April 2015 - Accountability-Cross-Community

Notes and action items CCWG ACCT Day 2 Session 3
by Adam Peake April 25, 2015

April 25, 2015

Notes and action items for CCWG ACCT Day 2 Session 3 24 April 2015 Also posted on the wiki https://community.icann.org/pages/editpage.action?pageId=52897583 Action items Action: Becky to confirm with ccNSO if this non-inclusion in the IRP, is acceptable. Action: update text redelegation and revocation issues should not be subject to the IRP, pending ccNSO policy. And considering GAC contributions. Action: to ensure the IRP txt is aligned as above. Action: Chairs will review the transcript and put a proposal to the group, and double check with the lawyers. Action: Alan to provide a sentence about the reviewing past reviews (WHOIS etc) Action: Should take on the action item that CWG will Action: Staff+ Steve Del Bianco to make sure the text in the reviews tables lines up CCWG ACCT Day 2 Session 3 24 April 2015 This call 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 work%20days%20work%20methods%20-.pdf?version=1&modificationDate=14295697203 31&api=v2 Day 2 Session 3 archives will be available at: https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+3 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 AGENDA: 1) Recap of session 2 2) Outstanding stress tests - Stress tests where the contingency does not appear to be fully mitigated a) Including stress test 21: Government official demands rescind of a ccTLD 3) Second reading of outstanding issues for public comment report 4) Next Steps Work Plan NOTES & ACTION ITEMS: These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Rollcall: N/A Session 2 recap. Preserving ICANN commitment from the AoC and through the AoC reviews, but not covered the bylaws changes suggested by the stress tests. 2) Outstanding stress tests - Stress tests where the contingency does not appear to be fully mitigated Stress test 21. Govt official demands a reassignment of a ccTLD. Currently no mitigation on this test. No answer, but to see if a revocation of a reassignment that did not follow procedure: RFC, FOI and GAC principles were considered. CWG has suggest that ccNSO will soon be working on policy. The test articulates the issues, but no solution/bylaws proposal or mechanism emerging. CWG request that CCWG should note define mechanisms, ccNSO addressing this. Unless perhaps out appeals mechanisms apply. ccNSO has been working with GAC on transfer and revocation, a framework of interpretation (FOI) worked on. The FOI references an appeals mechanism, but the ccNSO is still working on the appeals mechanisms, and as ongoing work the ccNSO is not will to sign up for any particular appeals process. And not all ccTLD managers are subject to 1591 as their TLD assigned before it was issues and before the GAC principles of 2006. Could the local parties use the IRP mechanisms? Or in line with the CWG input should we say this should not happen in the IRP. The view of the ccNSO is until ccNSO policy is developed on this the IRP is not applicable to the relegation process. Suggestion that we include language to say these issues should not be subject to the IRP, pending ccNSO policy. Action: Becky to confirm with ccNSO if this non-inclusion in the IRP, is acceptable. Keep current text, this mechanism could be available if compatible with the Policy development process of the ccNSO This section was frozen before the CWG request, we will be updating this in the next few days. CWG explicit not to address pending ccNSO policy. Action: update text redelegation and revocation issues should not be subject to the IRP, pending ccNSO policy. And considering GAC contributions. Action to ensure the IRP txt is aligned as above. 3) Second reading of outstanding issues for public comment report NomCom to recall board members or a new committee and community. Don¹t believe NomCom will be interested in or able to remove people appointed by a previous NomCom. And don¹s want to put a NomCom in the position of taking instruction from the SO/AC ash this affects the independence of the NomCom. pre-sign an letter to resign under certain conditions, and conditions might be a super-majority of the SO/AC to express dissatisfaction with their service. This could remove one or more. Suggestion for the recall NomCom be created. This NomCom takes the SO/AC appeal and no complication over the person¹s appointment. The only issue is the complaint. A simple matter Disagree that the pre-signed letter is enough to remove a director, as opposed to being used to initiate a process. It may tend to be a reaction to a situation going on and does not involve a check and balance. Comment: use the current NomCom, does not see the difference in the board process. Comment: Removal for cause may cause appeals and other processes. A group formed ad Hoc may be hard to fit in the member/designator models. (legal) The resignation letter. Not meant to usurp and checks and balance. It's the end of the process in an entire board recall situation. A contractual obligation for the director to step down from the board if the sending organization requested. Current NomCom can be used. The SO/AC may also have