April 2015 - Accountability-Cross-Community

Reconsideration Request question
by Jacob Malthouse April 9, 2015

April 9, 2015

Dear all, If the IRP is going to be greatly improved by a standing panel, streamlined process, lower cost, and greater accessibility, are there implications for other accountability processes? Is it worth considering whether the ICANN community would benefit from removing the reconsideration request process altogether? The reconsideration request process basically asks the same people who made a decision to take another look at it. That doesn't really strike me as an actual accountability mechanism, but rather more like a second kick at the can. Person: "Officer, I'm sorry I didn't see the school zone. Can you give me a pass?" Officer: "No." Person (reconsideration request): "Please?" Officer: "No." Basically, I am struggling to assess the benefit in the context of the new accountability regime that is developing. All too often groups like this just layer on processes. Perhaps we have a chance to eliminate some red-tape here for the benefit of all. Best, Jacob.

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Reference for legal subteam
by Izumi Okutani April 8, 2015

April 8, 2015

FYI, ARIN has had an opportunity to take a looks at ICANN's Bylaws with legal feedback from its lawyers, which may be of an interest for legal subteam. This is just sharing it for your reference, simply some legal research work that ARIN sought & which may be useful for the CCWG's groups reference and not a recommendation. Thanks, Izumi

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Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
by Brenda Brewer April 8, 2015

April 8, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #18 call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477 Action Items * ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join * ACTION ITEM: Raise with legal advisors (through legal sub team): * ACTION ITEM: Cochairs to specifically review notes on jurisdiction. * ACTION ITEM: Review new version of mission statement later this week. * ACTION ITEM: WP2 to refine the proposals for reconsideration * ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders * ACTION ITEM - CCWG to liaise with ICG Chairs * ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). * ACTION ITEM Follow up on GAO matter on mailing list. Notes These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript 1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed. Legal Subteam Methods & Updates León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents. Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list. Feedback: - All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model --> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights. - When posting concerns on main mailing-list, include header. CONCLUSION: Working Methods are adopted - this issue is closed. Adler & Colvin - Preliminary responses to 10 questions Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators. * * Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary); * Self-perpetuating Board may not be something you will use; * Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure; * Neither members nor designators have fiduciary duty unlike directors; * California law principles designates Board as ultimate authority; * If members or designators are unhappy with Board performance, they can remove particular director or Board; * Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group. - This document will be reviewed in detail on Wednesday, 1 April during legal subteam call. - Q2 Responsibilities and liabilities (fiduciary). - Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc. - Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent. - Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest? - Q6 Board bound to accept IRP decisions e.g. contract or super board structure. - Q7 Attorney General: unlikely unless assets are misused. - Q8 How incorporate of AoC into bylaws. - Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider. - Q10 Suggested steps to manage litigations risks. ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join Sidley & Austin - There seems to be overlap between questions asked to A&C and S&A. - CCWG has a lot of tools to accomplish what it needs how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met. - A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed. - Antitrust: it is an issue you have to be mindful of but no significant concerns. WP2 Fundamental Bylaws CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board. Jurisdiction - Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement. - Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2. Feedback: - A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work. --> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this. - Is there something that we have identified that cannot be accomplished according to California law? - This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating --> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up. --> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues. --> Input from Pedro (Brazil), Arun --> Jurisdiction is #1 question within French Business constituency and civil society. - Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled. --> Let's focus on facts and requirements instead of second-guessing political implications. --> Sovereignty concerns from governments when dealing with national courts --> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed. - It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2. ACTION ITEM: Raise with legal advisors (through legal sub team): * What extra accountability would be brought to community if AoC article 8 was incorporated; * Balance of jurisdiction need to further explored. ACTION ITEM: Co-chairs to specifically review notes on jurisdiction. WP1 Community Mechanism - WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG. - CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made. AoC reviews - Migrating 4 reviews into Bylaws with suggested improvements. - Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance). - CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary WP2 mission & Core Values - A revised document was circulated to reflect input from Istanbul (substance and format). - We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input. ACTION ITEM: Review new version of mission statement later this week. WP2 Independent Review No further discussion on this item. CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice. W2 Reconsideration Process - Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction. - Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc); - Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process. - Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases. - Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision. - Implementation: Follow-up process regarding implementation of the decision. - Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened. Feedback: What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects? --> In order to get IRP, reconsideration request would need to be filed. We should spell this out, --> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed. - Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard? --> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation. - Potential paradox between extending timeline for filing and timely issuance of decisions. ACTION ITEM: WP2 to refine the proposals for reconsideration - Call for agreement on whether this is WS1 CONCLUSION: Reconsideration process is WS1. ST-WP - Informal meeting held in Istanbul to discuss #21 (delegation/redelegation). - Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week. ACTION ITEM: Staff to circulate ST-WP call invites. - Edits added to # 21, added new stress. - Veto (supermajority) is distinct from IRP and reconsideration. - CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals. Timeline - Target date for finalizing recommendations is April 20. - Need to provision for 2 public comment periods. - ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss. - Berry Cobb walked the group through timeline update - <https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline… modificationDate=1427802208876&api=v2> https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline… odificationDate=1427802208876&api=v2 Feedback: - Public comments before SO/AC endorsements. - Public comments could not amend outcome unless go back to SO/ACs. - What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be? -> Objective is to get input from SO/ACs at each public comment phase. -> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change. - Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal? - Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires. - Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc. ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders - CoChairs will touch on expected timeline when coordinate with CWG Cochairs. - Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting) ACTION ITEM - CCWG to liaise with ICG Chairs Engagement ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). AOB ACTION ITEM Follow up on GAO matter on mailing list.

