. Voting threshold and super majorities. Can open the door to a tyranny of the masses. Where a small group can block and issues. Supermajority typically 66%. Get to 75% and can open the way to some blocking. Might reach that level for constitutional (type) decisions, but do run a risk. Need to do math to see what the risks might be. And might be in the Articles rather than the bylaws. Need to figure that out. Care with abstentions. If too many abstain then the decision can be made by a very small group If there is concern about a group like the GAC then they might continue as now without voting rights. If GAC. for example, made as a member of the organization there is some risk that someone may come to dominate the GAC and therefore capture the process. Q. Caretaker board in the event of removal of the whole board. Can a caretaker board be implemented and how implemented. Need a simultaneous mechanism to put a board in place, There are ways to hold a board on place, but they are likely to quit. Can put people in as placeholders, knowing you will run a selection process later. This caretaker board has all the powers of the board, they are caretaker in name only. Removal of a whole board is unusual, and need to think about how under CA law and other jurisdictions, needs research and not an immediate response. Good news is CA law allows flexibility in how to address this. Can it be installed so it allow an uninterrupted operation of ICANN? Some certainty would be helpful when proposing this community power. Q. Can the SO/AC form unincorporated associations, while maintaining their current status in ICANN? A. Yes. And already much of what's needed is in the bylaws. All advice suggests is needed is a simple article of incorporation that write in the sections from the ICANN bylaws, and they claim status associated. And the SO/AC can continue as they had before. And as a member they could then exercise certain legal rights. They wouldn't have assets and no actives per se. The activities would still occur in the ICANN corporation, and these parallel structures would hold the contract rights, etc. Q. Are there any liabilities associated with unincorporated association over and above what we have now. Individual members would not be liable (legal advice currently considers), they would be members of the association. The designators and member organizations are taking specific actions, the members are not. Legal advice is that the liability issue is not a concern. Q. Currently the Board controls many of the features of the various SOAc and of their subcomponents. Would that still be the case as unincorporated associations can rely on ICANN board governance It depends on ICANN board governance. And thinking through how the new parallel structure might look like. Current arrangements may not change Q. Can the SO/AC be dissolved? It will be protected by the new powers, and it can still dissolve itself. Can have provisions on the bylaws about the membership that the board couldn't change, but the members could. There are some easy to fix concerns. International concerns and unincorporated associations. SO/AC, to want them not to be unincorporated does leave them open to liability as you enhance community powers. And the use of unincorporated associations does give additional protections. The bylaws drafted in a way, to provide that ICANN would be indemnifying the organizations, or the individuals acting for the organizations. Working to ensure there would be no greater liability than community has today Q. If SO/AC remove their directors, then NomCom would remove theirs, and this goes to the issue of the NomCom's independence. Pre-appointment letter would probably work for NomCom. Community vote: the vote is through the designators or members. Comment: The NonCom doesn¹t need to become an unincorporated association to create and unincorporated association. This would be an alter-ego for the NomCom. Deliverables. Questions as presented during the call. 1, 3, and 4 addressed. Q 2, counsel need more time to look into, but short answer is the caretaker board can be implemented. And the rest of the questions will be addressed. Short answers for each. END

1 0

Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 3 - 23 April
by Alice Jansen April 24, 2015