a changing membership. This is the same for the NomCom In favor of Avri¹s proposal to create a new structure of a recall NomCom as in the draft proposal. Many seem in favor of not putting the current NomCom on the spot. And this suggests the recall NomCom mechanisms should be favored. The conditional pre-signed resignation, also useful as the NomCom would not have a voting right in the community mechanism. The recall NomCom originally written for individual director recall. But not the whole board, and that the NomCom appointees to the board could stand or fall with the rest of the board by whatever mechanism is adopted for that. If the recall NomCom constituted separately from the NomCom then lawyers have suggested this may not be possible as they are not the appointing body. [Possible Action for legal sub-team to consult with the lawyers TBC] Seem that the recall mechanism would be outside the community. Have often spoken as the threat of removal as a means of influence what a Board member might do. Comment. Discomfort with the notion of removing a Board member. They are there for 3 years, community does not see al their work. On the table: Let the community do it, with some push. The recall NomCom, which can only take place with a trigger from the SO/AC community. Would be under the NomCom bylaws, and if a member model the NomCom would be an unincorporated association. and the recall NomCom would come under the NomCom¹s procedures. Or use the existing NomCom, but hopefully keeping the petitioning mechanisms. (legal) The power to remove is a reason for having a member of designator model, with reason or no reason. And hearing it would be difficult for the NomCom to do this is problematic. But the proposal is viable. Could have two committee under the unincorporated association entity and one of those could appoint and one recall. For individual directors. And these directors could still file a pre-resignation letter for their removal, or absolutely needed for the removal of the whole Board. Is the Avri option what Josh described? It is his the model could be implemented if we go with a member designator model and the NomCom becomes a unincorporated association. Going forward if the NomCom is to put someone on the board it does need to be at least a designator, an unincorporated association. And that entity can have two committees. The process from the view of counsel is as described. A problem is that the new committee is constituted in the same numbers as the NomCom, so very different from the community mechanism. If constituted same as the community mechanism could go along with this. Note, the process is to decide which option we put to the community. Some do not have enough information to make the decision now, and objection to the use of a poll. Would be advisable to have the same organization principles for the group that recalls as the one that appoints. If member or designators, then the groups appointing to the board must be unincorporated association. The NomCom would need to take on the required structure. Then the question is should the same group of people who appoint be different from those who remove. Then SO/AC community reps would bring in their input in the petition. Suggestion for a legal paper to explain the options. Action. Chairs will review the transcript and put a proposal to the group, and double check with the lawyers. Board recall powers Reference proposal. 5 for SO and AC of ALAC and GAC, and 2 for RSAC and SSAC brings a total of 29 people. 75% is 22 of 29. 80% 4/5, is 24 votes of 29. 85% is 25 votes of 29. Petition is 3 SO/AC. If we want to block a single group from blocking a proposal then a 85% trigger is not workable. Assuming that the will be able to split vote, then 80% is appropriate, 75% if a block vote. The dynamics of the ICANN community will make reaching such a high threshold as 75% will be difficult. The group is leaning to individual vote. Removal of the whole board, and need stability. 80% means if a single group blocks then requires unanimity from the rest and that is too high. Abstention are not counting. The options are 75% and 80% with 75% preferred as the reference option. The removal NomCom would have a different structure. The pre-resignation letter essential, to ensure the recall process has effect. If the 75% threshold is met then expectation is that all directors would resign. Diversity (participation and inclusion) as an issue for WS2. This proposal is consistent with Jan Scholte¹s advice received before the meetings. Is included in the core values work? Seeking what does it mean to be transparent by default? How do we record what is classified and be aware of when something is classified. And as has come up in ATRT, just because something has classified at the time, does it mean to be so in 5 years. It is almost default that every inquiry requires a DIDP Not seen any objection to these two items Also suggest looking at ICANN¹s whistleblower program in WS2. In WS1 the 4 AoC reviews we are suggesting bringing over they will have better access than before to information needed to use during a review. A package of three items to be added to WS2 Diversity