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Notes, Recordings, Transcript LEGAL SubTeam Meeting #10 8 April
by Brenda Brewer April 8, 2015

April 8, 2015

Dear all, The notes, recordings and transcripts for the Accountability LEGAL SubTeam Meeting #10 on 8 April are available here: https://community.icann.org/pages/viewpage.action?pageId=52895432 Action Items Action: email co-chairs and rapporteurs to ask when they need lawyers on their calls. and any feedback, and to identify documents that might be needed for those calls Action: pass the ARIN legal memo to the lawyers ask for their consideration. Action: forward questions asked in response to the lawyer's questions to the respective firms. And forward other relevant WS1 questions to both firms. Action: To provide legal counsel with ToC for the public comment document , and tracking document of the progress of WP1, WP2 and the stress test WP. Action: Staff/legal sub-team will give notice to counsel of when Stress Test WP needed. * legal sub-group will send formal memorandum to initiate work on items received from CCWG * legal sub-group will contact co-chair and rapporteurs, identify which calls should lawyers join, with any supporting documents * send stress test request for legal advice. Request, relative priority of questions: Yes, will provide prioritization. Will send calendar invites to all lawyers, with links to relevant groups pages and meeting information To co-chairs to ask for time on the agenda for next CCWG call April 14 12:00-14:00 UTC - CCWG, or an exceptional call, to allow outside legal counsel to level set., offer a presentation on the mechanisms being considered. Legal presentation, 50-60 minutes required. Action: contact co-chairs about legal counsel presentation at the next CCWG meeting, or an exceptional meeting? 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. 1. Welcome & Roll call 2. Timeline and Methodology (15 minutes) Preliminary report on April 21. Less than 2 weeks for document to be produced. How can Counsel and the legal sub-team support the groups. How to best inform the lawyers of calls. With an eye to cost effective. Friday 17, following the CCWG schedule of 14, 16 and early 17 April. What other calls should legal be on? WP1 later today (April 8), Adler unable to join be Sidley will cover the call and do document review. 48 hours notice would be good, scoping the next 2 days ideal Coordinate with the co-chairs and rapporteurs. Suggest legal call on Apr 20 in addition to the 17th. And check with the co-chairs where outside legal advice might be needed on their schedule of calls. Action: email co-chairs and rapporteurs to ask when they need lawyers on their calls. and any feedback, and to identify documents that might be needed for those calls Stress Test team will becoming for legal advice on issues they have identified. One person from the legal sub-team should join the calls where lawyers have been requested. Members will provide coverage. 3. Review of Issues Arising from Written Advice Issues arising from the documents and what's being discussed in the WP teams Amend the second hour agenda to inc issues they see in the mechanisms - addition to the agenda. Takeaways from the advice: models that are looking good, those that might be relegated. Issues that need to be focused on, a triage. Also look at the ARIN legal notes, particularly on designators. Also ask the lawyers to react to the memo. The memo is from ARIN not the ASO. However ASO representatives discussed the proposal as it was developed, but the document put forward by ARIN for the community's reference for work in WS1 Focus legal efforts of the next 10-12 days on WS1 issues. Action: pass the ARIN legal memo to the lawyers ask for their consideration. Binding nature of IRP may be an issue to focus in on. 4. Review of Issues Raised by CCWG Participants Pedro da Silva and Eberhard Lisse. Need to address issues that deal with WS1. Dr. Lisse's questions not directly WS1. A centralize list of questions, and non-WS1 can be addressed after