April 24, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 1 Session 1 - 23 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+3 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Alice ---- IN SUMMARY Recap of session 2 ACTION ITEM - Read legal counsel's executive summary of membership/designator models Revised Mission, Commitments & Core values ACTION ITEM - Insert suggestion regarding numbering resources in mission language AGREEMENT - The following proposal is to be plugged into the public comment: setting policy through a bottom-up, consensus–based multistakeholder process Fundamental Commitments & Core Values ACTION ITEM - Becky to remove "commits" and identify new terminology ACTION ITEM - State why 8.b is not in the document and whether it is fundamental Fundamental Bylaws ACTION ITEM - Add a memo to address request regarding numbering resources ACTION ITEM - Clarify that do not intend to change the current process ACTION ITEM - Reflect numbering policy-related document in edits ACTION ITEM - Rediscuss whether 18.1 should be listed as fundamental Bylaw AGREEMENT - Fundamental Bylaws will be integrated into public comment period Independent Review Panel Enhancements AGREEMENT - any outcomes from IRP would not be appealable under the proper IRP process but there would always be opportunity to challenge this decision in court of law AGREEMENT - Remove question 2 ACTION ITEM - Submit final wording to legal counsel to ensure it is appropriate ACTION ITEM - Replace "internal" with independent review panel ACTION ITEM - Clarify independence requirements Reconsideration Process Enhancements AGREEMENT - DIDP to be dealt with within WS2 AGREEMENT - The document can be used as is basis - DIDP is deferred to WS2. Welcome additional questions from WP2. Encourage community to look at items that are encapsulated in template SESSION CONCLUSIONS We have reviewed WP2. On mission and core values: fine-tuning is needed. We have open questions on how we address 18.1 and whether we want this as fundamental bylaw. Legal implications needed. We are close to final agrement on fundamental Bylaws. We have received a confirmation on legal feasibility on IRP and we have outlined key aspects of architecture for public comment. Lot of work is needed on details but we are on the right track for the public comment process. This also applies to the reconsideration process. We will resume some of open questions tomorrow and will come out with significant progress to report to the community. ---------- NOTES (Notes have not been reviewed by CCWG-CoChairs yet) These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Michael Clark, Leon Sanchez not in the Adobe Connect Room Recap of session 2 We have not yet turned around the updated version of the document we worked on. It is due to issues encountered with notes. It will be sent shortly. Please read executive summary on membership/designator - community mechanisms executive summary legal counsel produced. With respect to Board recall: NomCom proposal and threshold will be discussed tomorrow. It was a useful discussion which shows we have ways to move forward ACTION ITEM - Read legal counsel's executive summary of membership/designator models Revised Mission, Commitments & Core values Substantive discussions were held in Istanbul and during meeting #20. An easy-to-use document was assembled to highlight changes from existing Bylaws and plug in AoC language. Text has been annotated to describe sources. A revised version including minor edits (in purple) or core values and commitments was circulated to circulate WP1 work on AoC. It corresponds to language that is in frozen draft (on p. 44). Feedback - References to consensus policy and specification 1 - pointer to section of a contract does not belong in Bylaws. Why are we restricting to consensus policy? --> This language is not intended to be final Bylaws language - agree that final language would not necessarily refer to specification 1. - Our mission is to develop policy based on consensus. Policy mission is used in contracts and bylaws i.e. picket fence: eligible to be changed immediately after approval of implementation of policy that changes contracts that are already enforced. They don't necessarily have effect of changing contract already in force. for instance, new gTLD. We need to discuss: 1) raison d'etre i.e. develop policy; 2) Enforceability i.e. A policy that converges consensus policy would be binding for contracting parties. A pragmatic way forward would be to use language referring to policy without specifying consensus policies. - Unless otherwise specified in Bylaws etc, we should go by consensus. - Policy issued by SOs should carry consensus. - Consensus policy has a defined contractual term: policies main only relate to gNSO space. There are also policies that relate to CCs and numbering. Let's not confuse that. - Ok to say mission is to develop community by consensus. There are a lot of policies that will not alter contract when setting them. - Would bottom up, community-based policies be a possible substitute? --> Combination of this language and language from Alan along with specific language of policies for which global coordination is necessary to preserve security, stability etc might work. Problem can be solved by specific language. - We are talking about how to constrain ICANN to its mission - for example: how must we deal with timezone database? Outside mission. Netmundial - outside mission. We need to give this organization the opportunity to breathe. - With consensus of community, consensus policy could be set and required. - Proposal: setting policy through a bottom-up, consensus-based multistakeholder process - Could you achieve consensus through bottom-up? - Need to bear in mind there are different definitions of consensus in various groups at ICANN. - Reminder to use CCWG draft report v1.1 for deliberations. - IP address and number resources: is the intention to leave it as it is? ACTION ITEM - Insert suggestion regarding numbering resources in mission language AGREEMENT - The following proposal is to be plugged into the public comment: setting policy through a bottom-up, consensus–based multistakeholder process Fundamental Commitments & Core Values - Proposal to change text on p. 23 "employ... processes" - Should be acknowledged ICANN is operating as an open, multistakeholder etc organization? - Fundamental Commitments - We have added language from articles of incorporation that references international law in order to make it durable RECAP - CCWG to further digest language that was suggested – will reopen, as needed. Moving to the "purple version" document - 4-23 Commitments and Core Values circulated by Becky prior to call Link: https://community.icann.org/download/attachments/52897394/4-23%20Annotated%… Edits reflect AoC and WP1 AoC language. - Wordsmithing should be taken offline. - ICANN "commits" should be changed to ICANN "shall". Revisit this terminology ACTION ITEM - Becky to remove "commits" and identify new terminology - Request to discuss 8.b AoC. --> 8 a and 8 c were brought in as additional values. According to a careful read of existing bylaws - article 18 - covers 8b and says "shall" --> We should explicitly state the above. Is 8.b going to be fundamental? --> Why make 18.1 fundamental? --> 18.1 is existing bylaws and is consistent with AoC 8.b but open question whether 18.1 needs to be flagged as fundamental. ACTION ITEM - State why 8.b is not in the document and whether it is fundamental - What parts of these mission and values belong in articles of incorporation? One will create legal restriction. Wording needs to be flexible enough. Legal comments should be taken into consideration as drafting occurs. Fundamental Bylaws Memo was circulated yesterday. Conclusions from Istanbul were reinforced on 31 March. We had agreed on scope, principles and have legal confirmation it is feasible. Discussion today will be about additional elements provided in memo about thresholds to propose, to approve and about the process. We should also consider Jan Scholte advice: if we set threshold too high, we might create inability to change. - This memo says there will be a provision in bylaws that lists which will be fundamental. There may be parts of removal process that make more sense to leave in Bylaws rather than incoporating them into fundamental Bylaws. It would be easier to have all fundamental into one place but it would make Bylaws in general less difficult to use and would becloud transparency. - Why is the process only identified for Fundamental Bylaws changes that are identified by the Board/Staff? What if its a proposal recommended through a community process? --> There is a range of ways changes to Bylaws might come into existence. Wherever they emerge from they end up at Board making decision. - Is this process to be invoked only after Board has approved Bylaws? Do we have opportunity to reflect as part of public comment? If Board putting something out for public comment is trigger, Bylaws arise from different directions in organization and impact differently. -->There is no intention to change current process. Paragraph a deliberately uses through usual processes. The Board would need to cast higher majority. There is no intention to limit. We are trying to interfere as little as possible with current process. We do not need to be stuck in detail on where Bylaw is coming