July 2015 - Accountability-Cross-Community

Notes-Recordings-Transcript links for WP1 Meeting #19 (13 July)
by Kimberly Carlson July 14, 2015

July 14, 2015

Hello all, The notes, recordings and transcripts for the WP1 Meeting #19 - 13 July will be available here: https://community.icann.org/x/86k0Aw A copy of the notes and action items may be found below. Thank you. Best regards, Kim ACTION Items Action item 2 for WP1, our work syncs with the reference model Notes Issues for today, with the standard bylaws, removal of individual directors. Overall 4 pieces for work. The work to be completed for the document freeze which is UTC 23:59 July 14. Izumi: Standard bylaws paper. Aren't many changes in the document. Change on the period of time for making the change, selecting from the options. Also, instead of 3Ž4 ratio, various comments suggested a lower ratio, suggesting 2/3, which is the same as the board's threshold for changing the bylaws. Added a limited to the number of times the community can change the bylaws, to two times. Steve: last change, what public comment support was there for this two-times? Just one suggestion, and no contradictions. But the rest were in favor. We need consistency throughout the document as to "reaching" the fraction or "greater than" - just consistency check during overall final editing of the proposal. Where does the number two come from? Prefer the original paragraph without limit. Izumi: Point taken: and revert to the original text. Change to the two-week text: suggest keeping this text as we discuss in Paris. Note the standard bylaw change will go through at least a 40-day public comment, and the following 2 weeks is not disruptive. But something to discuss and to make the overall process of the timing clear. No mandate for the 2 times limit. Izumi: revert to the original text as supported by most in the group. Greg: A little uneasy about the move from 3/4 to 2/3, but not enough to change it back. Suggestion, to be more specific: 2 weeks following the announcement of Board approval. Editing suggestion. Use calendar days, not weeks. Suggest 15 calendar days / 30 calendar days following board approval. And decide in Paris. Greg: indicative in the drafting of the formal bylaws. Look to the bylaws and how they count units of time. But follow the lead of the bylaws. Kavouss: agree with the change from 3/4 to 2/3 - it is consistent. (Note Izumi's email as forwarded by Jordan) Options for the Board's approval. 30 days. 60 days. Not later than 30 days after the end of the next ICANN meeting? CCWG with continue to explore and explain the membership structure. How can membership be maintained without due cost, complexity and liability? CCWG will consider mechanisms for considering impasse and possible delays. Especially if there is no limit on the number of times the community can limit the bylaws. Increase the participation on the SO/AC other than ccNSO and GAC? Kavouss. Hard to agree ccNSO is influenced and controlled by govt. Time frame, 15/30 Calendar days as Kavouss suggested. Some aspects will be dictated by the model. 3rd bullet, on considering procedural impasse: instead of considering as already solved, it will be considered later? It will be addresses as part of the time frame discussion in Paris. * Removal of individual directors Little basis on which to revise text. Mix of comments: Be removed by those who appointed, and equally strong comments that it should be a community mechanism. In whatever the model, recall that the designators had to support removal. If a single member issues, treat differently. The removal of director by one constituency seems unconstitutional. Once designated, they serve the whole community. Should not be removed because one community is not happy. ALAC is divided. The argument against the single SO/AC removing is to prevent capricious actions by the SO/AC, and concern expressed by ALAC and others it will encourage the Director to be overly representative. And don't want a situation where the rest of the SO/AC remove "my" director. Should only be removed with the approval of the appointing SO/AC. Public comments - 25 comments 23 agreements, 6 concerns and 2 divergent. Concern of the NomCom. What happens to a removed Director? Jordan, suggest that keep the status quo. Alan: fair number said community removal but may have been an unclear