June 2015 - Accountability-Cross-Community

member organization and single membership structure
by Roelof Meijer July 10, 2015

July 10, 2015

From: Roelof Meijer <roelof.meijer(a)sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 14:16 To: Mathieu Weill <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>>, "accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>" <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>>, Thomas Rickert <rickert(a)anwaelte.de<mailto:rickert@anwaelte.de>>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>> Subject: member organization and single membership structure Dear co-chairs, all, Two points: 1) I stopped my participation in yesterday night’s (my time) CCWG call somewhere halfway agenda item “5. Legal advice”. Mainly because I think we’re wasting so much precious time with the discussion on and comparison of two models, of which one should have been written off sometime back. My earlier emails copied below should provide more information on my rationale, but should also serve as formal input into the process. 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off. So, co-chairs: what is happening here or what have I missed? Best, Roelof On Fri, Apr 17, 2015 at 11:10 AM, Roelof Meijer <Roelof.Meijer(a)sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Dear Jordan, all, I couldn’t attend the call, so I probably missed something. But how did we end up with the two law firms we hire stating: „On balance, “member” organization provides the clearest path for the ICANN community to exercise the mechanisms and powers under consideration. „ and our rapporteur concluding: "Following the CCWG meeting on 10 April, the rapporteur had assumed there would be clarity regarding the proposed mechanism. This has not occurred„ Best, Roelof On Sun, Apr 19, 2015 at 12:25 PM, Roelof Meijer <Roelof.Meijer(a)sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Greg, Jordan, What I fail to understand is that -because we do not have the expertise „in house”- we hire two firms that are experts in this field, they give us their shared opinion and we do not follow that. It seems to me that this is one of those things that makes this whole process sometimes so slow and incredibly time consuming. Do not misunderstand me, I respect the legal experts we have in the CCWG. But we pay (ICANN pays, so the internet community pays) dearly for this advice, they are both renown firms that we took quite some time to select. Why not accept the outcome and move forward, spending our precious time on all the work that still has to be done? Best, Roelof On Mon, Apr 20, 2015 at 11:04 AM, Roelof Meijer <Roelof.Meijer(a)sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Greg, Thanks for that. Still, if I look at the difference in "amount of boxes ticked" in the part „summary of desired powers” of the slide deck of 14 April prepared by counsel, I see no point in continuing to evaluate counsel’s advice re designators. Maybe you can help me out on another point though. In their memorandum/legal assessment of April 10, Sidley and Adler & Colvin mentioned the possibility of a „sole membership” structure. Meaning –as far as I understood it- that not every AC and every SO would become a member (and thus would have to become a legal entity), but the group of representatives of the SO’s and AC’s would form a single legal entity and would become ICANN’s sole member. I have sent several emails to this list suggesting we follow this up as one of the serious possibilities, without –as far as I am aware- any effect. Do you have any idea what happened to this particular part of counsel’s advice? Best, Roelof Groet, Roelof

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #38 - 30 June 2015
by Kimberly Carlson June 30, 2015