from. - Things work differently for numbers and names. Suggestion to add a memo that this description is considered to be applicable to numbering policy for further consideration to be made. ACTION ITEM - Add a memo to address request regarding numbering resources ACTION ITEM - Clarify that do not intend to change the current process - How will ideas be reflected into public comment period document? --> Everything that starts into 6.3 will be pasted in document for public comment ACTION ITEM - Reflect numbering policy-related document in edits ACTION ITEM - Rediscuss whether 18.1 should be listed as fundamental Bylaw AGREEMENT - Fundamental Bylaws will be integrated into public comment period Independent Review Panel Enhancements This is one of the most important goals to achieve. There is an existing process. We need to improve process. We have reviewed input that process only takes into account process but does not go into substance. Many commenters raised question or concern that if we were to design enhanced IRP, this panel would need to look into susbtance-related issues (in additional to procedural matters). The most relevant issues are the open questions in the document: outcome (binding or not), finality (can be appealed or not), selection, composition, independence, diversity and size of panel. - Outcomes, finality of process, selection process for panelists, size of panel, diversity, independence issues would benefit from public input. What is the level of input we would seek from community? - We have received memo from legal counsel. - IRP process can be enforceable - it is limited by scope of parties and there are couple of exceptions. It can be enforceable for a vast number of areas. Parties have great flexibility in designing process and these rules are vital. Agreement in our context would be in ICANN Bylaws - binding - we could insert agreement through which they become for members and arbitrators and it does not exclude third parties. - Arbitration is enforceable under Federal Arbitration Act. Prevailing party could take decision to court and have a court order to obtain complaint. Court will make sure it reflects due process. Award will be made strongly enforceable and can be taken to many countries: they are broad international acceptation of these awards. - Two exceptions exist: 1) Powers reserved to members: if community wants to have certain power reserved to members it can be reserved to members in documents that sets up membership structure. Powers of the members is superior to Board and IRP. It is a strong accountability measure; 2) Board fiduciary: there is a limitation in the law that matters are so material to the Board that it would undermine statutory obligations and fiduciary roles to allow IRP to bind Board. IRP would have ability to issue advisory rulings. - If there is an arbitration between two parties - the challenge to that in court would be a very limited one. Ground to changing are essentially to Federal courts - would not look back to substance. - Rule of decision is a flexible one. Whatever standard of decision, we could have rule of decision be what the group wanted. - Third parties could agree to process when they go into it. RECAP: IRP finality can either be a final solution or subject to appeals - - The IRP can be structured as arbitration body. - IRP can be binding - we won't need to recall Board to have Board take the IRP decision as binding but spilling the Board would be explored if they didn't act. - AGREEMENT - any outcomes from IRP would not be appealable under the proper IRP process but there would always be opportunity to challenge this decision in court of law - The standing to go to court would be determined by rules of that court. Parties to the agreement generally. - Understanding from Istanbul: IRP could issue limited set of decisions that could cancel decision from Board, cancel act or ask for a redo but not completely change the substance of a decision. Limited set of outcomes and last resort created balance. - Who decides on limits and criteria? - IRP evaluting action or inaction against mission, core values provision would be standard against which ICANN would be measured. --> The first instance set up as panel would have to decide whether it views itself as having jurisdiction. - The scope of the IRP appears limited to the parties involved, while the issues raised in any given case would be either of interest to the broader community and/or could set a precedent. So what happens if the IRP parties come to some form of agreement that is not considered acceptable to others? --> It would not be uncommon to allow intervention from parties. - IRP would be suitable for determining or challenging act of ICANN staff to determine in carrying out its mission, its acting in accordance with core values etc. This is the starting point of any IRP. - Does the IRP have an appeal process for any outcome/decision? Clarification needed. -> That is not the usual approach. Parties that volunteer agree to committing themselves. If demonstrated procedural error (IRP exceeded scope), appeal can be taken. People do create appeal mechanisms for arbitration. AGREEMENT - Remove question 2 - Decisions are final (no appeal) - The panel can only be of the following types : confirm decisions, or cancel decisions, partially or totally ACTION ITEM - Submit final wording to legal counsel to ensure it is appropriate - We are talking about mechanism that would be internal to ICANN - would be looking at ICANN experts. - We could have panelists nominated by Board and confirmed by the community. They could be proposed by international arbitration body. There would be separation of powers with respect to selection. They would be required to have expertise and skillset . We may be confusing people with "internal" language. We are looking for standing panel of arbitrators and the intention is to have them independent. ACTION ITEM - Replace "internal" with independent review panel In Istanbul, we discussed diversity and proposed the following selection process: 1) third party proposes names; 2) Board selects and 3) community group confirms. - There should be criteria that panels should not have engaged with ICANN for a x number of year. - Suggestion that requirement for them to remain Independent post term. ACTION ITEM - Clarify independence requirements - We first need to define size of panel befor discussing diversity - For example - panel of 7 arbitrators - 3 could be called upon to hear case and make decision. We would need 5 or 7 in all cases - could choose one etc. We are talking about small number of panelists - panelists who could be chosen to hear cases and called to form panel. - Difficult to reach geographical diversity --> It is critical hence minimum of 5 – put out question for community whether want to have extra arbitrators around. --> Diversity is one thing to strive for but should not be hard requirement. Agreement proposed standing panel 5-7 and decision between 1-3 to be put out for public comment. Open question: the Standing Panel members should have diversity in geographic and cultural representation. Diversity of experience will be considered in completing the composition of the Panel. We could consult community on this. Reconsideration Process Enhancements The reconsideration request process is defined in Bylaws. Reforms are not really significant - they are tailored to address specifc changes. - We have increased amount of time a person has to file request. We have increased standard of action. We have added transparency requrirements, improvements, posting rationale within timeline, recordings/transcripts transparency, opportunity to review documentation, deadline, determine that it would go to Ombudsman first and that decision would be made by entire Board. - What is the rationale for timeframe? --> To know how long it is taking people to get decision back would be useful - There have been discussions regarding strenghtening DIDP AGREEMENT - DIDP to be dealt with within WS2 Adding core values and mission, is that sufficient to revalue substance of a decision? --> Any decision could be challenged by anyone. What does this mean for finality of being able to accept that ICANN decision has been taken. There was pushback on broadening of scope. This was reaction to meet both sides of that concern. --> We have enough examples over years where community feels bad decision was made. Would this have changed any of the outcomes? --> Data would be needed. - Suggestion to couple this with fundamental Bylaws section related public comment questions. AGREEMENT - The document can be used as is basis - DIDP is deferred to WS2. Welcome additional questions from WP2. Encourage community to look at items that are encapsulated in template SESSION CONCLUSIONS We have reviewed WP2. On mission and core values: fine-tuning is needed. We have open questions on how we address 18.1 and whether we want this as fundamental bylaw. Legal implications needed. We are close to final agrement on fundamental Bylaws. We have received a confirmation on legal feasibility on IRP and we have outlined key aspects of architecture for public comment. Lot of work is needed on details but we are on the right track for the public comment process. This also applies to the reconsideration process. We will resume some of open questions tomorrow and will come out with significant progress to report to the community.

