April 2015 - Accountability-Cross-Community

FW: [WP1] Comments and questions on legal docs
by Samantha Eisner April 15, 2015

April 15, 2015

Dear CCWG members, On a legal sub-team call I committed to identify those questions that seem more ripe for legal inputs as opposed to conversation among the CCWG members or sub-groups. I think that Question 5, 7 and 8 are more questions for the accountability team as opposed to needing legal advice in the first instance. I propose that the attorneys NOT be asked to address these in the first instance to focus their attention on the more legally based questions posed below. Thanks for your consideration. Best, Sam From: Samantha Eisner <samantha.eisner(a)icann.org<mailto:samantha.eisner@icann.org>> Date: Tuesday, April 14, 2015 at 6:58 PM To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>>, "wp1(a)icann.org<mailto:wp1@icann.org>" <wp1(a)icann.org<mailto:wp1@icann.org>> Subject: [WP1] Comments and questions on legal docs I have a group of questions, and share this with WP1 as well as the broader CCWG as well for consideration. Some of them are legal issues, some of them are more accountability related issues for CCWG consideration now that we have some guidance from the lawyers. To help illustrate my concerns, I’ve followed Robin’s Chart format and created two of my own, (though my excel powers clearly are nowhere near hers!). The first chart is based off of the slides that were presented on today’s CCWG call, in particular the membership and the delegate slides. I have removed reference to the TLG as it no longer has a role in appointing Board members and is itself a collection of external groups. I have also included the ALAC, which was not fully referenced on those slides as it is the At-Large Community that is the body that appoints to the Board, not the ALAC, therefore I think we need to look at how the ALAC is considered within this process. Using the same 6 powers that Robin highlighted in her chart, I then took those powers and identified how I understand the powers to be exercised by the different Sos and Acs when relying on a membership or designator model, to get a better sense of where the groups that are formally identified as members or designators could act, which then raises the questions of what happens to those groups that are not identified as members or designators. This seems to me to be a key area where we need to focus – how does the move to a different structure actually impact the multistakeholder actors within ICANN? Some of the key questions that I propose we need to consider are: 1. If there is a move to member organization, what does it really mean in terms of exercising of community powers if some Sos/Acs are members and some aren’t? 2. If there are members/non-members how much of the relationships among the Sos and Acs in exercising community powers would be based in contract? Would non-members need to enter into contracts too, or would their powers just be expressed within the Bylaws or Articles of incorporation? 3. If contracts are required, wouldn’t that also require the formation of some sort of legal entity (unincorporated association or otherwise) to enter into the agreements, even among non-members? Who are the parties to these contracts? 4. Would each of the groups that are members have be subject to California law once they form as an unincorporated association (or other legal entity)? Is this viable across the ICANN community? 5. How is a group such as the At-Large Community to be recognized as an unincorporated association? If the GAC wanted to be a member, is that something that is even possible for it to do? Or the ccNSO, keeping in mind the concerns that Chris Disspain raised on our call? Or any other group? Is this feasible? 6. What are the mechanisms that the members will use to be accountable to each other, particularly when there is no fiduciary duty and the expectation of acting in personal interest? 7. Particularly if there are members/non-members, what accountability mechanisms will be in place to make sure that the members don’t act to the disadvantage of non-members? (Examples: blocking a budget that includes funds for the performance of the IANA functions in service to the protocol parameters community, assuming the IETF is not a member; blocking a board action that is intended to enact a non-member advisory committee’s advice) 8. Where does the NomCom belong? Is it appropriate for a group that changes composition on a yearly basis to be a member? Is it a collective association of all entities that currently appoint delegates to the NomCom? Does that give some members more say that others if there are members/non-members to ICANN (Ex: GNSO appoints multiple delegates through its Sgs and Constituencies – would those groups get to impact both NomCom exercise of membership as well as GNSO exercise of membership?) 9. To what extent does the designator model rely on the formation of associations and contracts to achieve the stated reforms? The second sheet (membership rights) are the enumerated powers of members that were set forth in Sidley’s 12 April memo to the CCWG. Understanding that each of these can be applicable to members, how are they applicable to non-members? There are likely additional questions, but these are some of the hallmark ones that stand out to me if we look at how structural changes could actually be applied to ICANN, and not just look at it from the pure legal view of structures that would empower the anticipated solutions. Once we understand these a bit more, then we can turn to the more fundamental questions of whether the positives and negatives of what can be achieved through the proposed structural changes make those changes the best ways to achieve the reforms. That can include issues of practicality of implementation, time for implementation, the ability for less complex measures to achieve many goals (such as developing robust Bylaws revisions) while identifying that if more major changes such as the systemic move to membership is seen as appropriate after robust community debate, that the Board would be obligated to take that recommendation on (similar to how WS2 will be treated). Thanks for your consideration of these issues. Best, Sam