use of the term community The proposal was removal of the NomCom appointees should be a community process. Then the Lawyers suggested the NomCom as the appointers must be removers. But there are problems with the NomCom in terms of timing, in terms of process (being inherently closed, when transparency is necessary) Let the community council be designated as the NomCom sub-committee for removal. Agree with Alan's suggestion to have the community create a sub-committee which deals with the removal of the noncom designated directors. CA law suggests it must be the NomCom, but can be creative in saying it comes from the NomCom as sub-committee. A third option: Current NomCom, a new sub-committee of the NomCom, or the community council. Brand new committee: could be comprised of a rump group of prior NomCom. Original proposal was to use the NomCom through some process, but only through a petition step. Need to avoid creating a capture point. The community council as the removal agent. Avri: problem with the community council is that the designator approach is important. a. recall noncom with community petition b. community council as the recall noncom c. current noncom a = 4 b = 7 c = 0 (remove as an option) * Community mechanism. Difficult part is the number of votes. We defined two things are the reference mechanism. Difficulty over RSAC and SSAC. Go with the original and leave the other, which is equal votes for all. So long as we have fractional voting, it does offer an alternative between the more vote and less vote groups. Note, the AC only 2 votes. Withdraw comment. Comments on this new text, para 194 and 195, and discuss in email. Fractional voting. The granularity of each vote should be left to each group, Under the new proposal, abstentions raise the threshold. The intent was that there would be a threshold of 2/3, then anyone opting out would disappear from the count. Alan: will re-word this section. Wait for GAC comments. And GAC's public policy advice to the board. * Recall of ICANN Board: Strong support for this power. Clarify about the 2/3 or the SO/AC, unclear if it was the sum of or the individual. Agreed it was the sum of. The comments identify our action items. The first is working with legal counsel on implementation, Selected 30 calendar days as bracketed language for discussion, Action item 2 for WP1, our work syncs with the reference model Removed 245, which was the 80% threshold, and 75% is what we move forward with. 246 - removes members, and stated it is the community process. Engage with legal advisors on caretaker board. And WP1 will work on a caretaker board process, minimizing instability etc. CWG dependency noted. The community mechanism is the voting model Alan just described, not the enforcement model Implementation discussed in 246, says we must come up with a process that minimizes risk. Suggested language for 243 or 246. Mechanism for SO and AC to exorcise the community power. Community power, suggested drafting approach: as referred to in para... and cross reference to the para. The caretaker board has the same powers a traditional board? This is a topic open for discussion. 5.5 on removing directors. A petition on at least 2 SO or AC, or the SG from the GNSO. An alternative to a SO or and AC? Just highlight and fix later. SG having the same weight is that NSCG represents all of CS and CSG which represents all of business, and they are reduced to a sliver in this model. * Fundamental Bylaws Read through WP2 and WP1 work on fundamental bylaws. Support for this power. Need to provide an explanation as to why it would strengthen accountability. And note that CWG dependencies need to be fundamental. Minor changes. Added the IANA functions review to the list of bylaws that would be fundamental. A comment about location as fundamental, rejecting this noting that it would be addressed in WS2. Won't be an emergency to change, negation of concerns about operational impact . The potential controversial issue is whether the HQ bylaws should be fundamental. Note, not all of the AoC reviews are fundamental, only the IANA functions review at the request of the CWG fundamental. So no consistency requirement for 8b to be fundamental if Article 18 is not. (Agree about the SG issue above). Seemed a pretty even split between those who wanted article 18 fundamental or not. END