1 0

Fwd: [Acct-Legal] IRP question
by León Felipe Sánchez Ambía April 23, 2015

April 23, 2015

Dear all, I am forwarding counsel answer to the question: Can the IRP be binding either by statute, contract or otherwise? This will surely help us in our discussion on point 6.4 of the Draft report in the call that is ongoing. Best regards, León > Inicio del mensaje reenviado: > > Para: "'ccwg-accountability5(a)icann.org'" <ccwg-accountability5(a)icann.org> > Fecha: 23 de abril de 2015 14:12:21 GMT-5 > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] IRP question > Responder a: ccwg-accountability5(a)icann.org > > Dear CCWG and Legal Subteam, > > Below please find the Sidley and Adler & Colvin response to the question assigned in the email that follows regarding the potential binding effect of the IRP: > > Yes, the outcome of the IRP process can generally be binding against all parties who have agreed to its terms, subject to two exceptions discussed below. > · The agreement to be bound by the IRP process would be expressed in the ICANN Bylaws, applicable to the Board, directors, officers, staff, and members or designators; it would also be part of any separate contract among the members or designators pertaining to ICANN governance. > · Any third party that agreed to be bound by the IRP process could also use the mechanism. > · Judgments of the IRP functioning in a manner constituent with the Federal Arbitration Act would be enforceable in the U.S. courts (and <> in the courts of other countries that accept international arbitration results). > · Two exceptions exist: > 1. Members. Those specific matters reserved to the members of the entity in the articles or bylaws. For example, if the budget is reserved to final approval of the members, and the members chose to overrule the Board on the budget, then the members would have the final word and IRP could not arbitrate the budget. If the members, and not the Board, are to decide an issue, then the IRP process would not apply because the power of the members is superior to the powers of both the Board and the IRP, based on the bylaws established by the members. > 2. Board Fiduciary. Those matters that are so material to the Board that it would undermine its statutory obligations and fiduciary roles to allow the IRP to bind the board. The Board cannot contract with another party to have its exercise of management responsibilities arbitrated. > These exceptions exist because some fundamental limits on the jurisdiction of the IRP are necessary to avoid having the IRP become unaccountable. If such a quasi-judicial function had unlimited jurisdiction, it could effectively become a super-board or a super-member (but without all the checks and balances that have been laboriously developed by the CCWG). Even in areas at the core of ICANN governance, however, the IRP could issue advisory rulings that would need to be reviewed and considered in good faith by the Board. > Holly J. Gregory > Sidley > > > ] -----Original Message----- > From: ccwg-accountability5-bounces(a)icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org>] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam > Sent: Thursday, April 16, 2015 9:11 AM > To: ccwg-accountability5(a)icann.org <mailto:ccwg-accountability5@icann.org> > Subject: [Acct-Legal] IRP question > > Counsel, > > As discussed in our call yesterday and with the prioritization set in mind, can I kindly ask you to provide us with a high level and very concrete answer on whether the IRP can be binding whether by statute, contract or otherwise? > > This will help us a lot on our discussion in our Tuesday call. > > As always, we appreciate your work under pressure. > > > Best regards, > > > León > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org <mailto:Ccwg-accountability5@icann.org> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 <https://mm.icann.org/mailman/listinfo/ccwg-accountability5> > > > **************************************************************************************************** > 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 <mailto:Ccwg-accountability5@icann.org> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 <https://mm.icann.org/mailman/listinfo/ccwg-accountability5>