June 30, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT Meeting #38 - 30 June will be available here: https://community.icann.org/pages/viewpage.action?pageId=53782440 A copy of the notes and action items may be found below. Thank you Best regards, Kim ACTION Items ACTION ITEM: Review emerging issues and papers circulated by Mathieu ACTION ITEM: Staff to double-check on scheduling of meetings and inform group of next calls before Paris meeting ACTION ITEM: Cochairs to provide clearer view of how each of these items relate to CWG requirements, provide more substance, share with Kavouss, interact, and provide update to group during call #39 ACTION ITEMS: Circulate a WP3 call for voluneers, set up mailing list and provide required support to get to a point where have proposals for discussion in Paris. ACTION ITEM: Jordan Carter/WP1 to come back to group with clear specifications by next week for drafting to be handed over to lawyers. ACTION ITEM: Amend draft letter to plug in timeline and leave it up to NTIA to decide whether extend contract to a certain date or not. ACTION ITEM Steve del Bianco to wordsmith letter ACTION ITEM: Mathieu to draft cover letter that captures comments for PC organizer ACTION ITEM: Sam to look at Board questions, identify most relevant ones and answer them Notes Welcome, Roll-Call, SOI Roelof Meijer and Alice Munyua are on the phone only Please fill in your SOI. - No time to conduct early review of models. Outline of membership problems would be useful. --> We are not reviewing models on this call - it is a reference to an action item. Action items from Buenos Aires 1. Lawyers have been tasked to review both empowered SO/AC membership model and empowered SO/AC designator model to inform our Paris discussions. We will be having a thorough discussion in Paris so we can flesh out details. 2 Establish WP to address emerging issues Leon will be work party Chair. Alan Greenberg has volunteered for this effort and we are seeking more volunteers. ACTION ITEM: Review emerging issues and papers circulated by Mathieu 3 Rapporteurs to identify areas which are not dependent on model so we can advance on work that needs to be done regardless of the model. 4. CCWG to coordinate with CWG to respond to NTIA letter. This will discussed in today's AOB. 5 Flowchart has been distributed - it assesses Bylaw drafting process. We are willing to shorten it. 6. WPs to make sure all comments are addressed no later than PC2 publication 7. Rapporteurs to coordinate work in WPs - Which Bylaws? We have not agreed on models/IRP Bylaws. We first need to meet CWG requirements that were sent to the ICG. --> We need to discuss where we are to discuss when we want to go. This is planning. CCWG Scorecard - Our departure is the report we filed for comment. We are now reconsidering certain aspects of model based on comments received. Let's not start from scratch. Goal of scorecard is to check where we are based on initial report and the feedback received and determine which items need to be further investigated. Mission: comments made on balancing core sections and there is disagreement on private sector wording. Governments raised concerns. Rest of issues were highlighted in BA session. Fundamental Bylaws: support except for disagreement about HQs in US should be fundamental Bylaws. That may be pushed to WS2. IRP: feedback about constructive engagement proposals, about process, type of arbitration and comments on number aspects that need refinement. Overall process is supported but point of discussion on CoI for Board members. On community powers: there is a discussion on model but one point among many. Various powers need some refinement such as need for strategy veto does not create endless loops. How caretaker mechanism would work out if Board recall. AoC reviews are supported and that is a CWG requirement. Feedback to add and refine new stress tests. Staff accountability, diversity enhancements, Board responsibilities are new issues. We will start with initial report we have and edit it. Scorecard is designed to track work towards PC2. - As ICG liaison, we have to finalize assessment of three proposals and ensure accountability is properly assessed by CCWG. It is an important element in order for our proposal to go to NTIA. How can we ensure accountability is properly addressed without difficulty? One suggestion: take budget and put it directly in Bylaws. These are the most urgent issues. - What are we trying to accomplish by Paris and what are we deferring to Paris? Most contentious issues we need to work on. Too many conference calls before we leave. --> Rapporteurs are already working on building agendas scheduling their calls. We have issues that need to be considered before first meeting. Suggestion would be to begin