1 0

Proposal for dealing with removal of directors (was Re: An mplication of accountability models being discussed)
by Jordan Carter July 14, 2015

July 14, 2015

Hi all, Tijani made the proposal below and I wanted to draw it into a separate thread in case people missed it. On 14 July 2015 at 10:25, Tijani BEN JEMAA <tijani.benjemaa(a)planet.tn> wrote: > > Do you have a concrete suggestion as to how you would see the exercise of > such a power being done by "a process that is broadly distributed in the > community" as an alternative for us to consider, and seek legal advice on? > > This is a proposals for exercising the power of recalling Board directors > by a process that is well distributed in the community consisting in > recalling the board directors (from 1 to 15) by the community and not a > single SO or AC: > > · The decision is taken by at least 4 SOs and/or ACs including > at list 1 SO and 1 AC. > > · All the directors have the same treatment (selected by their > constituencies or by the nomcom) > > · The SOs and ACs and the NomCom select the board directors and > their interim simultaneously (the GNSO selects 2 acting directors and 2 > interim ones and the ALAC selects 1 acting director and 1 interim one, > etc.). > > · All acting directors sign before taking their position as Board > Director a commitment to step down in case a community decision to recall > them is taken > > · Those interim directors will fully replace the removed > directors if the number of recalled directors is less than 8. In case the > number reaches 8 or more, the resulting board (non recalled directors plus > the interim of the recalled ones) will act as a caretaker till the > selection of new directors to replace the recalled ones. > > · This is to replace the 2 powers: stilling the whole board and > recalling individual board directors. > > This has the merit to; > > · Fulfill the requirement of having the power to remove the whole > Board and to remove individual board members > > · make the change smaller and simpler by having a single > mechanism to recall the board directors instead of 2 > > · not having to find a way for the nomcom to remove their > appointed directors > > · avoid a period where ICANN run without board in place > > · avoid the risk of having an SO or AC recalling their selected > director because of the SO or AC interest and not the global public interest > > I have a couple of queries / concerns with this: - if you s/elect "alternative" directors at the same time as the genuine article, is there an incentive on those people to undermine the ordinary directors? - is it legally achievable - i.e. will the springing resignation letters provide enough cover for a different group than appointed, to enact the removal? - could the community council be the decision body for doing this on the community's part? cheers Jordan

2 1

AGENDA - Call # 40
by Alice Jansen July 14, 2015

July 14, 2015

Dear all, In anticipation of your call #40<https://community.icann.org/pages/viewpage.action?pageId=53782555> - Tuesday, 14 July from 12:00 - 14:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+&iso=201…>), please below a proposed agenda: 1. Welcome, Roll Call, SoI 2. Progress updates * WP1 * WP2 * WP3 * ST-WP * Lawyers 3. Review Paris agenda (see attached - please note that the agenda is work in progress and is subject to change (topics as well as times) depending on contributions from Work Parties) 4 GAC input (see attached) 5. A.O.B Thank you, Kind regards Alice

2 1

An mplication of accountability models being discussed
by George Sadowsky July 13, 2015

July 13, 2015

All, [This message contains my personal opinion and is not related to any formal ICANN Board function. My opinions may of course reflect insights that I've had as a result of Board service, but they're still my personal insights, and not ICANN positions, either formal or informal.] First, I accept the idea that the ICANN Board is accountable -- in fact, with multiple accountability requirements, including the Attorney General of the State of California (California law), ICANN Inc. (as a Director), the "community" (bylaws provisions), and the global public interest (Affirmation of Commitments). Personally, I also embrace another dimension of accountability; my actions must contribute to the health and growth of the Internet, as opposed to weakening them. That's clearly a subjective measure, as is the interpretation of what is the global public interest. A problem arises for me when there appears to be a conflict between satisfying one or more of these obligations while working agains others. For the most part, they coincide, but not necessarily always. For me, the most important accountability requirement that I have is to the health and growth of the Internet, and if I were to have to act against that in any significant way as a member of the Board, I would quit the Board. Here's the question: Does the CCWG believe that the global public interest is _always_ defined by "community" consensus or "community" dictates? Yes or no? I believe that the great majority of the time the two are consistent, but I believe that there are cases in which they diverge. Is there any disagreement among us that this could happen? In that case, what should a Board member do? Which is the higher authority according to the CCWG's thinking? It's somewhat more complex than that. ICANN uses the multistakeholder model precisely because it brings together stakeholder groups with specific interests that are often in conflict or opposition. It brings them together because only if they are together can they attempt to find compromise positions for progress. But sometimes that requires decisions that support one side's position and go against another's. GAC advice provides an excellent example; the Board may make a decision to accept or not accept, with follow up consequences either way. The issue comes up because of the CCWG discussion about removal of Board Directors. Such removal may well depend upon whether, in those cases of divergence of accountabilities, Board members choose a direction that does not reflect what the community wants, or what a major part of the community wants but a minority may not want. This implies to me that the test for removal of a Director must rest upon a process that is broadly distributed in the community and must recognize the different organizations to which such a member is accountable as an important factor in the process. What are the opinions of members of the CCWG on this point? George