the public comment period. Other questions directly address the Sidley and Adler documents, suggest asking the lawyers to respond directly to the questions posed. Da Silva, about California law, asking for a direct response would be reasonable. (Action: forward questions asked in response to the lawyer's questions to the respective firms. And forward other relevant WS1 questions to both firms.) A Wiki page will be created listing questions, with action taken provided, i.e. forwarded to counsel or if not with the reasons why not. Outside counsel join the call. Want legal advice on calls when needed, but with adequate time to prepare. Proposing a 48-hour rule, unless some emergency matter. How to best use legal advice, will coordinate with the co-chairs and rapporteurs. 48 hours if a new legal issues is short notice, but for previously seen information should be adequate. Noting that lawyers on the team have different skills and not entirely interchangeable, but the benches are strong. April 21 work product will be the CCWG's proposals. Based on the matrix sent to the legal teams. Recommendations on work stream 1 accountability mechanisms. Action: To provide legal counsel with ToC for the public comment document , and tracking document of the progress of WP1, WP2 and the stress test WP. Task to ask co-chairs and rapporteurs when the expect legal counsel to be needed. Questions from Stress Test WP will submitted to legal counsel. The WP meets weekly, Wednesday at 11:00UTC. Action: Staff/legal sub-team will give notice to counsel of when Stress Test WP needed. WP1 questions will be discussed on the group's call later today (21:00- 23:00 UTC) Sidley will address at a high level on the WP1 call. How powers are given to the community are important, but would be helpful to know the priorities for this powers, and the primary powers and mechanisms needed. Helpful to understand if some powers are alternatives, or are all powers are wanted? Counsel: If the CCWG comes with a set of specific requirements (to remove the board, to remove individual directors etc), then can give advice Response: And this is where the WP1 seems to be at. Powers have been identified. Some draft mechanisms have been drawn up, but need advice on whether those mechanisms are possible and if they are, can they do what the WP1 hopes they can do. Legal sub-team will perform some triage on questions for outside counsel. More is needed on best mechanisms rather than outliers, but for CCWG to identify those. * Issues arising from mechanisms List of mechanisms sent outside counsel. Any comments on the mechanisms documents.: Two firms cooperating. A response covering legal concerns and viability. Will provide feedback by the end of the week, and in one voice. Wiki page will be created for questions from the community, the legal sub team will coordinate which are asked and all submit a memo to outside counsel. Questions on the Sidley/Adler documents will be sent. Questions received from the community include Question about California incorporation. A request for a multi-jurisdictional survey, which is too broad, but may ask if the lawyers know of any jurisdiction where ICANN functions can be better accomplished. ARIN, the RIR for N America region, sent some legal advice the sub-group the outside counsel to consider, some informal response will be requested. Questions can be seem by outside counsel as the come in, but not respond until a memo received from the legal sub-team Not aware of another jurisdiction what would have greater benefit than California. But have not formally researcher this and the research would be a substantial exercise. Questions will focus on work stream 1. FAQ listing responses received will be created (future action) whether intergovernmental organization and sovereign states can bring actions against ICANN in state and fed courts in the US, or whether other fora should be utilized to bring their legal issues/action Conclusion the CCWG reached on 31 March: "Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2."