1 0

Fwd: [Acct-Legal] As Requested Yesterday
by León Felipe Sánchez Ambía April 23, 2015

April 23, 2015

Dear all, I am forwarding this information from the lawyers which is an executive summary that aims to help everyone to better understand where we are at on the different questions that have been assigned to them so far. I kindly ask you to pay special attention to Anex A (page 5 of the document) which contains a summary chart comparing how different powers would play against the different corporate structures being discussed. I hope this information is useful to feed our discussions these days. Thanks to the lawyers for putting this document together in such a short notice. Best regards, León > Inicio del mensaje reenviado: > > Para: "'ccwg-accountability5(a)icann.org'" <ccwg-accountability5(a)icann.org> > Fecha: 23 de abril de 2015 12:25:53 GMT-5 > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] As Requested Yesterday > Responder a: ccwg-accountability5(a)icann.org > > > Dear CCWG and Legal SubTeam, > > On behalf of Sidley and Adler & Colvin, attached please find the executive summary of the information provided in the Memorandum and Governance Chart that we provided to you on April 20, 2015, as requested yesterday. > > Also provided are the one-page chart you requested yesterday summarizing and comparing the six powers under the four models that have been discussed in our meetings (Annex A, the “Summary Chart”), and a revised Governance Chart, as requested, with conclusions added to the headline of each power (Annex B, the “Revised Governance Chart”). > > 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 <mailto:Ccwg-accountability5@icann.org> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 <https://mm.icann.org/mailman/listinfo/ccwg-accountability5>

1 0

Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 2 - 23 April
by Brenda Brewer April 23, 2015

April 23, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Intensive Meeting Day 1 Session 2 - 23 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+2 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Brenda CCWG Intensive Meeting - Day 1 - 23 April - Session 2 This session is being recorded. LINKS Intensive Meeting Program: https://community.icann.org/pages/viewpage.action?pageId=52897568 Draft Report Dedicated Webpage: https://community.icann.org/display/acctcrosscomm/Draft+Report Working Methods: https://community.icann.org/download/attachments/52897394/CCWG%20Intense%20… ods%20-.pdf?version=1 <https://community.icann.org/download/attachments/52897394/CCWG%20Intense%20… hods%20-.pdf?version=1&modificationDate=1429569720331&api=v2> &modificationDate=1429569720331&api=v2 AGENDA 1. Recap of session 1 (5') 2. Section 6.6.5 - Power: Recalling individual ICANN Directors (25') 3. Section 6.6.6 - Recall the entire Board (25') 4. Recap and next steps (5') NOTES These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Recap: discussed the two options around the mechanisms, agreement the on the structure an composition of the mechanisms. Also discussed the reconsideration and rejection of the budget and strategic plan and reopen discussion this later today. An agreement on WP1 decision threshold. Agreement on rejection and changes of ICANN bylaws and after first reading agreed on the text as drafted. Section 6.6.5 - Power: Recalling individual ICANN Directors ** Recall of individual directors selected by SO/AC, Noncom appointment members, and thresholds to be considered. Based in WP1. Recall of individual directors relatively straight forward. More complex is recall of NomCom appointees. No agreement on the level of support needed to remove a director. [66%] [75%] Not to make it unattainable and also not too easy Also positioning thresholds to start the consideration of removing a director Begin with SO/AC directors. Is it WS1 issues? Should there be common requirements for removal of SO/AC removal, or should SO/AC set their own standards. Response: Consider it is a WS1 issue. Agree that recall should not be done by the sending constituency alone. Suggest it will be had to set common rules as the selection process are different. Legal counsel. under CA laws, generally the appointer has the power to remove a director. Approval at the very least. Under designator or member model. Given that there us a public interest element to directors service, it should not be the only the appointing organization that is involved in removal. But also recall that under CA law only the selector could remove. But if this not the case then only a constituency process. Comment: believes this was for a long time WS2. Note that the Board can already remove an Director, so how can the community move the Board to act and remove a director when necessary. Legal advice: under CA law, it will be the appointer, designator or member who removes the director they appointed. Their approval at the very least to do that. This would be the most straightforward way. If a director looses the confidence of the sending group then it is reasonable that the group should be able to remove that director At the very least the removal should be the sending organization. What is the situation under a single member model or a multi member model? Principle: the appointing entity should ultimately be the one to say remove that person. This is for removal without cause Currently appointed by SO/AC, but can be removed without cause by the Board. Need to consider this current reality. Summary: safe mode that the removal process should be decided by the specific SO/AC. Discussion if WS1 or WS2. With these tentative conclusions, in the pubic comment report , but we find more complicated than expected then can reconsider. If we decide WS1 then this is the way forward suggested. Objections? Provisional. electors make the removal. In favor of selector as doing the recall, but need a solution for NomCom appointees at the same time. ** Removal of NomCom appointees More complex from legal and political considerations. Could this be a WS2 item? Suggest not moving to WS2 unless the SO/AC also WS2. Suggest carrying the same approach, that a NomCom Selects, then a NomCom recalls. And that a NomCom recall procedure has been proposed. To ensure a comprehensive approach use the same approach, that a NomCom Selects, then a NomCom recalls. And a NomCom recall procedure proposed. Suggested that this approach might be considered in public comment. [audio lost, WS1 or WS2?] Hard for the current NomCom to also handle a removal process. These processes are essentially not compatible, and operationally difficult. But there could be community measure, preheat with a threshold similar to removal of the entire board or a little lower, to remove. Legal advice has suggested that a pre-service letter signed by directors on appointment saying they would resign under certain conditions: condition such as a super majority of the designator or members or a [community vote] calls for their resignation would be viable. A new removal NomCom would be hard to create, aware based on the IETF model, but IETF very different. Proposal to use the NomCom as is when the problem arises. Should be WS1. Stick to principle the appointee removes: the regular NomCom should be the body to remove. Assume the ICANN Board also have the right to remove a director. And will have new mechanisms to pressure the Board and NomCom to take actions, so may use that pressure to encourage them to remove a NomCom appointed director. NomCom suggestion is similar to IETF NomCom process, but adapted to fit the ICANN model. Suggested 2 different processes because of the two very different purposes of the processes. The removal of 1, when the other process is about finding and selecting a larger group. That the NomCom might feel they have people in their pool who would be better than the person being considered for removal, and that may influence their decision to remove. Sufficient support to include proposals on this issues in the PC report. Hear traction around the new "recall NewCom" proposal would be put forward in the report as a central option, as a proposal under consideration. And outline that other options are being considered and should be explained. And note the consideration of the consistency with the removal of individual directors. 6.6.6 Power: Recalling the entire ICANN Board Extensive discussion in Istanbul. We know the power to recall the entire board is feasible. Consideration of the voting thresholds and parameters for this community power. See the righthand column of community powers document. What's proposed is a legally viable approach. Consideration has been to make a high threshold. This should not be a trivial matter. A petition of 2/3 of the SO/AC (7 in total) and at least 1 SO and 1 AC supporting the petition. Suggesting that it should be a directed vote (para c). Threshold of the total possible total votes available, and not having abstentions reduce this, and not having a single SO/AC from blocking the process. Leading to threshold pointing to 75% rather than the 85% also suggested in the document. Could the SO/AC split their vote? This is a decision to be made once the mechanism is known, some would allow and some do not. Perhaps the same basis as other decisions, and the same should apply for all. An issue that requires clarification. After a board removal there is need to ensure continuity of operations of ICANN. This should be flagged in the report. A suggestion that 3/4 is too low. 4/5 (80%) recommended and ask that both thresholds are put for public comment as an option and seek community input. In favor of not allowing any any individual SO/AC blocking the process by itself, and 4/5 would be acceptable for this, but the voting powers ratio also needs to be considered. Recap: There will be clarification on the ability to split the directed vote, and the different threshold proposals will be in the report. review the board sections. * a set of proposal for WS1, based on each SO/AC being able to remove their own appointees. * proposal of a new NomCom process to remove NomCom appointees, noting in the report the other legally viable options and why they are less favored. * recall of entire board: further investigate the caretaker option as a replacement if a board is removed. Action: Legal group to ensure consistent. Petition levels no objections. And threshold coalescing around the 4/5 80% solution of the vote to remove. But be aware of not setting threshold so high that they make the mechanism unworkable. And noting the already high petition threshold. Suggest revisiting the vote threshold during the 2nd reading, will be easier when we know the voting powers. Reconvene at 19:00 UTC. To address WP2 items. end