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Notes-Recordings-Transcript links for LEGAL SubTeam Meeting #11 15 April
by Brenda Brewer April 15, 2015

April 15, 2015

Dear all, The notes, recordings and transcripts for the Accountability LEGAL SubTeam Meeting #11 on 15 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52895738 Action Items ACTION ITEM - Advise law firms we will need one lawyer for each call on 23-24 April and circulate agenda as soon as available. ACTION ITEM: Staff to arrange a legal subteam session in between intensive sessions ACTION ITEM: Set expectations on whether we want lawyers to observe or participate based on agenda. ACTION ITEM: Robin to incorporate Greg's edits on chart ACTION ITEM Questions raised by Samantha Eisner to be relayed to lawyers ACTION ITEM Samantha to take a first pass at filtering/prioritizing questions. ACTION ITEM: Task lawyers to review WP2 templates and advise on what would need to be put in place to achieve goals. . ACTION ITEM - David to raise issue of IRP with lawyers ACTION ITEM - Ask Paul Twomey to elaborate on question/concern. ACTION ITEM - Send intensive session calendar invites to all, including lawyers ACTION ITEM - Circulate revised version of chart asap in time for WP1 call today ACTION ITEM: Circulate WP2 templates and updated chart Notes Accountability LEGAL Meeting #11 on 15 April. Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards Legal Subt Drafts - http://tinyurl.com/kajxlc <http://tinyurl.com/kajxlc4> These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. 1. Discuss scheduling and address Samantha Eisner email Intensive two-days: decision on presence of lawyers will be made on Tuesday based on agenda. Suggestion: 1 lawyer to listen in on meetings to understand what proposals entail and what we are trying to achieve. No downtime - lawyers are needed CONCLUSION 1 lawyer on each call would be desirable ACTION ITEM - Advise law firms we will need one lawyer for each call on 23-24 April and circulate agenda as soon as available. Suggestion to have legal subteam call in between intensive sessions to iron out details and touch base with a note that it may overload agenda. ACTION ITEM: Staff to arrange a legal subteam session in between intensive sessions ACTION ITEM: Set expectations on whether we want lawyers to observe or participate based on agenda. 2. Teased out what are the specific 6 community powers we are trying to achieve - and looked at how would enforce it in models. All 6 powers can be created in both models although more complicated in designator model because we would rely on Bylaws. Contractual mechanism would be needed in membership model. For both models, we would need to create intra ICANN judiciary to resolve disputes that could arise from these powers. Feedback: - Expectation is that with good accountability mechanisms in place, judiciary won't be needed. Litigation based on violation of corporate vs. contractual may be easier - need to look at this. Up to next Friday, we need to focus on ability to get directional proposal. - Concerned that larger group would think that under membership model, we constantly go to court. Dangerous impression to give to anybody. 2 problems/2 solutions to making chart more representative. Approve Bylaws: right to enforce lawsuit is a problem. - 3 columns needed under each: how can right be exercised? and how can right be enforced (recourse etc). Designators have one less option than members regarding judiciary. ACTION ITEM: Robin to incorporate Greg's edits on chart 3. Questions have been compiled: IRP, Board inaction, removal of Board etc ACTION ITEM Questions raised by Samantha Eisner to be relayed to lawyers Suggestion to prioritize and filter questions ACTION ITEM Samantha to take a first pass at filtering/prioritizing questions. We have not received legal guidance on WP2. The legal subteam reviewed IRP, Board inaction, internal Bylaw option related questions. Feedback: - Both membership and designator models threw limitations on IRP. To give teeth to IRP decision, both sides will need to go towards that with a contract for Board members. It can be done for action and inactions. - Could have contract with Board when Board member takes seat, it signs letter of resignation when disagreement with IRP decision. ACTION ITEM: Task lawyers to review WP2 templates and advise on what would need to be put in place to achieve goals. - Power would be in community to enforce decision. There needs to be a way for community to disagree with parts of the IRP decision - middleground necessary. `ACTION ITEM - David to raise issue of IRP with lawyers ACTION ITEM - Ask Paul Twomey to elaborate on question/concern. Which would be mechanisms that would trigger action from community to have Board act on something that has not been addressed is a valid question. Answer would depend on final structure we would be proposing. - Suggestion to highlight there is a path on Board inaction ST-WP frustration about absence of input on WP2 and use of Board removal as tool. - Request guidance on whether there are problems for CCWG identified options. - - - - - Counsel joining 4. Expectation to have 1 lawyer on each calls and might ask to have more members present on certain calls (in light of agenda). ACTION ITEM - Send intensive session calendar invites to all, including lawyers Lawyers present on CCWG-Acct calls, legal subteam calls and, upon request, on WP calls. Columns will be added to chart. Updated version will be sent. - Time needed - heavy lifting on judicial side. - Helpful to know whether private arbitral enforcement or judicial. ACTION ITEM - Circulate revised version of chart asap in time for WP1 call today - Need to look what type of escalation path can be taken before ultimate judicial can be enforced. This also ties to WP2s. Ask to look at existing mechanisms instead of new arbitral mechanisms 5 IRP panel could result on binding and scope could be expanded. Trigger mechanism to bring things to Board. WP2 focusing on reconsideration, ombudsman and mission + core values. Request for reconsideration - Robin walked through template. Reconsideration process is in Bylaws - edits in doc are Bylaws changes so important to have check by lawyers. Prioritizing needed CONCLUSION #1 Priority assigned to chart (Friday) #2 WP2 (Tuesday) #3 Rest of assigned questions Clear confirmation on whether IRP can be binding. ACTION ITEM: Circulate WP2 templates and updated chart