discussing issues that are apparently issues to take on. Based on compromises in BA, we set out issues that different stakeholders have in mind. Rapporteurs will be reaching out to WPs. - 14 July meeting was rescheduled. - If you read invite carefully - it is specified that old hour was changed to new hour. ACTION ITEM: Staff to double-check on scheduling of meetings and inform group of next calls before Paris meeting - What are the priorities we need to address first in the CCWG scorecard? Shortcoming is membership. Why do need to go further into budget plan etc. Important issue is to address accountability. Consider difficulties in membership - We have a list of requirements from CWG. All these items in scorecard need to be fulfilled if we want to meet requirements. Without IRP, budget powers, Board removal etc, there is no meeting these requirements. We were informed of CWG requirements and community expectations that clearly say we need a consistent accountability framework. Some of these items still need work. What are the items we neet to drop in this scorecard? --> State which items are CWG and give them priority. - Suggestion to take this offline ACTION ITEM: Cochairs to provide clearer view of how each of these items relate to CWG requirements, provide more substance, share with Kavouss, interact, and provide update to group during call #39 WP3 An item that was concluded in Buenos Aires. We received a number of comments during PC asking us to consider a set of issues that were not outlined in PC1. These issues include staff management accountability, who watches watchers, diversity and Board duties. Timing is of essence. We recognized that those concerns were valid. We need a small group to determine what would be our recommendations with a need to sort out what is WS1 and what isn't. Core essence of group will be to try to find what needs to be work stream 1: mechanism that will provide community with confidence that any further mechanism would further enhance ICANN's accoutability. See whether we need somehing in WS1. - Who watches the watchers is opening pandora box. It will create difficulties. In some SO/ACs, there is no mechanism to watch. GAC e.g. represent governements, there is no watch, they are responsible to governements. --> This point has been raised from start by Advisors and Charter states that group has requirement to consider Advisors' input. There is more than our report shows on accountability for SO/ACs. They are subject to regular reviews (except GAC). They have transparency requirements and operating rules. We need to be able to explain how this community mechanism is accountable because the model we are creating is a mutual accountability model. - Do we need to assume the ability for community to generate a Bylaws changes proposal post transition and what mechanisms do we need to fulfill that. - Mechanism currently proposed for WS2 is a transitional article for Bylaws that recognizes that further changes to Bylaws will be considered to address a number of issues. - Who watches watchers ia misstatement. We have established core values we believe the organization should hold to and have established IRP. Ultimately the community is the guardian. It provides important mechanisms by which watchers watches himself. We are repeatedly focusing on WP1 and are failing to focus on WP2 because that is no a controversial area. It is leading in error in discussions. Remember the importance of what was achieve in WP2. - Determine what needs to be included in WS1, if necessary. Key point is to ensure we launch WP3 and task group to come back by July 14 with proposals we can discuss in Paris. Volunteers: Alan, Leon, Greg, Giovanni, Avri, Keith ACTION ITEMS: Circulate a WP3 call for voluneers, set up mailing list and provide required support to get to a point where have proposals for discussion in Paris. - Board duties was raised by Larry Strickling. Feeling there is a need to clarify what is expected from Board and what fiduciary duties refer to to avoid any confusion. Bylaws Drafting Process Approach from Bruce Tonkin was refined . We have to find common grounds. Approval and decisions when kicking off Bylaws changes and moving to public comment are requirements on CCWG side. The view of independent counsel on Bylaws changes was a CCWG requirement but Board was bound to ask for ICANN legal views. It is a collaborative effort and drafting effort based on specifications. Specifications are based on public comment report. CCWG clarifies that can move forward with Bylaws drafting once it is ready. Drafting and refining is by ICANN legal in collaboration with counsel. CCWG subgroups would review language to make sure it meets the specs. We will turn to counsel to get advice on whether can proceed with changes. Full