19 39

Fwd: An mplication of accountability models being discussed
by George Sadowsky July 13, 2015

July 13, 2015

I'd like to post a response to a recent post of mine. John has sharpened my memory with some useful detail. I trust that this wording from the original AoC will be included in a future version of the bylaws; I believe that is the plan. George Begin forwarded message: > From: John Poole <jp1(a)expri.com> > Subject: Re: [CCWG-ACCT] An mplication of accountability models being discussed > Date: July 10, 2015 at 9:57:30 PM EDT > To: George Sadowsky <george.sadowsky(a)gmail.com> > > George-- > Well said--I am an "observer of the CCWG" so cannot post directly--the AOC confirms the "public interest" (defined as what is in the best interests of the global internet community NOT just special interest groups or "stakeholders" within ICANN) should be the standard by which the Board makes its decisions"-- > > AOC ... > 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. > > 4. DOC affirms its commitment to a multi-stakeholder, private sector led, bottom-up policy development model for DNS technical coordination that acts for the benefit of global Internet users. A private coordinating process, the outcomes of which reflect the public interest, is best able to flexibly meet the changing needs of the Internet and of Internet users. ICANN and DOC recognize that there is a group of participants that engage in ICANN's processes to a greater extent than Internet users generally. To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS. > > Best regards, > John Poole > > On Fri, Jul 10, 2015 at 12:13 PM, George Sadowsky <george.sadowsky(a)gmail.com> wrote: > All, > > [This message contains my personal opinion and is not related to any formal ICANN Board function. My opinions may of course reflect insights that I've had as a result of Board service, but they're still my personal insights, and not ICANN positions, either formal or informal.] > > First, I accept the idea that the ICANN Board is accountable -- in fact, with multiple accountability requirements, including the Attorney General of the State of California (California law), ICANN Inc. (as a Director), the "community" (bylaws provisions), and the global public interest (Affirmation of Commitments). Personally, I also embrace another dimension of accountability; my actions must contribute to the health and growth of the Internet, as opposed to weakening them. That's clearly a subjective measure, as is the interpretation of what is the global public interest. > > A problem arises for me when there appears to be a conflict between satisfying one or more of these obligations while working agains others. For the most part, they coincide, but not necessarily always. For me, the most important accountability requirement that I have is to the health and growth of the Internet, and if I were to have to act against that in any significant way as a member of the Board, I would quit the Board. > > Here's the question: Does the CCWG believe that the global public interest is _always_ defined by "community" consensus or "community" dictates? Yes or no? I believe that the great majority of the time the two are consistent, but I believe that there are cases in which they diverge. Is there any disagreement among us that this could happen? In that case, what should a Board member do? Which is the higher authority according to the CCWG's thinking? > > It's somewhat more complex than that. ICANN uses the multistakeholder model precisely because it brings together stakeholder groups with specific interests that are often in conflict or opposition. It brings them together because only if they are together can they attempt to find compromise positions for progress. But sometimes that requires decisions that support one side's position and go against another's. GAC advice provides an excellent example; the Board may make a decision to accept or not accept, with follow up consequences either way. > > The issue comes up because of the CCWG discussion about removal of Board Directors. Such removal may well depend upon whether, in those cases of divergence of accountabilities, Board members choose a direction that does not reflect what the community wants, or what a major part of the community wants but a minority may not want. > > This implies to me that the test for removal of a Director must rest upon a process that is broadly distributed in the community and must recognize the different organizations to which such a member is accountable as an important factor in the process. > > What are the opinions of members of the CCWG on this point? > > George >

4 3

Financial Accountability
by Paul Rosenzweig July 13, 2015

July 13, 2015

Colleagues might find this recent article of interest, as we were discussing this topic recently: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/ Paul Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9>