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Another Twist to Law, Jurisdiction and Accountability
by Paul Rosenzweig April 15, 2015

April 15, 2015

All As you may know, ICANN recently created the new gTLD .sucks. It appears that the new registry manager, Vox Populi, is charging a rather exorbitant fee of $2500/year for existing trademarks to purchase the relevant domain name in the pre-release Sunrise period. Some have protested to ICANN about this. ICANN's response is interesting and may have relevance to our accountability discussion. It seems (http://www.washingtonpost.com/blogs/the-switch/wp/2015/04/09/the-group-that -created-sucks-now-wants-government-to-keep-it-from-spinning-out-of-control/ ) that ICANN has asked the regulatory authorities in the US and Canada to determine whether or not Vox Populi's pricing is predatory under US and Canadian law (and thus illegal). I am not at all clear whether ICANN has directed this request to those national authorities because it is where they are located or, more likely, because they are the law specified by the underlying contracts. But it does suggest that, in the absence of regulatory authority for ICANN (which I assume we all will continue to wish for) national laws will continue to play a role. I am not in the least bit sure how this plays into our discussions - but it certainly seems a relevant confounding factor we ought to be aware of Paul Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_me dium=email&utm_campaign=signature-us2015>

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CWG Meeting Notes related to expectations from CCWG
by Mathieu Weill April 15, 2015