Transparency and Whistleblower policy Noting we will ask the community for any additional issues during public comment Package accepted. AoC Section 8 Identified that 8b is already reflected in the ICANN bylaws through article 18 offices. And members and designators could block any changes. Question is whether we want to move article 18 to fundamental. Comment: to reflect that here are 2 opinions in the group that it should either be kept in the bylaws or as fundamental. Does it cause concern for anyone to replace principles by headquarters. Suggestion to seek advice from the lawyers on actual language. The bylaws are more specific in CA/Los Angeles, and bylaws only refer to the United States. Registered offices are often in different states from headquarters. The articles capture that it is a CA corporation, so the package captures the whole. Pedro: The CCWG is considering whether bylaws Article 18 Section 1 should keep its current status or be among the bylaws sections listed as ³Fundamental Bylaws². In the latter case, any changes to it would require positive approval by Members/Designators. Suggestion that to allow flexibility and a lower threshold, if it is to be a fundamental bylaw or traditional. Both options will be in there. Reviews in the bylaws and AoC Highlight difference of today and being proposed. proposed: assessing the role and effectiveness of the GAC in its interaction with the board. in the AoC, item f. Implementation of recommendation. The review team may terminate reviews and create new reviews. Timing. ART is every 3 years. Suggest no less frequently than every 5 years, which would allow us to do this more frequently. 5 years: The current implementation is from the receipt of report, so adding an additional year. The itemized points are all mandatory, and believed others out of scope. Need to take care to allow flexibility. Review other review teams. Clear in ATRT2, first to review other review teams, 1 lack expertise, 2. exponentially increasing work. suggested the review be done by the successor review. 'timing". to make a point about the time the board received it. unclear on itemized issues (f) May be repeated in each review or in the chapeau Each ATRT must review the previous ATRT. Action Alan to provide a sentence about the reviewing past reviews (WHOIS etc) comment: the general principles of what we are trying to archive is actually captured in section of 11 of the ATRT2 report. If there is a pressing need for a more frequent review then the proposal gives that flexibility. Review effectiveness of WHOIS (directory services is included) Privacy concerns added with the OECD principles, and this is new AoC every three years, and left at three years (expecting change wrt directory services) Evaluation of the new gTLD. Change of languages as written pre new gTLD program. Competition and consumer trust and choice are reflected in the core values. Subsequent rounds should not be opened until the review of previous review implemented. Action: Should take on the action item that CWG will recommend an IANA performance review will be conducted as CWG requirements, as a placeholder. Proceed with language as suggested? Action: Staff+ Steve Del Bianco to make sure the text in the reviews tables lines up Fulfilling CWG requirements Ability of community to veto the budget. Feasible, but more enforceable under the member model. Ability to set up an IANA function review. And that is be submitted as a fundamental bylaw Suggested that the CWG would be placed in the same section as the other reviews. Currently reviews are not Fundamental Bylaws. The ability to trigger ad hoc [special] reviews. The power to convene a review is driven by the community. And there is room for this special out of cycle review. ccTLD revocation issue covered. The IANA functions review in the CWG only covers naming functions, but it might evolve within the ICG. Next Steps Document update with the feedback received. Update by the rapporteurs, staff and co-chairs. Final document for review and approval by the CCWG Final document May 1st, for final adjustments by the group, with a goal to publish on May 4th. And public comment for 30 days, comment period agreed by the group. The final review should not be for substantial change: editorial and inconsistencies. First check of the document on Tuesday's regular call, (April 28) and if needed hold an additional call on Thursday (April 30). Is this acceptable? Will affect the CCWG timeline. The public comment start was April 28, moving to May 4. Public comment moved by a few days. Staff complies a review tool for the community to review. Public comment 30 or 28 days? 30 days, green tick please Objections to keeping to 30 days red cross Agreement to open public comment for 30days. The advisors will also be given opportunity to review the document. We will review the CWG stress test. Kavouss: profound thanks to the co-chairs, the rapporteurs, working group chairs. Thanks to colleagues for you participation and support, I have learnt a lot. Thanks staff. And congratulations to ICANN. Thank you to you all. co-chairs: Thanks to staff, rapporteurs, lawyers and thanks to the whole group. Adjourn.

