May 2015 - Accountability-Cross-Community

Fwd: [Acct-Legal] Revised memo on Unincorporated Associations, with sample Articles of Association attached
by León Felipe Sánchez Ambía May 1, 2015

May 1, 2015

Hi all, An update from the lawyers with regards to UAs Best regards, León Enviado desde el móvil. Errores tipográficos son culpa del tecladito y mis dedos gordos. Inicio del mensaje reenviado: > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Fecha: 1 de mayo de 2015, 3:03:54 PM PDT > Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > Cc: "Sidley ICANN CCWG \(sidleyicannccwg(a)sidley.com\)" <sidleyicannccwg(a)sidley.com>, ICANN-Adler <ICANN(a)adlercolvin.com> > Asunto: [Acct-Legal] Revised memo on Unincorporated Associations, with sample Articles of Association attached > Responder a: ccwg-accountability5(a)icann.org > > Dear Legal Sub-team: > > We attach a revised version of the unincorporated associations memo from April 23, 2015, which now has a description of the proposed uses of unincorporated associations in ICANN’s governance structure, and 2 new questions received since April 23, as well as some clarifying edits to prior answers to questions. We hope this is useful for the upcoming call, and perhaps as an annex to the CCWG Draft Proposal. A redline against the April 23 version will be provided shortly. > > Rosemary > > Rosemary E. Fei > Adler & Colvin > 235 Montgomery Street, Suite 1220 > San Francisco, CA 94104 > 415/421-7555 (phone) > 415/421-0712 (fax) > rfei(a)adlercolvin.com > www.adlercolvin.com > > > Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability5

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Re: [CCWG-ACCT] XPLANE - comments please
by Roelof Meijer May 1, 2015

May 1, 2015

Hi Adam, Great work, the general concept and most of the content is really good. If we add it to our report, I expect it will really help readers to grasp the essence of what we are proposing quickly. Some remarks: I take it that the graphics will be expanded to cover all the essential changes we propose (bylaws, reconsideration process) The slide ³Approve changes to fundamental bylaws² still needs editing. How it works it NOT that AC/SO object to the change. ICANN proposes a change and the ³empowered community² approves or not The slide ³Recalling individual board members also needs editing. The ³who can initiate a petition² is only proposed for recall of NomCom appointees. The way it is placed now, suggests it would also apply for SO and AC appointees Best, Roelof On 01-05-15 06:23, "Adam Peake" <adam.peake(a)icann.org> wrote: >Hi everyone, > >XPLANE are working to improve the graphics you saw on the call and would >appreciate any feedback. > >Any corrections, comments or ideas on how best to display the board >removal/recall? > >The IRP has been mentioned as the "crown jewels" of the CCWG's work - are >the graphics a good representation of what the group is proposing? > >Thank you, > >Adam > > >

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Re: [CCWG-ACCT] V10 DRAFT for your review by 2 May at 01:00 UTC
by Roelof Meijer May 1, 2015

May 1, 2015

Dear all, In my opinion, as a first report to the community, this is a result we can (and should) be proud of. My deep respect to those who managed to incorporate all the changes and improvements over the last week. If we enrich the document with the work of XPLANE (covering all essential changes we propose), I am sure we will get high-quality feed-back from the community. I have only one comment, it is in my previous email, regarding the text in the executive summary and the body of the document on how the SO’s and AC’s would become unincorporated associations. Best, Roelof From: Grace Abuhamad <grace.abuhamad(a)icann.org<mailto:grace.abuhamad@icann.org>> Date: vrijdag 1 mei 2015 03:23 To: Accountability Cross Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] V10 DRAFT for your review by 2 May at 01:00 UTC Dear all, Here attached is the CCWG-Accountability Draft Report V10. I have attached a redline and a clean version (in Word and PDF). Version 10 incorporates the following: * Changes from the CCWG-Accountability call on Thursday 30 April at 05:00 UTC * Edits from legal counsel (Sidley and Adler) * Approval from the CWG-Stewardship Chairs/Client Committee regarding incorporation of CWG-Stewardship recommendations * Edits from Chairs and Rapporteurs Please send your edits, comments, etc to the mailing list bySaturday 2 May 01:00 UTC (24h from now). Staff will incorporate the edits over the weekend so as to release a final version for Public Comment on Monday, 4 May. If possible, edits are appreciate in track changes in the clean version so that they are clearly marked and visible. There will be professional formatting and copyediting done before publication, so we suggest that your time my be best spent by focusing on the substance-related edits. Also, please remember to submit your feedback regarding the XPlane graphics by Saturday as well. Adam will send a reminder re: XPlane. Almost there! — Grace