3 2

Notes-Recordings-Transcript links for WP3 Meeting #4 (13 July)
by Kimberly Carlson July 13, 2015

July 13, 2015

Hello all, The notes, recordings and transcripts for the WP3 Meeting #4 - 13 July will be available here: https://community.icann.org/x/6ao0Aw A copy of the notes and action items may be found below. Thank you. Best regards, Kim ACTION Items ACTION ITEM - Add your contribution to SO/AC accountability google doc. WP3 edits are needed by 06:00 UTC - 14 July. ACTION ITEM - Provide input to staff accountability document by 06:00 UTC - 14 July. ACTION ITEM: Send edits and comments on diversity document by 06:00 UTC - 14 July in preparation for WP3 call. ACTION ITEM: Leon to consolidate documents for discussion tomorrow. Notes Status of documents: Diversity paper circulated. SO/AC accountability paper includes changes - no changes to staff accountability paper SO/AC accountability - https://community.icann.org/pages/viewpage.action?pageId=53783727 Edits from Jan were incorporated: we have added 1) operational rules and procedures of SO/ACs; 2) new language to proposals being made from subgroup; 3) commitment from SO/ACs to perform review of accountability mechanisms. Most of the work will be done in WS2 in interest of time but also in consideration of mechanisms that are envisioned as part of WS1 to ensure tasks are carried out. Feedback: - We should understand roles of SO/ACs before evaluating accountability. It would be misleading to have comparable mechanisms. We should be difficult when drawing parallels. - Review needed to build beyond that. We need to be careful about expectations we are setting as we build our model. - Any of the enhanced accountability structures are attempting to give more power and oversight collectively. There is an enhance 360 problem. We need to have a high level statement. - We are talking about SO/AC accountability to their own community. We are implicitly giving control to rest. - We do not have time to deal with this issue - it should be postponed to WS2. We should not push for a specific area. SO/AC accountability is not a priority. - Stress Test suggested by NTIA are under discussion (capture - periodic reviews - new Charter might not be approve (caveat) - standard of review for internal capture). - We have to very specific about what we are leaving for WS2 (checklist). Minimum transparency benchmarks would be desired. - There isn't much accountability language in SO/ACs documents. ACTION ITEM - Add your contribution to SO/AC accountability google doc. WP3 edits are needed by 06:00 UTC - 14 July. Staff accountability - https://community.icann.org/display/acctcrosscomm/Staff+accountability Very little volunteers and no changes made to draft that was produced. Feedback: - There are a number of ATRT2 recomendations that we should have started working on immediately - there has been no effort. - No time to address this. - We have been focused on Board accountability and have not dealt with staff accountability. Complaints about executive staff. How is senior staff held accountable? Is there anything we can do about it? - Education and audit is critical. The transparency is an issue - it is hard to audit that. Educate members to multistakehodler model is something that we often see as should come out. It takes time to figure out what it is to be a member in organization like ICANN. ATRT is a place where more work can be done. - We could not discharge CEO from his responsibility and go directly to staff. Staff is indirectly responsible. CEO and/or Board are responsible. Accountability remains with CEO. ---> Recommend we schedule programs led by CEO. - We are looking at accountability of staff overall - In discussing ICANN accountability, issue of Board and CEO was discussed. Important to resolve matter. Find ways and means to contribute. ACTION ITEM - Provide input to staff accountability document by 06:00 UTC - 14 July. Diversity - https://community.icann.org/display/acctcrosscomm/Diversity How would we address diversity in our mechanisms? The document includes a non-exhaustive list of criteria. Feedback: - Competency , experience and regional distribution are the three criteria we should focus on for diversity. All elements are relevant but difficult to implement. It would be inappropriate to eliminate competent people because of gender balance. ---> Suggestion to have different criteria that should be taken into account. Final decision would be left to appointing bodies. - Consider this from the root: lack of diversity in overall pool That is where substantial effort need to be made. - Competence can be found in all groups. It is rather finding a way of nurturing that competence, including, engaging. We need to make way for their participation. Problem statement is too long for purpose. ACTION ITEM: Send edits and comments on diversity document by 06:00 UTC - 14 July in preparation for WP3 call. ACTION ITEM: Leon to consolidate documents for discussion tomorrow.