CCWG consulted in case of conflicts of interpretation. Incorporate AoC reviews into Bylaws would be candidate for Bylaws drafting process. - CCWG drafting bylaws makes me pause. First draft by lawyers. ICANN legal should draft bylaws. When it comes to operate let's leave it to those who can do so. - This is not going to be collaboration. We need to look to our counsel for legal advice on how that works - There is no intention that our group drafts initial bylaws. Bylaws drafting is legal matter. In favor of independent counsel to draft initial Bylaws. Second choice is having ICANN. - ICANN attorneys have to sign off on them. Why don't we trust counsel to identify where there is a problem. It is up to CCWG to tell ICANN legal that we do not believe Bylaws are acceptable. We have ultimate approval on this proposal. Should we trust lawyers that words are good. - We need to make sure we manage our counsel cost effectively. Appropriate management of lawyers. This is not time to cut corners. - Important to have independent counsel to do drafting Bylaws. Fine for ICANN to review. If ICANN lawyers do drafting, we are always going to be reactive mode and having to argue and convince why we need language change. It should be our lawyers representing our interests. ICANN legal can convince us. Other way our own independent counsel holds pen. - We are going to be very clear about what should happen. It should not be negotiations. It is more cost effective to have ICANN do initial draft and our lawyers to comb through changes. - Bringing AoC review into Bylaws - 11 pages of comments - can we finalize specs or do we need to keep debate alive? - Suggestion to have a a dialogue with ICANN legal and client. Come to terms on fundamental terms while drafting documents is way to draft key issues. key issues are better left at first level. - Discussion has proceeded as though clear between expressive work as to what we would like to achieve and alien world as to text that would need to be implemented that we could not engage with ourselves. Laywers have magical ability to turn into language. There is too much deference. We will need to keep close eyes on item. We are not working from huge degree of consensus. Have our own lawyers achieve what we are trying to achieve vs. ICANN lawyers - Involvement in WPs subgroups: clarify what specifications are. It is what matters in this process more than holding the pen. We need to set expectations right. - It needs to be a collaborative process. - Proposed way forward: we need to be clear on specifications - it is the key success factor. We need to kick it off the ground. Suggestion would be to take section of report on AoC reviews which is well advanced in terms of clarification of specifications. We would then test system where ICANN legal holds pen and based on experience it will be easier to determine whether this works out. This creates right incentive. It will be a first data point. ACTION ITEM: Jordan Carter/WP1 to come back to group with clear specifications by next week for drafting to be handed over to lawyers. AOB Reply to NTIA lawyer: incorporate different comments received, send to COs and vote approval by Dublin. It also touches on implementation issues and timeline we can foresee. - It should mention what plan is. ACTION ITEM: Amend draft letter to plug in timeline and leave it up to NTIA to decide whether extend contract to a certain date or not. ACTION ITEM Steve del Bianco to wordsmith letter. We were informed that a public comment period is running on reviews. This has triggered debate. Suggestion would be to capture exchanges we have had on list and recap them as contribution to public comment showing there are diverse views on how to proceed with reviews in light of our upcoming recommendations. ACTION ITEM: Mathieu to draft cover letter that captures comments for PC organizer Do we have plan in place to respond to questions to Board or at least incorporate them in follow on work. --> we did not formally assess how we would respond. #1 - many of questions are already taken on Board while discussing model. Questions have been transferred to external independent counsel model can rely on. It was suggested that it could be useful if Sam could start looking at the questions and point out most relevant ones and answering them. ACTION ITEM: Sam to look at Board questions, identify most relevant ones and answer them. Concluding remarks We are aware of work ahead of us - focused on priorities - glad we didn't spend time on model. There will be a number of good discussions in Paris - our goal is that this discussion takes place on informed papers we have all read so that we can make discussions in reasonably informed manner. We need legal advisors to come up with clear descriptions of model