April 15, 2015

Dear Colleagues, I am pasting below the notes of CWG Meeting #40 which addressed the topics of expectations towards our group. This is of course very relevant to our work, in terms of drafting our recommendations as well as the consideration of our workplan and timeline. Best, Mathieu -------- Message transféré -------- Sujet : [CWG-Stewardship] Notes Meeting #40 at 14:00 UTC Date : Tue, 14 Apr 2015 21:51:43 +0000 De : Grace Abuhamad <grace.abuhamad(a)icann.org> Pour : cwg-stewardship(a)icann.org <cwg-stewardship(a)icann.org> 4. Instructions for CCWG? • ICANN budget (in particular, the requirement for transparency around cost allocation in relation to the IANA functions) Response: The CWG supports the idea of budget veto tool, and the CWG expects the CCWG to deliver on this ability for the community to veto the budget. Furthermore, with regards to the details to be provided in relation to the IANA budget, the CWG is expected to recommend as part of its transition plan that: 1. The IANA Function’s comprehensive costs should be transparent for any future state of the IANA Function. 2. Future FY ICANN Operating Plans & Budgets, and if possible even the FY16 ICANN Operating Plan & Budget, include at a minimum itemization of all IANA operations costs in the FY ICANN Operating Plan & Budget to the project level and below as needed. • Community empowerment mechanisms (in particular, relating to a confidence vote option) – Response: As part of the structure that the CWG is currently considering (Internal accountability hybrid model: legal separation variant), the CWG will be relying on the community empowerment and accountability mechanisms that the CCWG is considering such as the ability to review of ICANN Board decisions on the IANA periodic review performance (PRF); approve or reject board decisions on PRF as well as the related creation of a stakeholder community / member group to trigger these kinds of abilities. As such the CWG wants to emphasize again the interlinkage and interdependence between the two groups and the need to continue close co-operation and regular information sharing. • Review and redress mechanisms (in particular, relating to a 'fundamental bylaw' mechanism) Response: The CWG is expected to recommend that a periodic review of the IANA functions is scheduled to take place no later than every 5 years and would operate in a manner analogous to an AOC review. As the CWG understands that the CCWG is working on incorporating other periodic reviews as mandated by the AoC, the CWG would like to know whether an IANA Periodic Review could be incorporated as part of those efforts. Further details on the mechanics of such a review are available and can be shared should the CCWG confirm that this is indeed something that can be incorporated as part of the CCWG’s efforts. • Appeal mechanisms (especially with regard to ccTLD related issues) Response: The CWG recommends that the CCWG should be mindful of the recommendations of the CWG in relation to an appeals mechanism for ccTLDs and the survey results that led to this recommendation which notes that ccTLDs may decide to develop their own appeals mechanism regarding re/delegation at a later date (post-transition). As such, any appeal mechanism developed by the CCWG should not cover ccTLD delegation / re-delegation issues as these are expected to be developed by the ccTLD community through the appropriate processes. However, the CWG does want to emphasize the importance and need for an appeal mechanism to cover any other issues that may involve IANA and notes that this is option is expected to be specifically called out as one of the possible escalation mechanisms in the draft transition proposal.

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Fwd: Work update and Proposed Agenda: WP1 call #10 - Wed 15 April @ 21h-23h UTC
by Jordan Carter April 15, 2015

April 15, 2015

fyi people. J ---------- Forwarded message ---------- From: Jordan Carter <jordan(a)internetnz.net.nz> Date: 15 April 2015 at 20:17 Subject: Work update and Proposed Agenda: WP1 call #10 - Wed 15 April @ 21h-23h UTC To: "wp1(a)icann.org" <wp1(a)icann.org> Hi all (WP1, copied to CCWG) Our next WP1 meeting is at 21h00-23h00 on Wednesday 15 April, around 13hrs from now. Following the CCWG meeting held around nineteen hours ago, it's clear that there are more questions to ask of legal advisors, and much debate still to be had about the mechanism for our community powers. We *aren't* going to be able to *solve* the *mechanism* question in time for our Public Comment Report content deadline this Friday, *so I propose we don't try to do so - doing so will derail the rest of our work*. [The question of what mechanism will be picked up by the full CCWG in its meeting on Tuesday next week and in the intensive work next Friday and Saturday.] Our focus should be on getting the rest of the material we are working on done, which requires us on Wed 15th and Thu 16th to: - raise any further questions on the *powers *with our lawyers, who will be on the first part of Wednesday's call - seeing if we can in discussion tease out any more elements of the *mechanism*, so as to help Counsel with prep for the discussion at the CCWG next week - discuss the *remaining new Public Comment Report content* we ran out of time to discuss at meeting #9 (the "6.X section of our comment doc) - I had hoped CCWG would discuss this - get consensus, or establish specific lack of consensus (and hopefully options), on the material in our comment document. To achieve these relatively limited and achievable goals by Friday, here is the agenda I propose, with Counsel present for items 2 & 3: *CCWG-ACCT Working Party 1 (Community Empowerment)* *Agenda for Meeting #10, 15 April @ 21-23h UTC* 1. *Review of Agenda Q&A section - to ask questions of counsel to help inform them, and to get some brief answers where possible - ongoing part of the dialogue to support CCWG's next meeting be as useful as possible * 2. *Q&A with Counsel on the "Mechanism" debate* This is to follow up the CCWG meeting on 14 Apr and add any WP1 *perspectives *for Counsel to *consider *as they prep for next week's work (20 mins max ) (slides from the CCWG meeting, which might be useful, are at https://community.icann.org/pages/viewpage.action?pageId=52890082) 3. *Q&A with Counsel on our Powers* Any remaining questions that didn't get dealt with last meeting (WP1 Mtg #9) in response to the advice from Counsel on our powers (20 mins max) (the memo with the advice in blue boxes under each template is at https://community.icann.org/download/attachments/52890082/Combined%20CCWG%2… ) *Substantive work section - this is where you really need to have read the material, which I remind you most of you will have seen before... for us in WP1 to be moving towards consensus * 4. *Public Comment Document content *A third iteration of the Public Comment Document content will be circulated by me as soon as it is ready - next hour or two. The document will be clean, like last time, but I will also track changes compared with the v2 document (as was done last time). 5. *Agenda for Next Call* -- 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 * -- 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] [Acct-Legal] community powers comparison: designator & membership model - what powers can we create and how to enforce them?
by León Felipe Sánchez Ambía April 15, 2015