1 0

UPDATE - 6.6.1 Mechanism to Empower Community
by Alice Jansen April 23, 2015

April 23, 2015

Dear all, The 6.6.1 text - Mechanism to Empower the Community - has been updated to reflect the agreement reached during session 1 today (see attached: redline and clean versions (.DOC and .PDF)). These documents will be posted on the dedicated draft report wiki page shortly - https://community.icann.org/display/acctcrosscomm/Draft+Report Thanks Best regards Alice

1 0

Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 1 - 23 April
by Alice Jansen April 23, 2015

April 23, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 1 Session 1 - 23 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+1 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Alice ---- IN SUMMARY Section 6.6.1 - Mechanism to empower the community AGREEMENT: Two options : 1) ASO, ccNSO, GNSO 4 votes. ALAC, GAC, RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, At-Large, GAC: 5 votes. SSAC, RSSAC - 2 votes for public comment ACTION ITEM - Argue this proposal in document: notion of equal footing has to be set out. Elaborate on this section in document and capture value of discussion Section 6.6.2 - Power: reconsider/reject budget or strategy / operating plans AGREEMENT: WP1 decision threshold ACTION ITEM: Reopen this item on Friday, 24 April during open slot Section 6.6.3 - Reconsider/reject changes to ICANN bylaws AGREEMENT: First reading complete SESSION CONCLUSIONS We have discussed methods and approach. The group had substantive discussions on composition of community mechanism, budget/strategic plan approval and reconsider/reject changes to fundamental Bylaws. We have discussed pros and cons of giving weights to different groups and observed that Istanbul proposal has most of traction I.E. : 5 votes for ASO, GNSO, ccNSO, ALAC, GAC - 2 seats for SSAC, RSSAC. This is not the definitive discussion. The variation of that will be provided in the report along with background for community to determine whether agree or would suggest alternatives. With respect to community power to reject or veto budget/strategic plan, we need to make sure the community maintains control over both items. We need to be clear what terms we will use. We received confirmation from Council that we are those determining how to use terminology and that it is not necessarily prescribed by statutory law. This discussion will be revisited once we have more clarity on community mechanisms. The group – however – supports voting threshold. With respect to reconsider/reject changes to ICANN Bylaws, the group is in agreement with what is in the draft report. Next steps – we will be updating the report in light of session 1 discussion and will advise where the update can be found. We will recap when we reconvene in session 2. Tomorrow's agenda will be adjusted to capture budget/strategy discussion item. OTHER ACTION ITEMS: ACTION ITEM: Get back to CWG to determine whether comply with expectations ACTION ITEM: Adjust 24 April agenda to include budget/strategic operating plan agenda item ACTION ITEM: Indicate where session 1-related updates to draft report can be found ---- NOTES These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Working Methods Reminder We will not be asking for consensus and chairing for final approval of proposals. We may describe options upon which community may provide input. We are focusing on requirements first and will discuss implementation as time permits. Our goals is to enhance ICANN accountability and to determine whether comply with CWG expectations. The CWG draft proposal is out for public comment - https://www.icann.org/public-comments/cwg-stewardship-draft-proposal-2015-0… ACTION ITEM: Get back to CWG to determine whether comply with expectations Rapporteurs will introduce sessions - staff is capturing edits - as needed. Fundamental Bylaws was missing from the frozen draft. Jordan and Becky have produced a short memo to be circulated shortly. We ask for susbtantive and constructive comments. Mechanism to empower the community Legal counsel was asked to provide a one-page overview of the four models: 1) membership; 2) variation using one single member; 3) designator; 4) as it is and achieve requirements within existing structure. Questions relate to voting powers, composition etc. Representation of voting: 1) equal representation between SOs and two main ACs and lesser power for RSSAC or SSAC; 2) distribution of powers and mechanisms should be same as in ICANN Board: 2 directors for ccNSO, 2 for GNSO, 2 ASO, 1 CEO, 1 ALAC. We should narrow down options to 1 - how do we distribute powers? Clarification in chart: suggested relative voting power, SO = 5, ALAC and GAC = 5, SSAC and RSSAC = 2 Feedback: - Work on equal footing - Important that each component of structure is equal - Second line is inaccurate - there is ALAC, not ACs. "S" on ACs is incorrect. Proposal: 5 SOs and 5 ACs is acceptable - Board voting is unacceptable. - This point should be open to public comment during discussion - Preference for advantage to SOs - they are core organizing groups - prefer 5 to 2 ratio rather than 5 to 1 - We should be asking community - Important that we are talking about voting power not about seats on Board - Not accurate to say we would be able to mirror Board composition (NomCom). Agree with 5 to 2 ratio - We need a model for future to come - agree SOs large ACs - equal footing and smaller 2 ACs having less. - 2:1 is a suitable ratio, no more than double - NomCom seats aren't really part of structure - counting everyone equally is not right move. Designators structure runs into trouble in trying to work to out in different way than Board decision - Support for 4 to 2 ratio proposal - Double voting to give voting to smaller ACs -- RECAP: traction for having different weight for different groups. Distinction between big and small groups. Traction for having 4 to 2 - If compare 4 vs. 5 - it might strengthen geographic diveristy especially for GAC and ALAC. Traction for 5 to 2 in chat. How do we allocate numbers? More support for big 5 (ASO, ccNSO, GNSO, GAC, ALAC) equally with lesser representation for SSAC - RSSAC --- - Suggestion to have 5 to 3 - let's note use big/small analogy - Who objects to equally treat: SOs + ALAC + GAC? - Suggestion to give RSSAC less weight and SSAC on equal footing - Two options : 1) ASO, ccNSO, GNSO 4 votes. ALAC, GAC, RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, At-Large, GAC: 5 votes. SSAC, RSSAC: 2 votes. - Propose that these two options be submitted to community for comment. - Ability of ICANN to make decisions in public interest. Contracted parties get precedence and advisors get pushed into second class position. We need to think hard about what we are saying. Support for WP1 proposal -> In option GAC has 5 votes - RSSAC is small - Need to ensure GAC will accept to have voting members in such a body. RECAP Substantial traction for proposal whereby the ccNSO, GNSO, ALAC, GAC, ASO would get a higher number of seats with lesser representation between SSAC and RSSAC without making a distinction between them. 5 - 2 more traction that 4 - 2 for geographic for diversity. Keep Istanbul proposal as most favored option. - Difficult to highlight pros/cons – concerns. AGREEMENT: Two options : 1) ASO, ccNSO, GNSO 4 votes. ALAC, GAC, RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, At-Large, GAC: 5 votes. SSAC, RSSAC - 2 votes for public comment. ACTION ITEM - Argue this proposal in document: notion of equal footing has to be set out. Elaborate on this section in document and capture value of discussion Power: reconsider/reject budget or strategy / operating plans Need to discuss whether open set of grounds and nuances that need to be in place to set up this power. Currently have process where Board has final approval - community does not have power to reject. We can provide community with power via designators or membership models. Each of these structures has pros and cons. Easier to implement at Bylaw level in membership model but does not mean it is easier in practice. It is important to consider legal advice as it will have an impact on design of mechanism. To discuss: 1) No objective list of criteria; 2) Plan or budget cannot be sent back again with new issues raised. - Suggestion to have community plugged into process as budget is developped - budget approved before it is sent to Board instead or reject - Process of approving could work in members model, but not in designators model. Community decision can only be binding if members. For designators, contracts. - CWG asks that we give power to veto budget and requests full transparency of IANA budget. Important that we make sure we stress whether this proposal fits CWG expectations. If it only a partial fit, provide a specific rationale. - Need to take into account that there might be changes to which there may be new objections - Who is going to judge whether request to reject is within grounds? - Community council will need more votes to reject budget again - setting higher threshold. - There have been improvements in recent years and need to look at these during WS2. If move to member model. Board is deciding power. - Reconsideration is first step of any course of action. Not logical that rejected or vetoed from beginning without giving right to ICANN to reconsider. Veto should be last recourse. 1) approval/disapproval ; 2) reconsideration ; 3) veto - Reconsideration may have timelines that are impracticable for Board. Give Board opportunity to review. Define transparency. - The Board is representing community. Take into account that process to build budget is complicated. Adding layer will mean we are outside timing. Open data can be collected/published. - Will need to discuss who has standing. - Legal counsel needs to describe what is reconsideration, what is approval/disapproval, what is reconsideration/veto. -> these are terms the CCWG defines - parties describe them in contracts/bylaws. - Are we willing to accept as a whole package (recalling Board members etc)? - Difficicult to make decision when unclear mechanism. Suggestion to rediscuss this during open slot on 24 April. There may be room for compromise: strong influence from community - 1) Force veto or require approval (membership) 2) reconsideration process. Suggestion to discuss tomorrow. Need real strong mechanisms that have teeth - not focus on recalling Board. - Support for WP1 threshold - agreement on these would be helpul for public comment. - Weight for membership model. Suggestion to have document identify membership model issues. -- RECAP: Item open for further discussion on 24 April. Call for any objections on WP1 thresholds. ACTION ITEM: Reopen this item on Friday, 24 April during open slot AGREEMENT: on WP1 decision threshold Reconsider/reject changes to ICANN bylaws This power can work in member and designator models. Higher threshold If sending back again. - Bylaw has fundamental provisions and general provisions. We should clarify that not two Bylaws but one Bylaw. AGREEMENT: First reading complete --- SESSION CONCLUSIONS We have discussed methods and approach. The group had substantive discussions on composition of community mechanism, budget/strategic plan approval and reconsider/reject changes to fundamental Bylaws. We have discussed pros and cons of giving weights to different groups and observed that Istanbul proposal has most of traction I.E. : 5 votes for ASO, GNSO, ccNSO, ALAC, GAC - 2 seats for SSAC, RSSAC. This is not the definitive discussion. The variation of that will be provided in the report along with background for community to determine whether agree or would suggest alternatives. With respect to community power to reject or veto budget/strategic plan, we need to make sure the community maintains control over both items. We need to be clear what terms we will use. We received confirmation from Council that we are those determining how to use terminology and that it is not necessarily prescribed by statutory law. This discussion will be revisited once we have more clarity on community mechanisms. The group – however – supports voting threshold. With respect to reconsider/reject changes to ICANN Bylaws, the group is in agreement with what is in the draft report. Next steps – we will be updating the report in light of session 1 discussion and will advise where the update can be found. We will recap when we reconvene in session 2. Tomorrow's agenda will be adjusted to capture budget/strategy discussion item.