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Suggestion about decription of requirements identified by CWG-Stewardship
by Izumi Okutani April 25, 2015

April 25, 2015

Dear all, I found the meetings in the past two days extremely helpful in setting directions on points which needed confirmation of support (or no support) by CCWG members. That was great. Before I offload my head from ICANN Accountability issues over the weekend, I would like to raise one point here on the mailing list, which I suggested on the chat at one of the calls on Thursday 23 April. For the mechanisms we are proposing for WP1 and WP2, may I suggest to reflect in our proposal for the public comments, the mechanisms identified as requirements in CWG-Stewardship? I would think it is not complicated, if we add a sub-section such as "Requirements identified by CWG" in Section "5. Input Gathered from the Community - Required Community Powers", and refer to specific mechanisms in WS1 and WS2 which correspond to CWG requirements, for example. This would: - Make our considerations for requirements look more comprehensive, in addition to the requirements identified through the public comments which is already in the current draft of our proposal. - Helps the readers to have a better understanding on why this particular mechanism is needed and how it helps, when considering their feedback. - Gives more concrete assurance to CWG-Stewardship members that CCWG are addressing their requirements in a publicly visible form. Thanks, Izumi

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Fwd: draft proposal for AoC section 8 - for our next call
by Steve DelBianco April 24, 2015

April 24, 2015

Per Mathieu's request, here is a one page summary of proposed way to deal with AoC section 8. I tried to reflect suggestions from our last call. Look forward to discussion. ? -? Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206<tel:+1.703.615.6206>

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Fundamental Bylaws memo
by Jordan Carter April 24, 2015

April 24, 2015

Hi all For those not on the call, the attached is to deal with a gap in the draft comment report. It has only come into existence in the past 24h as we realised the gap. Apols for the short notice, as explained by Mathieu. 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 *

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Notes-Recordings-Transcript links for Intensive Meeting Day 2 - Session 2 - 24 April
by Brenda Brewer April 24, 2015

April 24, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 2 Session 2 - 24 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+2 <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 Brenda IN SUMMARY Recap of session 1 ACTION ITEM - Take on FAQs suggestion and publish the responses ACTION ITEM - Provide Sebastien with an answer on models Preserving ICANN commitments from the AoC ACTION ITEM - Change commit into shall ACTION ITEM - Justify decisions we are taking with regards to AoC. ACTION ITEM - Use brackets to highlight different options and move back to this later ACTION ITEM Defer to lawyers on principal office or HQ AGREEMENT - Change non-commercial to non-financial ACTION ITEM - Second read 8.b proposal (fundamental or not) AoC Reviews ACTION ITEM - Determine how we can insert diversity into text. Sébastien to provide draft text. AGREEMENT - This will be presented for public comment with note that diversity would need to be inserted into text. Bylaws changes suggested by stress tests AGREEMENT No objections - reading complete Next Steps ACTION ITEM - Defer recap to session 3 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. Becky Burr - Josh Hoffeimer - Edward McNicholas on phone line only Recap of session 1 We went through items listed under WS2 and the list was confirmed by the group along with a suggestion to add transparency and diversity. We have discussed sections 1-5 of report and have confirmed what is in the report in terms of substance. An amendment to ICANN "remains" accountable was suggested by Robin. We are waiting for the suggested text to sent to group. Content of these sections was confirmed. There was a suggestion that we should reorganize report: it takes 25 pages before finding conclusions. Glossary will be added to the report. We need a good summary document to make it easier for community to read the documents. The questions assembled for the public comment period will be to the point, clear and easy to understand to make sure we have answers that are reflective of the recommendations. We further discussed weighing options. Variations will be presented to community for comment. Models boil down to designators and members. More discussion is needed on liability i.e. liability risk of being sued if incorporated under California law and jurisdiction. Membership model is the reference for our work - it is getting substantial traction in our group. Designators will be reference in comment period. - Bylaws model will be among the models up for consideration. ACTION ITEM - Take on FAQs suggestion and publish the responses ACTION ITEM - Provide Sebastien with an answer on models Preserving ICANN commitments from the AoC We have talked about incorporation of AoC into Bylaws as part of mission, core values conversation. The initiative to bring AoC reviews into Bylaws stems from ST #14 - without the IANA contract it presents opportunity for ICANN to walk away from AoC. WP1 determined which paragraphs would be appropriate to be migrated into Bylaws. We then turned to AoC reviews. We added comment that if successful - the document becomes unnecessary The next ATRT could be triggered by the next Bylaws. On paragraph 7 - ICANN "commits" is appropriate in Affirmation but not in Bylaws ACTION ITEM - Change commit into shall Mapping AoC into core values was covered yesterday. 