1 0

Accountability Statement [with apologies for x-posting]
by David Post July 13, 2015

July 13, 2015

To all: A couple of weeks ago we hosted a roundtable discussion at the OTI office in Washington DC among a number of the tech policy/advocacy groups, to see whether there was some common ground or consensus among us about the accountability mechanisms that we believe need to be included in any final transition proposal. The attached is a draft of what such a statement might look like. I hasten to point out that it has NOT been vetted yet by any of the institutions/organizations we would hope might be involved in such a project, so that at this point it doesn't represent anyone's views by my own -- but I think it at least indicates the direction in which our discussions are moving, and I thought this might be a useful time to inject it into the ongoing CCWG discussions. 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 *******************************

3 2

Notes-Recordings-Transcript links for CCWG-ACCT #39 - 7 July
by Kimberly Carlson July 13, 2015

July 13, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT Meeting #39 - 7 July will be available here: https://community.icann.org/pages/viewpage.action?pageId=53782553 A copy of the notes and action items may be found below. Thank you Best regards, Kim ACTION Items ACTION ITEM - Prepare analytical slides on third model ACTION ITEM: Investigate single membership model Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. 1. Welcome, roll call & SoI Contact staff if you need assistance to update/post your SOI. Keith Drazek, Cheryl Langdon-Orr and Greg Shatan are on phone. 2 WPs Progress updates WP2 Calls have been set up for Wednesday and Monday to focus in on getting work done. An annotated comment tool has been circulated to the group and an update will be sent soon. Tool will need to be reviewed in advance of calls. We have significant issues to discuss. WP1 Call on Wednesday, Friday and next Monday. We have volunteers working on drafting content for second report based on BA disucssions and public comment period. Voting rights and mechanisms will be discussed in upcoming calls as well as AoC. After Paris we will update the public comment tool. WP3 First call held on 6 July. We will be dividing work with regards to emerging issues into three subgroups. Reading list in place. They will build inventory of mechanisms already in place. If no mechanisms in place, we will create a list of items to discuss at Paris meeting. ST-WP Call planned for Wednesday. --- All volunteers with availability should join and help with drafting for Paris. A short number of key principles can help us focus on what matters: 1) stay focused on issues for which we have wide support and not reopen new issues. We have tremendous summaries of public comment that were produced ahead of BA. Read public comment summaries and check what was agreed on. 2) we have spent time to define WS1 and WS2. WS1 is measures that would enable implementation. This should help us draw line on what can be done now and in WS2. 3) To have a productive meeting in Paris, we will need to have documents in advance. Frozen deadline for Paris documents is: 14 July - 23:59 UTC. We are freezing document supporting F2F discussions 2-3 days prior to meeting for all to be given opportunity to review documents and avoid last minute submissions. Initial outline of Paris meetings Outcome: find common ground on discussions labeled open so that second proposal can be drafted for WS1 in time for PC2. Agenda will include: Work Stream 1 items out of WP3, discussions on community mechanisms (models and modalities), removal/recall of Board members, contributions from GAC, refinements needed on IRP, CWG requirements. We will build agenda on topics rather than review report line by line. We will provide a consolidated agenda by next Tuesday. Feedback: - Removal and recall Board - why? --> Individual Board member removal and recall of Board yielded comments that were not unanimously in favor and a number of comments requested refinement. --> It may no longer need to be considered depending on model. Lawyers' presentation The slide-deck will allow further discussion in Paris. The independent legal counsel walked the CCWG-ACcountability through the slide-deck. See - https://community.icann.org/download/attachments/52890082/Description%20and… - for more information. Slide 3: we left BA with better understanding of hoe community works. We would like to provide you with pathways but don't have a biaised in terms of the outcome. We heard that the current mechanisms are insufficient. The concerns underline difference of opinion. The models put on table in BA address some of the concerns. Slide 4 Trust and enforceability continuum Slide 5 - Empowered SO/AC membership relies on direct membership but it does not require legal personhood. The empowered SO/AC designators model expands on current rule of selecting designators. Both of models respond to concerns of lack of enforceability. Slide 