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CCWG ACCT Call on 14 July
by Kimberly Carlson June 30, 2015

June 30, 2015

Dear All, The call on 14 July was originally scheduled at 19:00 UTC. It was later moved to 12:00 UTC, after it was brought to our attention, some of you may be traveling by then. There was not an additional call, only the time of the original call was moved. Sorry for any misunderstanding. Best Regards, Kim Carlson

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Documents related to Board Governance
by Bruce Tonkin June 30, 2015

June 30, 2015

Hello All, Following the ATRT1 process for reviewing Board accountability, some work was done to summarizes the current requirements for Board governance in 2012. The key documents include: Board Governance Guidelines: https://www.icann.org/resources/pages/guidelines-2012-05-15-en Board Code of Conduct: https://www.icann.org/resources/pages/code-of-conduct-2012-05-15-en Board conflict of interest policy: https://www.icann.org/resources/pages/governance/coi-en Regards, Bruce Tonkin

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DRAFT call for expressions of interest for the forming the omnibus standing panel as part of the Independent Review Process
by Bruce Tonkin June 30, 2015

June 30, 2015

Hello All, As discussed at the Singapore meeting of ICANN and also mentioned at the ICANN meeting in Buenos Aires, the Board Governance Committee plans to kick off populating the omnibus standing panel for the independent review panel as described in the current bylaws at: From: https://www.icann.org/resources/pages/governance/bylaws-en/#IV "There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work from which each specific IRP Panel shall be selected. - The panelists shall serve for terms that are staggered to allow for continued review of the size of the panel and the range of expertise. - A Chair of the standing panel shall be appointed for a term not to exceed three years. - Individuals holding an official position or office within the ICANN structure are not eligible to serve on the standing panel. - In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding. - All IRP proceedings shall be administered by an international dispute resolution provider appointed from time to time by ICANN ("the IRP Provider"). The membership of the standing panel shall be coordinated by the IRP Provider subject to approval by ICANN." I have worked with the ICANN legal team and the Board Governance Committee to put together a DRAFT expression of interest. The document references the current bylaws, and also flags the likely changes to the process based on the draft document the CCWG put out for public comment. This includes noting that in future the decisions of the IRP panel are likely to be binding. This will allow us to get a standing panel in place, which will follow any current and new bylaws with respect to the IRP process. I would welcome feedback on this document from the CCWG before we initiate the call for expressions of interest. Regards, Bruce Tonkin

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Regarding bylaws drafting
by Bruce Tonkin June 30, 2015

June 30, 2015

Hello All, Just following up on my comments during the CCWG session this afternoon on the drafting process. I recommend considering the following approach: - Identify a sub-team of the CCWG to write a short brief for each bylaws change required - including any draft text that has been developed so far - Get the CCWG external council to confirm that the brief is achievable and is consistent with their earlier advice - Get the ICANN legal team to draft bylaws changes consistent with the brief - the CCWG sub-team confirms that the language meets the brief - where necessary (e.g. if the CCWG sub team does not believe that the draft meets the requirements) get the CCWG external council to confirm that the draft is consistent with the objectives of the brief (use this last step when necessary as we are using public funds to pay for the extra advice and we should be prudent with expenditure) - once the CCWG sub team is happy with the text - it should be reviewed by the whole CCWG, before posting for public comment For example, you could write a short brief on the changes required to incorporate the AoC reviews. This could include simply a cut and paste of the relevant AoC text - along with any tweeks agreed within the CCWG - maybe changing the proposed timing of reviews, or perhaps the membership of the review team etc. - ICANN legal can then draft language for the bylaws that is consistent across the whole bylaws document Regards, Bruce Tonkin -

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AGENDA - Call #38 - 30 June
by Alice Jansen June 30, 2015

June 30, 2015

Dear all, Below you will find a proposed agenda in preparation for your call #3<https://community.icann.org/pages/viewpage.action?pageId=53782440>8<https://community.icann.org/pages/viewpage.action?pageId=53782440> - Tuesday, 30 June - 06:00 - 08:00 UTC (time converter here<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>): 1. Welcome, Roll Call & SoI 2. Action items from Buenos Aires <https://community.icann.org/pages/viewpage.action?pageId=53776811> (see below) * Independent counsel will review both the empowered SO/AC membership model and the empowered SO/AC designator model in order to inform the discussion that will take place in Paris; * Take into account the drastic constraints on timeline and the requirement for minimal changes, a work party will be constituted to address the "emerging" issues outlined in the "discussion starters" papers; * Rapporteurs to organize work on WP1 & WP2 issues that need further discussion and are not dependent on the Model discussion; * CoChairs to coordinate with ICG and CWG to prepare a response to the NTIA letter; * Bylaw drafting process to be discussed on the list and considered at the next CCWG meeting; * WPs to make sure all comments in the public comment tool have responses for publication, no later than publication of PC2; * Rapporteurs to coordinate work in respective WPs. 3. Review of CCWG scorecard<https://docs.google.com/spreadsheets/d/1HcUUDn5DHSVo7lLo-FWU_QMa8PGgfZWTP_k…> (see attached) 4. Emerging issues : WP3 terms of reference, scoping & call for volunteers (see attached) 5. Bylaw drafting process (see attached) 6. A.O.B 7. Closing remarks Thanks Best regards Alice