8.b is ICANN's commitment to maintain not-for-profit under US jurisdiction. That is substantially covered by Bylaws article 18.1. Existing bylaw provision is being preserved and AoC brought into Bylaws to fill in gaps. We then need to turn to question of whether 18.1 article needs to be a fundamental Bylaw. Not-for-Profit is featured in articles of incorporation item 3. We should clarify whether veto does apply to articles of incorporation or possibly to give positive consent - Insertion of non-commercial financial impact: the is specified under general commitment and there is no added value. Searching for non commercial financial impact definition as concerns might be introducing something that might be ambiguous. With regards to #8, the articles of incorporation - unless made supermajority - can be changed as easily as Bylaws (not fundamental Bylaws). We need to justify why we are taking significant step. Articles of Incorporation are a statement of fact - bylaws are a statement about future. ACTION ITEM - Justify decisions we are taking with regards to AoC. - We need to make sure we don't get into wordsmithing. Non-commercial is something we need to be aware of. - Our reliance upon articles to capture not-for-profit assumes we have power to block changes to articles. If we cannot control change, we need to migrate non-commercial article into Bylaws --> Articles amendments currently require 2/3 approval by directors, and if there are members, 2/3 of the members - We don't need to refer to non-commercial otherwise commercial will be excluded from paragraph. "Will" perform is not acceptable, "Shall" is obligation. (or should) ACTION ITEM - Use brackets to highlight different options and move back to this later - AoC 4 (impact assessment) & 7 (general transparency requirements) include important concepts for transparency. It is proposed that they be inserted into Bylaws -ICANN is considered business club - it is opportunity for ICANN to show it has other impact than commercial. Suggestion to change "non commercial" to "non-financial" Non-commercial is wider than non-financial. AGREEMENT - Change non-commercial to non-financial - All AoC are promoting SSR, transparency, multistakeholder. Section c is about particular jurisdiction. If it was more general it would be fundamental. But since under particular jurisdiction don't see how this is fundamental. - Option between HQs and principles: HQs have more meaning than principles. Suggestion to seek HQs instead of having principles. Whether this paragraph would be fundamental and normal: if we put every thing from AoC into fundamental, could create sensitivies outside CCWG. - Fundamental difference between paragraphs from AoC and this one relating to HQs location. We have among the community conflicting views about it. Consider more carefully - This does not need to be fundamental bylaws. Even if imported AoC reviews, it is already in bylaws that statement is a strong arm that had nothing to do with reviews itself. Let's not make it stronger than it already is. - 1) principal office & HQs - deferred to lawyers ; 2) import 8.b. into bylaws and giving it fundamental or standard protection. ACTION ITEM Defer to lawyers on principal office or HQ - Surprised b not brought into bylaws as fundamental (multistakehoder etc) - 8b should be fundamental bylaw. this will be scrutinized. - Reference it as normal Bylaw - alternative would be fundamental Bylaw - Lawyers have focused on governance documents. Empower the community to have more control. Cautionnary flags that recommendation or outcome that fundamental decision whether decision to be moved out of US could be decision of vote (2/3) - that would not be consistent with drivers. Recognize that this decision is momentus and avoid perception that jurisdictional shift could be engineered by specific group RECAP: Confusion about what is being proposed. To be rediscussed. ACTION ITEM - Second read 8.b proposal (fundamental or not) AoC Reviews Community has requested that reviews should be imported into Bylaws. Text has been proposed. First reading indicated overall agreement of what would look like. 4 suggestions were made: 1) ability to sunset old review and create new ones; 2) community appoints its representatives; 3) access to internal documents; 4) timeframe; 5) Board shall consider approval and begin implementation. Requirements would apply to all reviews ATRT2 recommended that there be an annual report. There have been yearly periodic reviews about progress to be made in implementing changes. Objective is to integrate ATRT requirement into a Bylaw statement. - Diversity concerns: we need to find a way to have diversity in any new group created. --> Only diversity you can make is ask groups to consider diversity given that no prescribed methodology. ACTION ITEM - Determine how we can insert diversity into text. Sébastien to provide draft text. AGREEMENT - This will be presented for public comment with note that diversity would need to be inserted into text. Bylaws changes suggested by stress tests 6.8.1 is a reflection of ATRT recommendation: force Board to respond to Adivsory Committee formal advice. Require consultation and mutually acceptable solutionfor GAC advice that is backed by consensus. AGREEMENT No objections - reading complete Next Steps ACTION ITEM - Defer recap to session 3