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Re: [CCWG-ACCT] [CWG-Stewardship] Fwd: Ominous update on the IANA transition
by Seun Ojedeji May 1, 2015

May 1, 2015

Forwarding this response from ICANN staff on this subject matter, with the hope that it provides some clarity Cheers! On Fri, May 1, 2015 at 4:10 PM, Theresa Swinehart < theresa.swinehart(a)icann.org> wrote: > Hi Andrew, > > Thank you for the statement, and agree it's an important piece to read. To > add to this, we are raising concerns because suggested new text to the > language raise a legal issue for us under the existing contract ICANN has > with NTIA. This is hopefully temporary as the NTIA contract eventually > expires. In fact, this case is an excellent example of a reason why the > transition is so essential. We have no desire to affect the results of the > community processes. We also believe that it would be more appropriate to > maintain the status quo until the conclusion of the transition process to > not pre-empt or create a perception of pre-empting any of the community > consensus process around any areas in the finalization of the transition. > > Theresa > > > > > On 4/30/15 3:51 PM, "Andrew Sullivan" <ajs(a)anvilwalrusden.com> wrote: > > >Hi, > > > >I encourage those who are interested in this go and read the message > >exactly as it was posted, and not a summary from someone else. The > >message is at > >http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html. > >It's not long. I encourage people to read it carefully, because it > >was written that way. I shall not say more than I said in that > >message, however. > > > >Best regards, > > > >A > > > >On Thu, Apr 30, 2015 at 10:29:30AM -0400, Greg Shatan wrote: > >> I am forwarding the email below, as it will be of interest to this > >>group as > >> well. It would also be of interest to hear the views of those who are > >> involved in the process (to the extent that is possible given ongoing > >> negotiations). > >> > >> Greg > >> ---------- Forwarded message ---------- > >> From: Edward Morris <egmorris1(a)toast.net> > >> Date: Thu, Apr 30, 2015 at 10:14 AM > >> Subject: [CCWG-ACCT] Ominous update on the IANA transition > >> To: Accountability Cross Community > >><accountability-cross-community(a)icann.org > >> > > >> > >> > >> Hi, > >> > >> I think this post on the NCSG list by Dr. Mueller might be of interest > >>to > >> those of us working on Accountability. > >> > >> Best, > >> > >> Ed Morris > >> > >> > >> > >> ---------- Forwarded message ---------- > >> From: Milton L Mueller <mueller(a)syr.edu> > >> Date: Thu, Apr 30, 2015 at 2:27 PM > >> Subject: Ominous update on the IANA transition > >> To: NCSG-DISCUSS(a)listserv.syr.edu > >> > >> > >> > >> > >> Dear NCSG: > >> > >> It¹s now official: ICANN doesn¹t even want to let the IETF have a > >>choice of > >> its IANA functions operator. > >> > >> > >> > >> Those of you who read my blog post on ICANN¹s interactions with the > >>numbers > >> community > >> > >>< > http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functio > >>ns-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/> > >> will already know that ICANN is refusing to accept the consensus of the > >> numbers community by recognizing its contractual right to terminate its > >> IANA functions operator agreement with ICANN. In that blog, I referred > >>to > >> second-hand reports that IETF was encountering similar problems with > >>ICANN. > >> Those reports are now public; the chairs of the IETF, IAB and IETF > >> Administrative Oversight Committee have sent a letter to their community > >> <http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html> > >> noting that ICANN is refusing to renew their supplemental service level > >> agreement because it includes new provisions designed to facilitate > >>change > >> in IANA functions operators should IETF become dissatisfied with ICANN. > >> > >> > >> > >> These are truly shocking moves, because in effect ICANN¹s legal staff is > >> telling both the numbers and the protocols communities that they will > >>not > >> accept the proposals for the IANA transition that they have developed as > >> part of the IANA Stewardship Coordination Group (ICG) process. In both > >> cases, the proposals were consensus proposals within the affected > >> communities, and were approved by the ICG as complete and conformant to > >>the > >> NTIA criteria. Thus, ICANN is in effect usurping the entire process, > >> setting itself (rather than ICG and NTIA) as the arbiter of what is an > >> acceptable transition proposal. > >> > >> > >> > >> The key point of conflict here seems to be the issue of whether ICANN > >>will > >> have a permanent monopoly on the provision of IANA functions, or whether > >> each of the affected communities names, numbers and protocols will > >>have > >> the right to choose the operator of their global registries. > >>Separability > >> is explicitly recognized by the Cross community working group on Names > >>as a > >> principle to guide the transition, and was also listed as a requirement > >>by > >> the CRISP team. And the IETF has had an agreement with ICANN giving them > >> separability since 2000 (RFC 2860 > >><https://tools.ietf.org/html/rfc2860>). > >> Yet despite the wishes of the community, ICANN seems to insist on a > >> monopoly and seems to be exploiting the transition process to get one. > >> > >> > >> > >> Of course, a severable contract for the IANA functions is the most > >> effective and important form of accountability. If the users of IANA are > >> locked in to a single provider, it is more difficult to keep the IANA > >> responsive, efficient and accountable. Given the implications of these > >> actions for the accountability CCWG, I hope someone on that list will > >> forward this message to their list, if someone has not noted this event > >> already. > >> > >> > >> > >> Milton L Mueller > >> > >> Laura J. and L. Douglas Meredith Professor > >> > >> Syracuse University School of Information Studies > >> > >> http://faculty.ischool.syr.edu/mueller/ > >> > >> Internet Governance Project > >> > >> http://internetgovernance.org > >> > >> > >> > >> > >> _______________________________________________ > >> Accountability-Cross-Community mailing list > >> Accountability-Cross-Community(a)icann.org > >> https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > >> _______________________________________________ > >> CWG-Stewardship mailing list > >> CWG-Stewardship(a)icann.org > >> https://mm.icann.org/mailman/listinfo/cwg-stewardship > > > > > >-- > >Andrew Sullivan > >ajs(a)anvilwalrusden.com > >_______________________________________________ > >CWG-Stewardship mailing list > >CWG-Stewardship(a)icann.org > >https://mm.icann.org/mailman/listinfo/cwg-stewardship > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > > -- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji(a)fuoye.edu.ng <seun.ojedeji(a)fuoye.edu.ng>* The key to understanding is humility - my view !