6 Common elements: 1) they rely on SO/ACs to operate; 2) they rely on staff, Board to apply Bylaws. Enforceability is enhanced through direct rights or indirect rights around powers that are described in initial proposal. CWG dependency power was added. Some of powers are subject to indirect enforcement. Slide Empower SO/AC membership model - nobody would be required to be a member and any can choose to opt-in. It requires legal personhood. Exercising powers would not change. Door would remain open for membership. Slide 8 - refer to set of questions. Slide 9 - Slide 10 - Slide 11 Slide 12 - More detail about powers, how they would be enforceable primarily through encouraging binding process (IRP process). Slide 13 - We are trying to provide detail on implementation. We have had to make some modification. Slide 14 - We have model where Board has full control over ICANN subject to Bylaws and articles of incorporation. Powers to amend articles of Bylaws are currently solely in hands of Board. Slide 15 - One of the problems is that with membership model, we would be trying to draft a structure where there may be no members. In corporate law that would be a problem. Both models start with voluntary compliance phase. There is a difference between going to membership and designators. There is a trigger: both models are essentially relying on rights giving to non-members. Read slide for description of Bylaw enhancements. Designators have agreement as to when will exersice rights. Any SO/ACs could opt in at any time in both models. Slide 16 - The models were modified to drive them as far as we could drive them. It does not mean we were able to get 100%. Models may involve trade-offs. Enforcement issues depending on model. There is a risk members could capture organization, hence the majority trigger. We will need to work on limitations on voting agreements. Slide 17 - Slide 18 Slide 21 - CCWG to populate this slide in Paris Slide 22 - --- This is an introduction to Paris discussions: a common baseline of information around these models. --- Feedback: - We should have asked to consider how two models will impact on overall proposal: mission, core values, principles etc. We need to understand to what extent models can deliver on elements of proposals. Slide 16: it is noted that designator model would not have reserved powers etc - it is important to draw that out more clearly. ---> In interest of time, issues are more straightforward. Focus on difficult areas. This needs be looked at holistically. We can add more detail in Paris on how issues are impacted. - If the escalation is not decided by the whole community as described, does that enable member to do enforcement he wants? Quid of third model - can we have a review of it? ---> Third model is not a separate model, it is a modification. Both models think about legal personhood. - The way the empowered designators model is described implies right to rejection. To what extent can we request preapproval on issues that require rejection? - Balance of powers of SO/ACs is an important point we need to look at. Are we happy with voluntary model? Do we need a full legal enforceability mechanisms? This is something we need to think strongly about as we go into Paris. A set of questions will be sent to list after call. ---> We are not prejudging level of enforceability needed. It is for community to resolve levels of enforceability. - Summary slides would be welcome. Community is mixed about enforceability. Is there a way to reduce down to questions of preference. ---> We are trying to extrapolate how law would apply. We can come up with questions designed to guide further discussion and determine where group is. - Lawyers are pushing for membership. There is nothing new in this presentation. Unilateral presentation and no time for questions. Counterproductive. - If there is no community escalation, does that prevent any SO/AC or member to become a legal person and enforce what it wants. ---> There is issue with membership model. Slide 16 talks about suits: it is unclear how strongly we will be able to limit single member exercising statutory rights. We have suggested delaying conversion to membership status.. We are not sure how we can constrain power (bullet 3 - slide 16). We can channel process to IRP. Should someone decide to go around it, still deciding how to constrain that. --> Membership model unquestionably gives the community the strongest amount of control Members can override Board decision. If that is your priority, it is the strength and weakness of member because that power goes to whoever is a member. The designator model has weakness of not being able to force Board to do certain things. - Deritative law suits: we should know what we are getting into. What does it mean for community? Are we going to have situation where Board members could be under threat of litigation? ---> We have not been able to determine whether we can have Bylaws or contracts stipulate that these type of disputes need to go through