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SLIGHTLY revised Fundamental Commitments and Core Values Chart
by Burr, Becky April 24, 2015

April 24, 2015

This chart slightly updates the April 17 Frozen Draft by reflecting WP1 work on AoC commitments. Changes (minor) are in PURPLE 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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Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 3 - 24 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 - 24 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+1 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Alice ---- CCWG ACCT Day 2 Session 1 – 24 April 2015 IN SUMMARY Section 8 - Work stream 2 proposals ACTION ITEM - Avri to circulate language to list for discussion ACTION ITEM - Sebastien to provide language on diversity for discussion on list Discussions of sections 1-5 ACTION ITEM - Rapporteurs from work areas 1 and 2 to review language confirm it is accurate ACTION ITEM - Review how can adjust structure to get reader quicker to core of matter ACTION ITEM - Insert a glossary placeholder ACTION ITEM - Check whether this is Charter language ACTION ITEM - Robin to send proposed edits to list for discussion ACTION ITEM: Jordan to circulate this language on list for discussion AGREEMENT - Stable text that we can provide in advance to translation Questions for public comment report (to be provided by CoChairs) AGREEMENT: Cochairs and Rapporteurs to adjust sections to incorporate questions after intensive days so that last version incorporates questions for you to assess ACTION ITEM - Set up point of contact for clarifying questions as part of public comment process Community Mechanisms ACTION ITEM: - Reach out to SSAC RSSAC on weight options AGREEMENT - Membership model to be considered a reference for our work. We will be signaling it has more traction but will also leave reference to designators in model for community to have all context in public comment period ACTION ITEM:- Clarify that legal assessment is solely based on California law SESSION CONCLUSIONS - We have two discussion points for WS2 proposal that will be taken onboard for session 2 - Jordan, Robin, Avri and Sebastien to circulate language to list for discussion - Significant progress was made on community mechanisms. - It is clear that member option is fitting key requirements best but uncertainty whether stakeholders at large will accept this model. we will need to provide legal advice to inform community but will need to be practical 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. Josh Hoffeimer - Tijani Benjemaa - Barrack Otieno and Alice Munyua not on Adobe Connect at this time Recap of Day 1 Revised mission core values and notion of Fundamental Bylaws are approved . We have conducted a first review on IRP enhancement - a second reading will be made today. We obtained approval of request for reconsideration. Community mechanisms, recall of Board, recall of individual Board members, reject budget/strategic plan, reject changes to ICANN Bylaws to be rediscussed. Section 8 - Work stream 2 proposals Current list available in the draft report includes: • Enhancements to ICANN's accountability based on law applicable to its action - • - Enhancements to Ombudsman role & function • - Limiting ICANN's ability to deny transparency/disclosure requests • - Improvements to ICANN's budgeting and planning process that guarantee the ability for the community to have input, and for input to be given due cosnideration • - Define security audits and certification requirements for ICANN's IT system Feedback - Consider alternative options for jurisdiction - DIDP (as a follow up to day 1: review of DIDIP recommended as it relates to IRP and reconsideration request. Suggestion for DIDP to be a broader review. --> This would be captured in "Limiting ICANN's ability to deny transparency/disclosure requests" - What kind of timeframe are we expecting? At what point will we get to these? Will we be waiting for implementation? --> WS1 we are working on items that need to be prior to translation. It will include adoption and implementation phase. We will have freed up time for group to dive into WS2. - They should be a review process put into this. We will be recommending substantial restructuring. We need to have checks and balance and this concept should be captured. --> Envisages Team exercising implementation oversight and if any issue is spotted, we can reconvene and work on that. - We are putting all transparency off yet again. There is a problem with how much stuff ends up needing DIDP. You have to work to get things visible. It is a broader issue than just improving DIDP. Transparency philosophy of ICANN (methodology) should be an issue that is noted separately. Suggested language: Institute a culture of default transparency at ICANN, including guidelines for when it is acceptable to classify information, requirements for logging decisions to classify information and procedure for de-classifying information.not sure classify is the right term, but it all that occurs to me at this point. ACTION ITEM - Avri to circulate language to list for discussion - What could be the link between WS2 and ATRT3? Consider diversity: how do we enhance diversity across ICANN's organization? --> We have recommendation that relates to ATRT review - connection is made between our work and future reviews. ACTION ITEM - Sebastien to provide language on diversity for discussion on list Discussion of Sections 1 -> 5 Sections present work we are doing: introduction & background, methodology, summary of problem statement & definition, Accountability of existing accountability mechanisms, input gathered by community (short summary of work area 2 of input). Work area 1 and work area 2 outputs will be put into appendices. ACTION ITEM - Rapporteurs from work areas 1 and 2 to review language confirm it is accurate - Let's not spend too much on this. - 20 pages to get to substance might be too heavy - Assess whether could change order of sections ACTION ITEM - Review how can adjust structure to get reader quicker to core of matter - Suggestion to leave as it is and to include a complete management abstract for community - We need to write report for readers - Decision hard to make in absence of executive summary. Need to find recommendations quickly - have meat closer to the front - Suggestion to have a placeholder for a glossary at end of report ACTION ITEM - Insert a glossary placeholder - Edits on introduction and Background: "remains" ACTION ITEM - Check whether this is Charter language ACTION ITEM - Robin to send proposed edits to list for discussion - Avoid language that there is no accountability at ICANN - Combine while there is a certain degree of accountability with enhancing - Corporate reaches level of accountability that is satisfactory to community is absence of contract would be a good way to frame it. - We are enhancing current accountability but also creating a new one and that needs to be clarified. --> Introducing mechanism would enhance mechanism - Language suggesed by Jordan "From this dialogue, the Enhancing ICANN accountability process was developed so ICANN can realise a level of accountability to the global multistakeholder community that is satisfactory inthe abence of its historical contractual relationship with the U.S Government. This contractual relationship has been perceived as a backstop with regard to ICANN's organisation-wide accountability since 1998." ACTION ITEM: Jordan to circulate this language on list for discussion AGREEMENT - Stable text that we can provide in advance to translation Questions for public comment report (to be provided by CoChairs) In Istanbul: we agreed we would be seeking confirmation as much as possible on our proposals and try to have questions that are focused on getting feedback. Questions would be standard about whether community agrees with the recommendation, agrees with list of requirements and ask how the community would