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Notes, Recordings, Transcript ST-WP Meeting #3
by Brenda Brewer April 8, 2015

April 8, 2015

Dear all, The notes, recordings and transcripts for the CCWG Accountability Stress Tests WP Meeting #3 on 8 April are available here: https://community.icann.org/pages/viewpage.action?pageId=52892510 Action Items * ACTION ITEM: Ask Co-chairs as soon as possible when we would be expected to apply stress tests to conclusions published for public comment. * ACTION ITEM: Leave strike-through on community veto and alert CCWG. * ACTION ITEM: Pass on legal questions to legal subteam * ACTION ITEM WP2 to look at ATRT rec to ensure that is a sufficient trigger. * ACTION ITEM: Steve and Jonathan to write paper and alert WP1/WP2/CCWG * ACTION ITEM: ST-WP address CWG accountability measures during next call * ACTION ITEM: Schedule next week's call for 90 min * ACTION ITEM: Jonathan to send a note to list which identifies Board inaction-related stress tests 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. 1. Beran Gillan is on audio line 2. Further editing of stress test 18 since Istanbul 3. There are many anticipated mechanisms which we supposed would be part of the comment period e.g. mechanism of community veto - that was present in 8 of our stress tests. Community veto, however, is not being developed as part of WS1. May need to strikethrough some mechanisms. Eberhard has sent language for ST 21. Edward provided new ST (p.15) to be discussed Progress on ST 18. WP1 fully endorsed suggestion to proceed with change to Bylaw. Notion of how do we get Board to initiate action in proactive way - mechanism needed to force action. CWG identified set of stress tests as critical. 3&4 still up for discussion Expectation that we will apply stress test to what will be published for public comment. ACTION ITEM: Ask Co-chairs as soon as possible when we would be expected to apply stress tests to conclusions published for public comment. Community Veto Stress test 3 litigation arising from existing public policy & stress test 4 new regulations or legislation. Proposal to leave strikethrough and alert colleagues as a warning. If no community veto, we would take it out. Removing community veto would not be fatal. --> Alternatives: reconsideration or IRP - these two mechanisms are close but not identical to community veto. Parameters are being set for reconsideration request (Cf Robin Gross' template) --> Community veto is not redundant ACTION ITEM: Leave strikethrough on community veto and alert CCWG. Forcing ICANN's Board to implement a recommendation ST 17 ICANN attempts to add a new top-level domain in spite of security and stability concerns expressed by technical community or other SG. ATRT2 recommendation compels Board to respond to advice from AC. Is a response enough to trigger a review mechanism or do we need Board to make resolution/take a vote in order to have something to review? LEGAL QUESTION: can we ensure there is a response which relates to inaction of Board, not just responses that are triggered by action of Board? ACTION ITEM: Pass on legal questions to legal subteam If there is a response to issue, it is a far more high consequence such as proposal to spill whole Board. Spilling Board could be result of inaction. If inaction from Board, is it enough to trigger reconsideration or IRP? Where is the linkage? ACTION ITEM WP2 to look at ATRT rec to ensure that is a sufficient trigger. It would depend on nature of response/decision. We must have clarity about triggers. ST11 Compromise of credentials WP1 and WP2 to ensure reconsideration or IRP can be triggered on inaction of Board. ACTION ITEM: Steve and Jonathan to write paper and alert WP1/WP2/CCWG ST 26 suggested by Edward Morris was added. 4. ST 18 will be discussed on next CCWG call. 5. Following stress tests have been identified in context of CWG work: Failure to Meet Operational Expectations 1. Change authority for the Root Zone ceases to function, in part or in whole. 2. Delegation authority for the Root Zone ceases to function, in part or in whole. 11. Compromise of credentials. 17. ICANN attempts to add a new top-level domain in spite of security and stability concerns expressed by technical community or other stakeholder groups. 21. A government official demands ICANN rescind responsibility for management of a ccTLD from an incumbent ccTLD Manager. High priority should be given to this. On 13-14 April the CWG is having intensive work day Expecting long form document The CWG would have to build text around it to show how this would be applicable and how it is mapped. Suggestion to have Cheryl & Avri circulate CWG accountability mechanisms as soon as high confidence they are close to final stage ACTION ITEM: ST-WP address CWG accountability measures during next call ACTION ITEM: Schedule next week's call for 90 min ACTION ITEM: Jonathan to send a note to list which identifies Board inaction-related stress tests ST 21 TBD