April 15, 2015

Dear Holly and Rosemary, Please do review Robin’s table. I apologize for the delay on assignment and don’t expect you to have elaborated for our call tomorrow but rather give an initial review so we can further discuss in our call tomorrow. Best regards, León > El 14/04/2015, a las 16:42, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> escribió: > > Happy to review with direction from Legal Subteam. Please provide direction ASAP. Holly > > > > Sent with Good (www.good.com) > > > From: ccwg-accountability5-bounces(a)icann.org on behalf of List for the work of CCWG-Accountability Legal SubTeam > Sent: Tuesday, April 14, 2015 03:45:49 PM > To: ccwg-accountability5(a)icann.org > Cc: Accountability Cross Community > Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them? > > Fantastic work Robin and much appreciated! > > I echo Greg's comments concerning the role of litigation in both models. I do like the format and I think it would be a great idea to have it reviewed and improved upon, if necessary, by counsel, for distribution to the general list. > > Best, > > Ed > > > On Tue, Apr 14, 2015 at 8:19 PM, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org <mailto:ccwg-accountability5@icann.org>> wrote: > Robin, > > Thank you for this. A great deal of effort clearly went into this and this should develop into a very useful tool. However, I think we will need to have this reviewed by legal counsel before we rely on it. Having reviewed this briefly, I am uncertain that at this stage this document accurately captures the legal advice, particularly with regard to how the rights can be enforced. > > Specifically, this seems to give the impression that, if the membership model were chosen, the members would be limited to running off to court in most cases should rights need to be enforced. I'm fairly confident that is not the case. I believe that the remedies listed for the designator model, particularly changes to the bylaws and the IRP, are equally available in the member model. With regard to litigation, I think the distinction is that the designators have no ability to litigate on behalf of the corporation, while this is one possibility (but far from the only one) available to members. In other words, such litigation is an extra power, not the only power, available to members. > > The Legal Sub Team (copied here) should discuss how to proceed. > > Thank you again for taking the laboring oar in pulling this together! > > Best regards, > > Greg > > On Tue, Apr 14, 2015 at 2:35 PM, Robin Gross <robin(a)ipjustice.org <mailto:robin@ipjustice.org>> wrote: > Hello Team, > > What we need to do is take a hard look at both the membership model and the designator model and understand what rights can be created and how will they be enforced. Once we understand what we *can* do, we need to look at the pros/cons of the different models and evaluate accordingly. > > But first, we need to understand what *can* be done so we can discuss *if* we ought to do it and what is the best means. > > So I've taken a first pass of each of the 6 community empowerment goals and created a comparison table to lay-out what rights can be created and how they can be enforced. I've combed through all the 200+ pages of legal memos, today's CCWG call, and calls of the legal sub-team to compile this info into one table so the models can begin to be evaluated side-by-side. > > The doc is attached and also here is a link to the table comparing the 2 models: > https://docs.google.com/spreadsheets/d/1kkkRBpMUkTpD5_RP_Ogo1PTGzGt2kC6f1xo… <https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spread…> > > I am hopeful it can begin to help us to wrap our minds around what our goals are and how they could be accomplished by the two models at play. > > Thanks, > Robin > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> > > > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org <mailto:Ccwg-accountability5@icann.org> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> > > > > > **************************************************************************************************** > 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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A Blog about a CCWG Participant!
by Grace Abuhamad April 14, 2015