recommend amending requirements. Asking for guidance on preferred options from community, stressing need to understand rational for prefering issues so that can use feedback. This section of the session is for us to get feedback on how to organize fitting questions into the report. It is a good way to open discussion on this. - We need to talk about status of report i.e. clarifyr on consensus. There are cases for which there are alternatives/options - community should pronounce in favor or against and could provide alternatives. How would we prepare these questions? It should be consistent with Charter. - In order to have proper evaluation, we need proper questions. - Asking clear-cut questions on specific parts of report. will enable us to have answers that focus on specific recommendations. AGREEMENT: Cochairs and Rapporteurs to adjust sections to incorporate questions after intensive days so that last version incorporates questions for you to assess - When you raise questions to public, we specify focal points in a way that people who need clarification can seek these clarifications. Suggestion to have Rapporteurs, Cochairs to work on focal point and to have dedicated source available for the community. ACTION ITEM - Set up point of contact for clarifying questions as part of public comment process Quick turnaround will be needed. - FAQs could also be useful. Community Mechanisms Seeking further comments on whether want to go with option 1 or option 2 - composition of community representation: Two options : 1) 5 to 2 .; 2) 4 to 2 - for public comment i.e. 1) ASO, ccNSO, GNSO ALAC GAC 5 votes. RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, : 4 votes. At-Large, GAC SSAC, RSSAC - 2 votes Feedback: - Need a degree of flexibility - Bridge gap between 4 GNSO, 1 for Nominating Committee appointees - GNSO could have 5 match to its own structure easily. There is traction for 5. Should we have 5 vs. 2 or should we have 3 SOs vs lower number of votes. The suggestion to give both ALAC and GAC only 2. - We should not have long discussion. We have explained logic of the choices. The difference between is whether ALAC and GAC should have opportunity for same representation as 3 SOs. Support option 1. - There is more traction for what we call option 1. Recollection that more traction for options for SOs - ALAC - GAC to have equal footing with less for SSAC and RSSAC. - ALAC wont approve report that goes with option 2. There are 5 regions. Rational for 4 is that 4 SGs and that disenfranchized some of appointees. - Let's retain both options. - The 2 options presented might not be the best 2. There was suggestions for equal footing yesterday. - Establish whether there is sufficient traction for alternatives. Option 1 gets central traction. Could narrow it down to 1 if clear preference. We could highlight preference and provide different options as needed. - CCWG discussed two options. During discussions some dregree of preference was expressed for option 1. There might be other options coming from community. We cannot eliminate options at this stage. - There is no real specialized expertise needed for level. If go with option and not talk about others, it is superficial. We need legal experts Better to present multiple options as long as clarify which option got traction and why. - We need to have clarity on various options on table. - Option 1 - call is the "central option" we are considering. This got a little more traction. We used it to test thresholds but not closing door for other options. - We have no one from SSAC/RSSAC - have we reached out to them? SSAC is not chartering organization because they do not have bandwidth but has strong interest in it. Need to pass this by them. ACTION ITEM – Reach out to SSAC RSSAC on weight options "Central option" not acceptable. RECAP: We will not be ruling out further options but for reference of work will flag the central option. This will give the community the chance to have altenatives to evaluate. IRP and approving budget/strategy plans would be viable through different means. Set of questions has been posed to lawyers. On Unicorporated associations, one of most important answers on set of questions would be ability to sue and be sued and obligation of paying for legal costs. - What of liability? --> They could still be sued today and in future. Bylaws should have plain and clear statements. - If challenging ICANN decisions, how can you ensure ICANN support if your are being sued? - 2 facets: 1) give community assurance that covered by ICANN; 2) what is the likelyhood of being sued? Need to convey that there are risks already that we are clarifying in Bylaws - What do we want out of this discussion? --> Have in report that we have traction for either models: designator or member - Aim is to have sense of signaling that we do have more traction for one of the models. - Membership model could achieve objectives - designators model even if supplemented by contract could not work - Likelyhood of being used: unincorporated associations not having assets and not easy to find and attach to lawsuit, will make it less likely to being sued. Certain degree of risk today - as individual covered by ICANN. It does not increase individual liability. - Designators vs. membership may well address some issues. We seem to undestand designator solution may not give us all options/powers we need. Community has to be made aware of issues that were raised. - People can act as partnership - partnership does not present itself as entity. Individuals are still liable. - Membership and designators cant be on equal footing - can't be opaque. Support membership. We are developing preference. We have to reference designators model but should clarify preference. - Unclear whether incorporation should be done under California law alone. --> Delaware would be default because of its flexibility. California gets you to unincorporated associations and you can rely on what exists in chartering but these are details that can be worked on once we have clarification on mechanism. --> California has good framework for unincorporated association - Have questions that have come up about membership model been addressed? --> Paramount importance is to be able to exhert as much control as possible over Board. The member model is by far the stronger model. What sort of power should have community over budget/strategic plan? The decision rests on how much power you want to reserve to community. Downsides on legal and geopolitical sides: members do have greater statutory rights and we would have to look at how organize bylaws. We would want to take steps to preserve flexibility. Members have rights that need to recognized. Designators powers are limited. --> We often base decisions on whether should be membership or designator based - California is one of strongest states in members' rights. - What if we decide membership is a mistake - can we switch to another model? --> California code provides for 45 days notice. If orgaznization wants to convert to designator structure, we would have to get members' consent to give up statutory rights. AGREEMENT - Membership model to be considered a reference for our work. We will be signaling it has more traction but will also leave reference to designators in model for community to have all context in public comment period. - Legal analysis may be different in other states and jurisdictions. Clarify that legal assessment is solely based on California law. ACTION ITEM - Clarify that legal assessment is solely based on California law Next Steps - We have two discussion points for WS2 proposal that will be taken onboard for session 2 - Jordan, Robin, Avri and Sebastien to circulate language to list for discussion - Significant progress was made on community mechanisms. - It is clear that member option is fitting key requirements best but uncertainty whether stakeholders at large will accept this model. we will need to provide legal advice to inform community but will need to be practical