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Re: [CCWG-ACCT] Fwd: Re: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
by Sabine.Meyer＠bmwi.bund.de June 30, 2015

June 30, 2015

Dear Mathieu, dear all, I looked at the updated memo comparing the different community empowerment models on the flight back from Buenos Aires and just wondered whether I missed (or simply misunderstood) something during our third BA working session comparing the empowered SO/AC membership resp. designator model. I had taken away from that working session the impression that the designator model might give us (in principle) all necessary community powers. But checking back with the chart in annex A of the attached legal memo I’m not quite so sure. In the very bottom of the chart the memo looks at the power to bind the board to implement IANA Function Review Recommendations (CWG dependency) and states that in a designator model only a reconsideration right would be viable but with limits on how often this could be done and not being ultimately binding. An approval and reconsideration right would only be viable in a membership model. Wouldn’t this CWG dependency influence our choice of model? Or this there another way to “solve” this dependency that I have simply missed? Best regards, Sabine Von: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 17. Juni 2015 09:11 An: accountability-cross-community(a)icann.org Cc: Holly Gregory; Rosemary E. Fei; Hofheimer, Joshua T. Betreff: [CCWG-ACCT] Fwd: Re: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Colleagues, Attached is the updated memo from Sidley on the viability of the various powers in each model under study. The package of documents for the F2F meeting will be updated accordingly. Best Mathieu -------- Message transféré -------- Sujet : Re: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Date : Tue, 16 Jun 2015 18:12:09 +0000 De : Hofheimer, Joshua T. <jhofheimer(a)sidley.com><mailto:jhofheimer@sidley.com> Pour : 'ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>' <ccwg-accountability5(a)icann.org><mailto:ccwg-accountability5@icann.org> Copie à : Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com><mailto:sidleyicannccwg@sidley.com>, 'ICANN-Adler' <ICANN(a)adlercolvin.com><mailto:ICANN@adlercolvin.com> Dear Legal Sub-Team, Attached is revised draft of the memo submitted in the prior email describing the viability of the enumerated powers under the three models â€“ Member model, Designator model and â€œVoluntary Collaborationâ€ model (name of third model not settled). This memo responds to questions that came in from the CCWG upon reviewing the prior document. For your convenience, a clean and redline against the June 10 memo are attached. Thank you, Josh JOSHUA HOFHEIMER Partner Sidley Austin LLP +1.213.896.6061 jhofheimer(a)sidley.com<mailto:jhofheimer@sidley.com> From: Hofheimer, Joshua T. Sent: Wednesday, June 10, 2015 9:10 PM To: ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG; ICANN-Adler Subject: Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models â€“ Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. 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/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces(a)icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton(a)sidley.com<mailto:thilton@sidley.com> www.sidley.com<http://www.sidley.com> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<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. ****************************************************************************************************

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Meetings
by Alan Greenberg June 29, 2015

June 29, 2015

There is a meeting tonight (in the middle of what would have been my 2nd decent night's sleep in two weeks, I should add). A few days ago I received invitations to meetings on July 7 and 14. Today I received an invitation for a 2nd meeting on the 14th. Several points: - none of the July meetings are mentioned on the wiki. - having just given up 11 consecutive days to ICANN, and expecting to give up 4-5 days for the Paris meeting, I would like some clarity and advance notice of when ALL the other CCWG meetings will be over the next two weeks. - I note that asking for 4 hours on the day before many of us will have to leave for Paris is just a bit much. A few of us do have other demands on our time other than ICANN. Alan

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Notes-Recordings-Transcript links for ICANN 53 CCWG-ACCT Working Session 3 - 25 June
by Kimberly Carlson June 29, 2015