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Re: [CCWG-ACCT] [Info] "Controlling Internet infrastructure"
by David Post May 1, 2015

May 1, 2015

All [Apologies for cross-posting to the various lists] Danielle Kehl and I have just published a background paper on the IANA transition for the Open Technology Institute - <http://www.newamerica.org/oti/controlling-internet-infrastructure/>http://www.newamerica.org/oti/controlling-internet-infrastructure/ There probably isn't a great deal in there that those of you who are already participants on this list are unfamiliar with. The target audience comprises those people who have not been following DNS policy matters and who know nothing or next-to-nothing about ICANN, or IANA, or the DNS. We hope we've filled a gap in the existing writings on the subject, something that can help someone who is completely unfamiliar with the territory to understand just what is going on with the IANA transition, and why it matters as much as we think it does for the Internet going forward -- Needless to say, please feel free to re-circulate to anyone you think might find it useful - even your local Congressperson! And comments etc. are always welcome - There will be a second piece coming out shortly that will dive more deeply into the specifics of the various proposals now under consideration, with particular attention on the "accountability" discussions - Regards, David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com ******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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[Acct-Legal] Help with glossary definitions
by Roelof Meijer May 1, 2015

May 1, 2015

As I cannot post to the legal subteam’s list, allow me to do this way. I consider my reading of the text below to be some kind of a test of it not being “too legalistic” and “in very plain and simple language so that anyone without legal background can understand what we mean when using the terms”. To me it looks okay except for the use of “a person” at the start of each definition. I suspect that most non-legal people would understand “a person” to mean a human individual, which –if I understand correctly- is not what is exclusively meant here. In the definition of designator, I suggest to change to “(legal) person”, as a designator can be a legal person (an individual or an entity recognized under law) or not (and it that case be for instance a group of persons like the NomCom) In the definition of member, I suggest to change to “legal person”, as counsel states clearly that members must be exactly that. Best, Roelof Meijer From: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>> Reply-To: "ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>> Date: donderdag 30 april 2015 09:46 To: "'ccwg-accountability5(a)icann.org<mailto:'ccwg-accountability5(a)icann.org>'" <ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>> Subject: Re: [Acct-Legal] Help with glossary definitions Leon, I'm not sure we've achieved definitions that are short and simple enough, but perhaps the group can decide what it thinks is less relevant to cut out. Designator: A person who is given the power in the Articles of Incorporation and/or Bylaws to fill one or more seats on the Board of Directors. Generally, a designator also has the right to remove the directors it designated with or without cause. Designated directors cannot be removed by the Board or members without the designator's consent. Designators may also be given the right through the Articles or Bylaws to consent to any changes in those governing documents. California corporate law is unclear whether a designator must be a legal person (an individual or entity that is recognized under law such as a corporation or an unincorporated association); however, unless a designator is a legal person, it will not be able to enforce any rights in court. Member: A person who under the Articles of Incorporation and/or Bylaws of a nonprofit corporation has the right to vote to elect one or more directors. Members have extensive rights and protections under California corporate law, including the collective rights to amend the Bylaws, approve any amendment to the Articles of Incorporation, and approve the disposition of substantially all the corporation's assets or any merger or dissolution; the class right to remove directors they elected; and the individual right to inspect certain corporate records. In addition to the rights members have under law, the law permits the Articles and Bylaws to specify additional corporate governance rights that may or must be exercised by the members. Members may be divided into classes with different voting and other rights. Members must be legal persons, and they have standing to enforce their rights. Rosemary -----Original Message----- From: ccwg-accountability5-bounces(a)icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam Sent: Wednesday, April 29, 2015 2:11 PM To: ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org> Subject: Re: [Acct-Legal] Help with glossary definitions Will do, Leon. Rosemary and I will confer and provide something that is not too legalistic. Holly HOLLY J. GREGORY Partner Sidley Austin LLP +1.212.839.5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> -----Original Message----- From: ccwg-accountability5-bounces(a)icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam Sent: Wednesday, April 29, 2015 5:05 PM To: ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Help with glossary definitions Dear Holly and Rosemary, Could you please help us with the definitions for “Designator” and “Member” so that we can include them in the Glossary of our public comment document? Needless to say that we need a two sentence definition in very plain and simple language so that anyone without legal background can understand what we mean when using the terms. Thanks as usual. Best regards, León _______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5(a)icann.org<mailto:Ccwg-accountability5@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 **************************************************************************************************** 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

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

May 1, 2015

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

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

May 1, 2015

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

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XPLANE - comments please
by Adam Peake May 1, 2015

May 1, 2015

Hi everyone, XPLANE are working to improve the graphics you saw on the call and would appreciate any feedback. Any corrections, comments or ideas on how best to display the board removal/recall? The IRP has been mentioned as the "crown jewels" of the CCWG's work - are the graphics a good representation of what the group is proposing? Thank you, Adam

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Regarding mailing list discussions about the existing MOU between the IETF and ICANN with respect to the IANA functions
by Bruce Tonkin May 1, 2015

May 1, 2015

Hello Steve DelBianco, In response to your post on the subject of the IANA transition. The MOU between ICANN and the IETF dated 1 March 200 with respect to the IANA functions already includes a termination clause. From: https://www.icann.org/resources/unthemed-pages/ietf-icann-mou-2000-03-01-en " This MOU will remain in effect until either modified or cancelled by mutual consent of the Internet Engineering Task Force and the Internet Corporation for Assigned Names and Numbers, or cancelled by either party with at least six (6) months notice" There is no refusal to continue to provide services to the IETF under the current arrangements. There is a supplemental agreement between ICANN and the IETF that defines the commitments, services, and tasks ICANN undertakes to fulfil the IANA services on behalf of the IETF: http://iaoc.ietf.org/documents/2014-ICANN-IETF-MoU-Supplemental-Agreement-E… This agreement is subject to annual review. My understanding is that the IETF has asked to incorporate some changes as they relate to termination following the discussions within the IETF on the IANA transition. The ICANN staff feel that some of the changes are in conflict with the current agreement been ICANN and NTIA, and should happen after the NTIA has considered the final proposals from the community. I think there are two scenarios after the NTIA considers the community proposals: (1) The NTIA agrees to transfer stewardship to the community - and we start working on the various legal arrangements to support that (2) The NTIA wants to retain stewardship – in which case we may request changes to the NTIA contract based on the community proposals and then adjust existing arrangements accordingly As far as I am aware – the response so far has been to wait until the process is complete, before changing legal arrangements. In terms of operational improvements – they should continue to be improved based on feedback from the users under the current arrangements, and these improvements could be incorporated into the supplemental agreement. The bottom line is that ICANN will continue to provide and improve its services to the IETF as it has for the past 15 years, and if the IETF is unhappy they already have the right to terminate with 6 months notice. There seems to be confusion between the annual process to update the existing supplementary agreement between ICANN and the IETF - with the overall IANA stewardship transition process. Regards, Bruce Tonkin

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