IRP. There are cases in Maryland but it is unclear in many States whether that applies. We can attempt to draft Bylaw that prescribes it. Difficulty comes when get in a severe dispute, I don't know we can prevent that. - I understood its advantage is to avoid a particular SO/AC taking power of the the other - are there any observed weaknesses we should note? --> All SO/ACs would participate in community mechanism. Instead of having SO/ACs be legal person, you would make body the legal person that would be sole member of ICANN. It would function as contemplated. It is not an avatar. Whatever vote of community is, it would be vote of member in regards to powers with respect to ICANN. Bylaws that community mechanism is to be recognized as legal person. Details to be worked out. --> It would be resolution of group. We would draft bylaw for resolution to be sufficient to confer legal personhood. It is not the unincorporated association that was referred to as avatar. - Could you provide us with overview of how it might work and solve problems with membership model or if these problems don't exist with single member. Wary about how solving group. Would appreciate if analysis of how it meets criteria. --> It is for Cochairs to order work. - Single membership - we have seen a lot of problems. We are working on theory. We can't sell product. We have not made progress. We have to simplify matter - reconsideration and power to remove board. No point in membership. - Lawyers will be speaking on third option - no one is deciding anything. We will be looking at models in Paris. - How to protect minority rights in this model? ---> Through IRP mechanism e.g. More work is needed on what minority rights are we seeking to protect and how to protect them --> Concept of single member model is that we move membership status from individual SOs Acs and move it up to whole community. The membership model gives power to the members - it gives it to each member and to member collectively. The individual component community won't have statutory rights of members. Questions really go to pros and cons. You asked us to push two models. You have to agree which of the models provides best trade-off. - Third model seems good but would like same analytical work. ACTION ITEM - Prepare analytical slides on third model. - Would delegate option be a valuable option to investigate and why or would this option not have advantage? --> Delegate option was raised early in process. Outside of religious corporate context, delegates are representative of members. delegate structure is a refinement of membership structure. Delegates are used where you have such a large membership that you could no longer expect members. Delegate structure is designed to challenge membership rights through delegate. - What kind of threshold would it need to make decisions. How does it save us from pitfalls. --> It would be helpful to have additional guidance. -Explain why your views on delegates defer from Jones Day's views. - The superset is not a large number of SO/ACs. Focus on that as we make decision. We can't ignore it. ---> Communities should consider who is going to participate and at what level - Are we looking at designators model with pre-approval rights? ---> Expecting leadership to tell us what is on table. Conclusions Traction to solidify the further investigation in writing of model as single members, taking into account questions in the chat related to this model. We have sufficient traction for that and it will be valuable ahead of Paris. ACTION ITEM: Investigate single membership model We should take suggestion to strengthen weakness to recap analysis. It will help us focus on benefits and concerns associated with each model. Delegate option is triggering legal controversy. Suggest it is off table Pre approval rights: before certification - we need to get back to requirements and initial discussions first. It is too early to get legal search on this. Note concerns raised in Istanbul about budget paralysis etc. This would be a change from the position we put forward in the first proposal. We must have a reference model in Paris or the timeline will be broken. Frozen deadline will apply to legal counsel's document. Counsel can ask questions to group to help guide thinking for meeting.

2 1

Input from GAC Members for Paris Meeting
by Tom Dale July 13, 2015

July 13, 2015

Dear CCWG As foreshadowed in the recent GAC Communique from Buenos Aires, please find attached a consolidated set of comments from GAC members on ICANN Accountability issues. The questions against which the comments are framed were discussed and agreed by the GAC at its Buenos Aires meeting. Regards Tom Dale ACIG GAC Secretariat ACIG - Australian Continuous Improvement Group evaluate :: improve :: innovate Cell: + 61 418 207 376 tom(a)acig.com.au<mailto:tom@acig.com.au> www.acig.com.au<http://www.acig.com.au/> ACIG is an independent consulting firm engaged to provide secretariat support to ICANN's Governmental Advisory Committee.

1 0