2 1

Community Empowerment proposals - A note
by Arun Sukumar April 23, 2015

April 23, 2015

Hello, The Centre for Communication Governance has prepared a brief legal note on some of the community empowerment proposals under consideration, based on our reading of the California statute. Please find it attached to this mail - we've prepared this keeping Indian stakeholders in mind. I'm conscious that the CCWG has moved some steps ahead but hope the memo is accessible for lay readers here! Happy to receive feedback from the working group before we circulate it here in New Delhi and elsewhere. Best, Arun -- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272

1 0

The scope of "policy"
by Izumi Okutani April 23, 2015

April 23, 2015

Dear all, We had taken a look at the frozen document and it's great to see the points which needs community's attention are covered comprehensively including how we handle WS2 issues. We would like to express our appreciations for all the hard work and efforts of those who have been contributing in putting the document together. We noticed there is a part in Section 6.2 of the document which is left for [Insert] related to the number resources policy. While we weren't sure whether the intention is to leave it as it is for the public comment, below is a text suggestion if it helps to have something concrete for people to comment: Current: In this role, with respect to IP addresses and AS numbers, ICANN’s mission is to [INSERT] Suggested text: In this role, with respect to IP addresses and AS numbers policies, ICANN's role is as described in the ASO MoU between ICANN and RIRs. As a separate but related point to the number resources policies, there are several parts in the document applying "policies" and employing "policy development processes", including in the Core values, IRP and reconsideration - We would like to confirm the scope of "policies" used here, as some of its description may not be applicable to the number resource. This is because the bottom up policy development process and its forum for the number resources is outside the ICANN, even though the ICANN Board approves its global policies. We thought we'd share this so that description in the document for public comment would not be putting unintentional implications to policies developed outside ICANN. As a way of keeping the current description and addressing this point, may we suggest to add additional notes in the document for public comments such as "Policies and policy development described in this document is mainly intended for the names related policies developed within the ICANN forum. In case of including the global number resources policy in its scope for policies and its development process described in this document, further considerations should be made of its implications."? Thanks and talk to you all soon at the call. Best Regards, Athina and Izumi

1 0