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Question of incorporation jurisdiction of members outside USA
by James Gannon April 24, 2015

April 24, 2015

Hi All, Just a quick reminder that there was a discussion a moment ago on the CCWG call about the possibility of incorporating (Or un-incorporated associations) the member organisations in a jurisdiction other than the US. There seemed to be rough support for asking counsel to have a look at that but we said that we would bring it to the list first before asking it to be brought to the client committee. -James Gannon

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Re: [CCWG-ACCT] [Acct-Legal] Accountability questions to law firms
by Dr Eberhard W Lisse April 24, 2015

April 24, 2015

Dear Co-Chairs, why is every question, no matter how trivial, assigned, but the fundamental one(s), namely whether the USG in fact has any claim to the root and how this would affect the Transition, if any, and (indvidual) ccTLD Managers (in chronological batches), is not? It's not only a rhetorical question. Though, I have an idea, which I had voiced before the start of the actual work of the CCWG to some colleagues, due to past experiences. Please have a response ready in time so I can include it into my minority viewpoints that you will have to attach the the Request for Comments. greetings, el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Fwd: [Acct-Legal] Sidley/Adle Memo re Unincorporated Associations
by León Felipe Sánchez Ambía April 24, 2015

April 24, 2015

Dear all, Please attached find the answers by counsel to the FAQs regarding unincorporated associations. I think they come right in time for our discussions. It’s a 3 pages long document that summarizes different points on administrative issues, liability, funding, etc. Best regards, León > Inicio del mensaje reenviado: > > Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > Fecha: 24 de abril de 2015 3:37:37 GMT-5 > Cc: Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, ICANN-Adler <ICANN(a)adlercolvin.com> > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] Sidley/Adle Memo re Unincorporated Associations > Responder a: ccwg-accountability5(a)icann.org > > Dear Legal Sub-Team, > > Please find attached a memorandum providing answers to a series of questions directed to counsel regarding Unincorporated Associations. > > Cheers, > Josh > > JOSHUA HOFHEIMER > Sidley Austin LLP > +1.213.896.6061 (LA direct) > +1.650.565.7561 (PA direct) > +1.323.708.2405 (cell) > jhofheimer(a)sidley.com <mailto:jhofheimer@sidley.com> > www.sidley.com <http://www.sidley.com/> > <http://www.sidley.com/> SIDLEY AUSTIN LLP > > > > > **************************************************************************************************** > 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>

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