June 29, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT Working Session 3 / ICANN 53 - 25 June will be available here: https://community.icann.org/display/acctcrosscomm/CCWG-ACCT+Working+Session… A copy of the notes and action items may be found below. Thank you Best regards, Kim Notes CCWG-Accountability Working Session 3 -- 25 June 2015 1. Welcome, SoI, Roll Call 2. Discussion of refined accountability mechanism 3. Responding to NTIA letter 4. Concluding remarks Intense discussion yesterday, trying to recap this and the proposals on the table for us to consider. XPLANE have a visualization of yesterday's and last Friday's discussion. Discussion around requirements: the CWG, the budgets issues, the Board, about openness and the ability to adjust as the community evolves. And the notion of leverage if needs be. Concerns - esp to involve the courts as little as possible. While retaining our community powers. But we had problems. Stemming from there statutory rights of members and derivative actions. Legal complexities and formalities. And concern of capture by a SO/AC that obtained legal personhood first that might then capture ICANN. Community powers should go in the bylaws. We seem to have agreement on this. But how to actualize them. But there are even more rights that are available through statutory rights, that come with the members model. See the issues under the member model are complex, and some we wanted and some we didn't have on our radar and need some to way to limit those powers. Status quo. Work on the assumption we will keep the status quo, and that the community can exercise their powers based on the status quo. But, how, if a need for it, do we get from the status quo, to a different model with more powers. So where do we go in the hybrid model. Some consider that the dismissal of the board would be a sufficient remedy. Interventions yesterday, about budget issues for the IANA function being enshrined in the bylaws removes one of the weaknesses of the designator model. So we may have an empowered designator model. The model doesn't have all the nuances of the earlier designs. The graphics show a Community "power bar". Giving the designators the possibility to remove their director, and the collective ability to recall the board. Add the proposal to enshrine the IANA budget. If we need to go to court to have the board honor an IRP, then the relationship would have soured so much to reach that point they would have left. With the power bar approach, we don't have problems with derivative actions, no risk of capture. As we move from the voluntary model to the designator, the power can only be invoked by more than one SO and AC. Email from the RIR community hadn't expressed preference for any model, they believe we need to reach resolution as soon as possible and simply. Hear concern about enforceability. Taking a matter before a court is an extreme situation. Is this small possibility worth delaying the transition, and creating complexity and misunderstanding? Makes us recommend and push for the designator model. And consistent with the model just presented. At a phase in our WG where we must move forward, so ask what can be added to or removed. Enhance the proposal. First question for the meeting: does this describe what was presented yesterday - the table describes the community powers developed by WP1, but WP2 an important part of our work and WP2 needs legal remedies for its recommendations, for example, what could be done if IRP not implemented, this should be part of the analysis. Having heard that removal of the board, the nuclear option, as the only power, is unwise. Comments: Clarity. If the member model is off the table then say so. What is meant by hybrid? May need to re-think the thresholds, give clarity about participation of SO/AC that do not appoint a director The status quo, which is the working model, with transformation for designator model when some event triggers the need for greater authority. Statutory legal rights are needed. For example access to documents. Derivative actions: the right of members to sue ICANN to remedy a rogue board. Some have concerns with other statutory rights, some are supportive. The presentation gives a stark view of the member model and rosey view of designator. And the ultimate backstop of the designator model is still the courts. Hybrid. Staring point is what we have now and how to improve on this, and we are along the road to do that with IRP and reconsideration. There are already proposals before the board for document transparency from the ATRT process. Removal of the board is not so nuclear. And concern about capture is worse with member than designator. Statement from Counsel, June 16, says they are unsure if the designator needs to be legal persons, and need clarity on this. The good thing about the model is that the SO/AC are exercising the powers, until some eventually that necessitates legal measures. The second proposal should have the consensus of the group. NTIA requirement that must represent consensus of the community. All the models are good. But learning from the CWG approach won't work, they had more discussion of the issues first. Pragmatic. Take into account dependencies of CWG and make every effort before Paris to address them. e.g