April 14, 2015

Original link: https://www.icann.org/news/blog/accepting-the-icann-challenge Accepting the ICANN Challenge <https://www.icann.org/news/blog/accepting-the-icann-challenge#> <https://www.icann.org/news/blog/accepting-the-icann-challenge#> <https://www.icann.org/news/blog/accepting-the-icann-challenge#> <https://www.icann.org/news/blog/accepting-the-icann-challenge#> <https://www.icann.org/news/blog/accepting-the-icann-challenge#> <https://www.icann.org/news/blog/accepting-the-icann-challenge#> For newcomers, their introduction to ICANN can be overwhelming. Our structures and processes can appear incomprehensible; our website information difficult to decipher; our annual meetings a maze of complex issues; our community constituencies might look impenetrable. Many have taken advantage of ICANN's Newcomer and Fellowship programs to ease their entry into this unique world. And if you are a first timer, uncertain whether you can handle the challenge, understand that all of us were new to ICANN at some point. But Arun Sukumar has taken that challenge a step further. Arun is a lawyer and a senior fellow at the Centre for Communications Governance at the National Law University in Dehli, India. He had never been to an ICANN meeting until ICANN 52 in Singapore in February. He described his experience as "a voice in the wilderness". "Personally, I have found that it takes a whole lot of warming up to", Arun said. But he wasn't discouraged. I met Arun in Istanbul in March, at the two-day meeting of the Cross Community Working Group tasked with developing proposals to enhance ICANN's Accountability - a necessary process running parallel to the IANA Stewardship Transition work. When the processes began and ICANN encouraged broad participation from beyond the traditional ICANN communities, Arun accepted that challenge as well and joined the CCWG Accountability as one of 135 participants. The Istanbul meeting was the first time he had met face to face with the other members and participants of the CCWG. During one of the work breaks, Arun agreed to sit down and talk with me on camera. He explained that the National Law University in Dehli supports his travel for participation in ICANN. His job is to report back to those stakeholders in India who can't afford to attend ICANN meetings, to make them broadly aware of what ICANN is all about. Arun said there is great interest in India in the role ICANN plays in Internet governance, and particularly in the IANA stewardship transition and ICANN accountability processes. Before attending the meeting in Istanbul, Arun participated in the CCWG discussions online. He raised questions about the role of the independent advisors in the CCWG, about ICANN's Mission Statement and Core Values. But Arun admitted, his entry into ICANN hasn't been easy. "To be frank, it has been an uphill task to be part of the institutional culture of ICANN, to be an active participant in ICANN discussions, because I have found that there are some concerns about diversity that ICANN has to address immediately, especially around the context of the IANA transition". But Arun also said he had established a rapport with several CCWG members and participants online and that during the face to face meeting in Istanbul he found it easy to communicate ideas with the group "even though they may not be entirely acceptable to people sitting across the table". <https://www.icann.org/sites/default/files/assets/sukumar-2-750x424-13apr15 -en.jpg> When the Istanbul meeting ended on that second day and most members and participants had left the room, I noticed Arun had not. He was standing with two others from the group, listening for the most part, as they offered suggestions on community constituencies that might interest him and how he could further ease his entry into ICANN, reminding him that they too once were newcomers. The full video interview with Arun Sukumar can be found here <https://www.youtube.com/watch?v=hhmtNi4M6tc> .

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Notes-Recordings-Transcript links for CCWG ACCT Session #22 14 April
by Brenda Brewer April 14, 2015