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Questions regarding access to IRP when harm is prospective
by Burr, Becky April 8, 2015

April 8, 2015

Earlier today Rafael Perez Galindo wrote: we deem it essential that the standing scope encompasses not only materially affected persons or entities, but also potentially affected ones. The rationale behind this proposal is that there are instances in which the harm is only done AFTER a decision that violates the Bylaws or Articles of Incorporation is made. A typical example would be the decision to delegate a new gTLD that has a high likelihood of harming determined interests or rights or users. In this case, the potentially harmed communities should be in a position to file an IRP BEFORE the harm is done, thus avoiding the commission of the violation. Hence, sometimes it makes no sense to wait till irreversible damage is caused, and a provision envisaging this situation should be put in place, expanding the scope of legitimacy to file an IRP to situations in which it is demonstrated that a severe harm can potentially be done. I responded as follows: As to “potentially affected” parties, I think we are really talking about “prospectively affected” parties. In other words, if the Board takes an action, the party in question will be materially or significantly and adversely affected. In that case, a prospectively affected party would have standing to seek relief prior to an action or decision to the extent the prospective harm is ‘material’ or ‘significant’ and the normal standard for pre-emptive or injunctive relief is met. This would require a showing on the part of the prospectively affected party that they are likely to win an IRP on the merits and that there is no adequate remedy once an action or decision has been taken. Putting aside the merits of any particular case, I believe that this approach has been adopted in at least one ongoing IRP. The chart below reflects my quick research regarding how this issue is handled in different (English speaking) jurisdictions, and how it has been applied in the international arbitration context in an ICANN IRP. (It would be great if Thomas and Leon could provide information on how this applies in civil law jurisdictions.) Our task is to decide (a) whether we agree that this kind of prospective harm should be covered, and if so, what standard should be applied. Please let me know your thoughts. Ontario, CA Three-part test for granting an injunction in R.J.R Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. (1) Is there a serious issue to be tried? Some cases apply a low standard (case is neither vexatious or frivolous) and others apply a high standard (moving party to demonstrate that it has a strong prima facie case). (2) Will the applicant suffer irreparable harm – i.e., harm that cannot be quantified in monetary terms or that cannot be cured - if the injunction is not granted? (3) Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits (“balance of convenience”)? Are there other factors to be considered, e.g., “clean hands”? Australia Under Australian Broadcasting Corp v O'Neill (2006) 227 CLR 57, an interlocutory injunction will be granted where it is shown that: (1) There is a serious question to be tried in that there is a sufficient likelihood of success so as to justify in the circumstances the preservation of the status quo pending the trial; (2) The balance of convenience favours granting the injunction (that is, the inconvenience or injury the IPR holder would likely suffer if the injunction were refused outweighs the injury the alleged infringer would suffer if the injunction were granted); and (3) The plaintiff is likely to suffer injury for which damages will not be an adequate remedy having regard to the nature and circumstances of the case. United States Under the Federal Rules of Civil Procedure, as explained in Johnson v. Burge, 506 Fed. Appx. 10, 11 (2d Cir. 2012), a party seeking injunctive relief must show: (1) Irreparable harm; (2) Either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits; and (3) A balance of hardships tipping decidedly toward the party seeking the injunctive relief. International Commercial Arbitration (ICDR) Article 21 of the ICDR Rules grants broad powers to the Panel and the Emergency Arbitrator to “take whatever interim measures it deems necessary.” In order to demonstrate entitlement to interim relief on an emergency basis, a party must indicate the relief requested, explain why it is entitled to the requested interim relief, and demonstrate why the relief is required on an emergency basis. As applied in DCA Trust v. ICANN, interim relief may be granted if the claimants demonstrates (1) There is an urgent need for relief to protect an existing right (2) The relief requested is proportionate to the harm that would occur in the absence of interim relief; and (3) The claimant has a reasonable possibility of succeeding on the merits. (from another source "… most of the Rules do not provide any guidance other than that the decision maker “may” grant interim relief where the decision maker deems it “necessary” or “appropriate.” Some commentators have criticized this lack of specificity, arguing that defined standards will help overcome arbitrators’ traditional reluctance to grant requests for interim relief. Consequently, one commentator has argued that an applicant should be required to demonstrate that it is “possible” (not “probable”) that it will prevail on the merits and that it will suffer irreparable harm if the relief is not granted. This is the approach that UNCITRAL has adopted. Others have argued that these standards, although vague, necessarily incorporate other requirements, such as irreparable harm, urgency, and some consideration of the strength of the parties’ claims and defenses.”) J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz

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Follow up from the last CCWG call
by Izumi Okutani April 8, 2015

April 8, 2015

Hello all, I'd like to follow up from the last call for reconsideration being list as WS1 requirement. As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed? As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1. We have at this point identified as WS1 : - Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget" It looks like we already have several core powers to ensure accountability of key decisions. I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1. As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point. I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1. Best Regards, Izumi Okutani

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Updated CCWG-ACCT Calendar of calls
by Brenda Brewer April 8, 2015

April 8, 2015

Hello all, Please see the attached updated calendar of calls coming up for CCWG-ACCT. Thank you! Brenda

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Fwd: Draft Agenda for Call #7 WP1: 21h UTC on Wed 8 April
by Jordan Carter April 8, 2015

April 8, 2015

Dear CCWG members, below for your info our agenda for the WP1 meeting on 8 April. cheers Jordan ---------- Forwarded message ---------- From: Jordan Carter <jordan(a)internetnz.net.nz> Date: 8 April 2015 at 14:45 Subject: Draft Agenda for Call #7 WP1: 21h UTC on Wed 8 April To: "wp1(a)icann.org" <wp1(a)icann.org> Dear WP1 members, We have our next call coming up in around about 20 hours: 21h00-23h00 UTC on Wednesday 8 April. *Please note it's a 2hr slot.* The draft agenda is as follows, subject to any additions proposed between now and then: *1. Agenda review* *2. Report back from CCWG meeting on 7 April* *3. Working through our draft Comment Report* *We need general comments and specific comments on the overall approach, and on specific items of disagreement, improvement, or just questions, so we can update and then circulate an updated version for us to look at on the next call.* *To be most economical with time, it would be good not to have specific drafting comments dealt with verbally on the call - these would be most helpful as comments bubbles or tracked changes in Word, or just in text in emails responding to specific text from the paper.* *This will be the biggest item on our call.* *It's already apparent that another layer of detail will probably be required.* *4. Discussion (incl with the legal advisors) on how to work out our mechanism* *There are a decent list now of possible mechanisms developed by us - membership/delegates, a group inside ICANN under the bylaws, SO/AC processes - to which our legal advisors have offered additional suggestions e.g. the very large super-board.* *We need to work out how to make a call on this.* *My suggestion as rapporteur is that we try to focus on one or two options - the permanent CCWG/Community Council model, or the superboard model that Adler have discussed - and ask the legal advisors which of those models can deliver what we need, or whether they recommend a different mechanism instead (and if so why).* *As prep I will update the table we began to discuss in Istanbul that sets out the key features of the different mechanisms, and circulate it later tonight.* *5. Agree agenda for 10 & 13 April calls* *Current suggestions for 10 April:* *- next version of our comment report* *- agree what parts can be sent to CCWG as early notice for the 14 April CCWG call* *- focus on decision weights and thresholds for our powers and mechanisms (who has the power)* *Current suggestions for 13 April:* *- resolution on a mechanism to recommend to the CCWG* *- final review of comments report before sending complete input to CCWG* *6. Any Other Business* Any other suggested agenda items, please let us all know ASAP. cheers Jordan -- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan(a)internetnz.net.nz Skype: jordancarter *A better world through a better Internet * -- 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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CCWG timeline documents
by Adam Peake April 7, 2015

April 7, 2015

Hi everyone, Please find copies of the revised CCWG timeline attached. Files CWG-CCWG_timeline_v0.9.7 complete CCWG and CWG timeline, delivery of proposals and tentative implementation plan. This file is on the wiki https://community.icann.org/display/acctcrosscomm/Drafts+for+CCWG-Accountab ility CWG-CCWG_timeline_v0.9.6.9 CCWG and CWG timeline for delivery of proposals CWG-CCWG_timeline_v0.9.6.9b CCWG tentative implementation pending adoption of CCWG recommendations and work stream 2. Best, Adam

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