the budget of PTI. What else is absolutely necessary. Move the rest to WS2. And this approach is what we are trying to do. We are focusing on requirements and towards a consensus proposal. The member model is incomplete as a multi-stakeholder model if GAC cannot participate. We mention a rogue board, what about other rogue community members? Need to work toward a balanced model. Both models would work. And satisfy our requirements. But when I listen to the community I don't think the member model will be accepted. I think the designator model has a high chance of getting accepted. Now it's time to drop our personal ideas and listen to each-other. Agree with Avri that dismissing the board is not the end of the world. May never need to use the power of removing the board. Not acceptable to interrupt the speakers. Not acceptable to extend meetings on short notice. Not acceptable to tell members they are off topic. There was a basic consensus around the community powers. So now concerned that statutory legal rights as something we want, when they have not been discussed internally or with the community. As someone who has sought legal enforceability, recognize that there are degrees of accountability, and wish to move towards consensus. 3-4 weeks to revise our next proposal. Our powers and core values and AoC are well developed and the same for whichever model we choose. The other challenge is to reach agreement on authority/empowerment perhaps as a sub-group. Need to compromise, and not loose the window of opportunity. Use the opportunity between now and Paris to compromise. We would like to use this comparison, further refine it. Looking for external counsel for support on this. SWAT analysis - define the model, looks at strengths and weaknesses and also creates opportunities and threats. The models need to be fleshed out to have a fully informed discussion in Paris. And we all need to all work on grasping the subtleties between the models. And we will ask legal counsel to better flesh this out. We have drafting to do. We have substantial discussion to have about topics raised in public comment. Discussions needed of WS1 and WS2. And begin organizing this on our call next Tuesday. We have sufficient progress so we can go for legal advice. We have made good progress since arriving in BA. Responding to NTIA letter Letter from Larry Strickling asking about the timeline of CCWG work, noting unlikely to complete work before the end date of the NTIA/ICANN IANA functions contract. Also asked the ICG chairs. There are extension options available. Our timeline is a second draft for 2nd public comment of 40 days. A review of comments and if no major changes then will ask the Chartering organizations to review at the Dublin meeting. That is the goal. How much time do we need to finalize our proposals, and have them ready for implementation. We hear the other groups are aiming for June/September next year. We have been asked to factor in community accountability. Jan our Advisor has warned us on this. So work actively on this going forward. At least need to say how it will be addressed in WS2. Perhaps need to create a WP3 to begin thinking about this. In the reply - 2 assumptions, there's no magic to the date as NTIA and ICANN can mutually cancel. And that US Congress has kept away from arbitrary dates and requirements. A relatively short period of time after completed or work for the transition to go forward. Discretion, but within limits, L Strickling told us he needs 4 months, and don't slip by more than a year. Need to move the bar on stakeholder accountability, and also recall the recommendation about human rights in the bylaws. ICG is debating, and some request that they don't send until coordinated with the CCWG. We have to finalize our proposal to get it to SO/AC charter organization for Dublin. We will be crucified if we are not ready in Dublin. So let's not add new issues like community accountability. The CRISP team responsible for the numbers part of the ICG proposal is targeting Implementation is September of this year, not next year. Develop the models so we can have meaningful discussion in Paris. New topics to discuss, inc community accountability, they are critical, and we need to consider. We need volunteers to step up on this. WP1 and WP2 will have a great deal of work in the coming weeks. Co-chairs will coordinate response to NTIA Acknowledge Bruce's comments on the bylaws drafting. And will look at blocks that are ready, and the AoC incorporation will be first of these we think. Reconvene as early as Tuesday 30 June for CCWG call at 06:00 UTC We are making progress in surfacing underlying concerns. AoB Fiona - About the AoC reviews public comment. Need to move forward in synchronize with other work. In this review process they are looking at the future of reviews, the schedule and structure of them, both the organizational reviews of the bylaws and also the AoC reviews. Bring them in to our discussions about review mechanisms. Synchronize their contribution with the CCWG. Staff are cognizant of overlap of work and we are coordinating and the are following the CCWG work. A comment from from the CCWG to the review process would be helpful. Thank you all.

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