April 14, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #22 call on 14 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52895728 These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Notes 1. Please remember to complete your SoI - reach out to staff if any assistance is needed. <https://community.icann.org/pages/viewpage.action?pageId=50823968> https://community.icann.org/pages/viewpage.action?pageId=50823968 2. We will focus on easiest to explain, understand and implement Have analyzed mechanisms and powers - California law has powerful tools 9 Under CA law and under contract law there are powerful tools to achieve the mechanisms the CCWG is seeking. Clearest path is to org an membership body made up of the same groups as currently elect directors. Under a designator model, also ached much of this. But membership also gives powers to review and approve certain board decisions. Under corporate law the community has rights and these are based around the concept of a corporate purpose. The purpose is tested in the articles and further defined in the bylaws. And the community will have the power to hold the Broad to that corporate purpose. Including the word to remove the board. Power to amend bylaws. Also the approval and rejection right is also powerful (what CCWG has been calling veto rights), and these are the powers that membership gives over the designator approach We believe ICANN as a member org is the path to the powers the CCWG seeks. The duty of care to the organization. Directors should apply their own judgment to what is best for the organization. They are also required to bring with them knowledge of the community that elected them. Member structure: The SO/AC who elect director would become members. The directors retain fiduciary responsibilities, but the community has powers to greater direct the board. Members: primary role to select and remove the board. Classify the membership. Each class would choose internally who it wants to put on the Board, these rights are heavily protected. There are some downsides in that the protect members have a right to sue and can be disruptive. Suggest in this case that the members be a incorporated entity. Take the SO and AC and form as an unincorporated association. And this is a low standard give the already exciting organization of the SO/AC. The current internal body would become and separate legal entity. The stature allows for reserve powers, and the powers CCWG seeking can largely be delivered, so long as the Board's powers overly reduced. Question about the NomCom role. Could be a member, or be eliminated and have its work given to other new One class of members to vote on another class of members' directed. This could be worked around through contracts which would allow the classes of members to work together. Members can unilaterally amend bylaws. The Board can also amend bylaws, or the right take-away. Members can veto changes. Can require actions to be approved. Members have the right to sue, if assets were not used for the purpose for which the corporation is organized (the corporate purpose) Member advantage: key is to amend the bylaws, to approve or veto board actions and the standing to sue. However designators still viable. Notion of a two-tier board structure. It is not the same as the European supervisory board. A larger community board and executive board. The community board has oversight over the executive and designates authority to the executive board. The large community board has power to interfere and overrule the executive board. Need to change the bylaws to classify voting rights. Procedure to allow the community to amend the bylaws and adding the community provisions such as reserve powers and independent review process. Outside the bylaws provisions need to provisions to allow removal rights. Believe can be done without radically changing the familiar structures of SO/AC Desired powers. Based on WP1. Which work for members and which for designators. Both can remove individual directors. Both can approve or change the bylaws and protect fundamental bylaws. To block board actions that conflict with the bylaws and mission: members can do this, much harder for the designators. The powers reserved to the community under a member organized ICANN are stronger than under designator organized Block strategic plan or budget, members have the powers, for designators unlikely or problematic Principles of contract law. Community veto power of certain board decisions. To the extent that it applies to specific board decisions, the member approach will have more influence. Rights can be reserved for members, but not for designators. Q. creating legal entities of the SO/AC can this open them up for legal action. If the GNSO makes policy recommendations, could it later be sued for those recommendations. Concern when he ccNSO was created that joining a member organization would reduce the ccTLD managers individual rights. Can we get what we want, without all the restructure. Can the powers be given through the powers in the bylaws? A. The trade off between the member and designator structure is how much power. Can have all of the power, except the veto power over certain board decisions under the designator structure. Are they needed if you have other strong powers, such as removing the board or control over bylaws. Concept of legal viability. In the ICANN bylaws provides that groups has the right to name people to the board. What is legally viable, the lawyer answer may be to provide a mechanism to force the board to do what you want it to do. Many of the things wanted can be put in the bylaws, but if the board ignored it, then the question is there any way to change that. Q. 1. is it feasible to have an independent standing panel that would be bind to the board, i.e. the independent review panel 2. can we call the board to action when they are not taking action A. under the member model, a lot of flexibility in how to give veto and approval rights. Need greater level of research to know. A. the concept f being able to force the board to do something, under both there is an option to remove an individual or entire board. But to force the board to do something, that's where the members structure is much stronger. Forcing the board to do things, by amending the bylaws, or by the members taking on an action and doing it are possible. Yes, the NomCom can be constituted as a member, and perform its current functions. The only way for one class members to remove the directors appointed by another class of member would be through some contractual relationship and removal of the entire board. SO/AC are created by the ICANN bylaws, and the bylaws controls what they can and cannot do. Is this retained as separate bodies? Current vision for this, the unincorporated association. Brief articles of association, would cross reference out of the articles to refer to existing ICANN documents, no need for governing documents as they already exist. So the SO.AC retain their current persona. The designator model can be made to work. But the clarity around roles, is simpler under the member model. Designator path is considered more complicated. How does a govt representative fit into this structure. Govt currently has the GAC and the selects non-voting observer to the board. Can a govt representative be considered as a member? They way seen under the member or designator structure, did not see the GAC having a voting members. NomCom would continue to function and to provide some diversity etc to the board. Spring board action in cases of inaction. A mechanism to cause the board to take action. There coercive power exists in the selection and removal of directors. Can formalize the process to call for a meeting of community representatives and the board to express concerns. Forcing the board to act is hard because they are fiduciary and they have to have the right to take decisions. Which can be done under the current arrangements? Slide 20. Currently, it closely represents a designator model. Desired powers: SO/AC if considered designators will have approval rights over certain articles or bylaws, and can recall the whole board, cannot block board action such as the adoption of budget or strategic plan. 1. Note: TLG no longer appoints to ICANN board 2. Nuance. Bylaws can be put in place that allows the community, using whatever mechanisms it wishes, to veto the budget, strategic plan, etc. The Board could ignore that veto and if they did, the next power could be to remove the board. 3. Problems with membership based organization and current structure of the NomCom and particularly GAC advice and how it is treated under the bylaws. Need to also address WP2 issues, and reviewing the IRP and how this can fit in the recommendations will be the subject of legal sub-team call (Wednesday, 15 April. 15:00-17:00 UTC) Yes we can have all the options, but some trade-off for a solution that might be easier to implement. The requirements were not unrealistic. 3. CCWG Workplan and timeline Not wishing to lose momentum, but recognizing the concerns about the high workload and heavy document load. The report, the first administrative parts of the report document is largely complete. See solid progress from WP1 and WP2. And feel the group has achieved a great deal. To pull the parts together to a cohesive document Eberhard Lisse: disagree with the approach being taken, we need more time to discuss. Short term work time. Our charter in the context of the transition, and deliver in a time frame consistent with the CWG as we are supporting some of their proposals. We expect it hear more from CWG on their requirements after their 2 day intense work session of Monday/Tuesday this week. And we need our proposal to be available for ICANN #53 and consideration by the SO/AC, Our Istanbul target was for public comment launch on April 21. We want members to be able to comment on the proposals. We need assurance on legal feasibility, and we have good progress and issues for legal group to investigate Way forward. 1. focus, and suggestions on list we might do that on the CWG needs, as they respond after their intense work days. Adjust our approach: 3 step approach: 1. this week focus on WP so they complete proposals by the end of the week. 2. To turn around a 20-25 page draft report over the weekend and 3 day freeze Monday-Wednesday so the group can consider. 3. a 2 day intense work period based on the CWG model, Thursday/ Friday next week Revised call schedule. Cancel the CCWG calls of Thursday Apr 16, Friday Apr 17 (set Friday as target for the draft report to be circulated) and cancel the additional meetings of Monday Apr 20 and Tuesday 21st. Keep the regular Tuesday Apr 21 CCWG 19:00 UTC. Consider CWG comments and follow-up on legal advice). Intensive April 23/24 work period as inspired by the CWG process of meetings. And finalize the proposals - we are extending the time line. Cover the CWG requirements as a priority. No face-to-face May meeting, but June 19 in Buenos Aires. Request the spread the meeting times for the intense meetings across the timezones (Agreed, will be amended) Outcome of WP1. Aware WP1 may present options, and public comment can be used to provide feedback on issues. Legal advice affecting WP2 recommendations. Agreement to cancel the schedule and introduce the new meeting times (revised for timezones) Discussion of stress test 18 to next meeting. Summary report, and plan for intense work days next week. END

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Slides - Short term WorkPlan
by Alice Jansen April 14, 2015

April 14, 2015

Dear all, Please find attached the short term work plan slides that are currently being discussed. Best regards Alice

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CCWG call today (April 14) slides and AC room recording
by Adam Peake April 14, 2015

April 14, 2015

Hi everyone The slides presented by the legal advisors on the CCWG call earlier are on the wiki: https://community.icann.org/pages/viewpage.action?pageId=52890082 Please see bottom of the page, ICANN CCWG - Presentation Slides.pdf (presentation delivered on call #22 - 14 April 2015) The Adobe Connect room recording is available so you can review the call, please see the meeting page: https://community.icann.org/pages/viewpage.action?pageId=52895728 Transcript and MP3 recording should be available within 24 hours. Thanks, Adam

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