July 2015 - Accountability-Cross-Community

Meeting CWG requirements for IANA Budget - pls comment
by Jordan Carter July 20, 2015

July 20, 2015

Hi all As noted, Lise and I have had a chat about the CWG’s requirements for the IANA Budget. There has to be provision as a fundamental bylaw and we need to be clear and constructive in how we provide appropriate The CWG’s purpose as I understand it, is that through this power the community has the chance to protect IANA's funding at an adequate level so that it can do its job. In our discussion we sketched out the following thoughts: The IANA Budget (the PTI Budget) would be a separate Budget from the ICANN budget. The same community veto power would be available for the IANA Budget as for the ICANN budget. The threshold for a veto of the IANA Budget could be lower than is proposed for the ICANN budget, due to its greater sensitivity. If an IANA Budget was vetoed, because of the requirement for earlier Budgeting, the issue would likely be resolved before the start of the relevant financial year. The caretaker proposal for the IANA Budget would be that if there had been a community veto and it carried into the new financial year, funding would continue at the same level. Now: this all looks very similar to what would happen to the ICANN budget. So the only critical design question is whether it is a part of the ICANN budget or whether it is separate. I think separate makes sense. There will have to be a separate budget identified anyway, so this precursors future improvements to the IANA Budget review mentioned by the CWG. Thoughts on the general approach? The separate IANA Budget? A different threshold? cheers Jordan 1. ICANN Budget and IANA Budget. The ability for the community to approve or veto the ICANN budget after it has been approved by the ICANN Board but before it comes into effect. The community may reject the ICANN Budget based on perceived inconsistency with the purpose, mission and role set forth in ICANN’s Articles and Bylaws, the global public interest, the needs of ICANN stakeholders, financial stability or other matters of concern to the community. The CWG-Stewardship recommends that the IFO’s comprehensive costs should be transparent and ICANN’s operating plans and budget should include itemization of all IANA operations costs to the project level and below as needed. An itemization of IANA costs would include “Direct Costs for the IANA department”, “Direct Costs for Shared resources” and “Support functions allocation”. Furthermore, these costs should be itemized into more specific costs related to each specific function to the project level and below as needed. PTI should also have a yearly budget that is reviewed and approved by the ICANN community on an annual basis. PTI should submit a budget to ICANN at least nine months in advance of the fiscal year to ensure the stability of the IANA services. It is the view of the CWG-Stewardship that the IANA budget should be approved by the ICANN Board in a much earlier timeframe than the overall ICANN budget. The CWG (or a successor implementation group) will need to develop a proposed process for the IANA-specific budget review, which may become a component of the overall budget review. -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan(a)internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential.

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Concept of some form of "independent" member
by Bruce Tonkin July 20, 2015

July 20, 2015

Hello All, [Disclaimer: the following is a personal view, and not the view of the Board or any other Board member). During the discussion today on the three models - Empowered SO/AC membership model, Empowered SO/AC Designator Model, Community Mechanism as sole member model. I noted that one of the ideas we used in the new gTLD program was the concept of an "Independent Objector". The independent objector does not act on behalf of any particular person or entities but acts solely in the best interests of the public. >From my perspective the bylaws should "empower" the community as have been proposed by the CCWG. My intervention is purely about an enforcement last resort. The group is considering using a panel of independent people (IRP panel) to determine whether the Board has followed the bylaws. The group is also considering making the decisions of this panel to be binding. I have heard there is a concern that the Board may not follow the result of an IRP. Thus the proposal is some form of formal member would then be able to take ICANN to court meet its bylaws requirements around the IRP. There are lots of discussions about how to somehow turn the SO/ACs into members to be able to have legal enforcement powers. My suggestion was simply to create another form of "independent" person that would have legal standing and would be a member. That independent person could then take legal action against ICANN if it didn't follow the decision of the IRP where it is clearly not in the global public interest. The independent person would be able to take submissions from the SOs and ACs and any member of the public in making their decision. It is not dependent on simply those that are members of an SO and AC being able to get their SO/AC to take action through one of the proposed models, but could take into account any member of the public (including ccTLD managers that are not members of the ccNSO). Regards, Bruce Tonkin (personal comment)

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Notes-Recordings-Transcript links for Face to Face - Paris - Day 2, Session 2 (18 July)
by Kimberly Carlson July 20, 2015

July 20, 2015

Hello all, Sorry for the delay. The notes, recordings and transcripts for the Face to Face - Paris - Day 2, Session 2 (18 July)will be available here: https://community.icann.org/x/FIFCAw A copy of the notes and action items may be found below. Thank you. Best regards, Kim Notes IRP · to more closely focus the IRP to identify if ICANN has failed to act, and satisfy the statutory claims of the sole member · community selection process to designate members of the panel. To create a pre-vetted pool of members and alternates · standing: available to person or entity materially harmed, by action or inaction. · tender a process to find an organisation to set-up the IRP court, though an RFP from well qualified candidates · expertise: beyond technical, e.g. diplomatic, regulatory · diversity: aspirational diversity, and some suggestions for caps, minimum or maximum from a region · scope: for any violation of the bylaws, and under the mission and core values ICANN has an obligation to follow documented policy and act without discrimination · Exhaustion: can't sit on the sidelines of a police development process, there is an obligation to be part of the process · Some contemplation of having to go to ombudsman or reconsideration process before launch of an IRP. · the period of the consideration should be fixed, as a WS2 effort to define processes. · Criteria for appeal will be established. Avoiding frivolous or insubstantive claims · Diversity important for the panel. · Community driven, but the Board will also have a say. · CCWG to continue to developed rules of procedure · Consideration of issues out of scope of the IRP · Appels procedure, avoiding a continuous loop. · Support for the enhanced IRP 2. - Removal / recall Board members Individual Directors · should be open and transparent · support for the appointing SO/AC being able to remove their director · Provided 3 option for removal of NomCom appointed directors · The single member does the removal, but on instruction from the SO/AC · NomCom removal process to be discussed/agreed · Assume this power will be exercised as the other powers, with petition and thresholds for agreements · Need to synchronise with the reference model, the community forum and voting mechanisms · To be aware of the CWG dependencies · Most feedback was that the appointing body would be the remover. · Principle of fairness, the criteria of what constitutes cause should be available to all appointed. · Thresholds should be consistent across SO/AC and NomCom. · The decision threshold in the proposal is the same for all Directors · Notion of fairness and criteria for removal should be considered by WP3 · Sébastien Bachollet expresses concern and a member's minority view on Director removal · Concern noted that the ability for the appointing body to remove a Director may turn that person into a representative of that body, not to serve ICANN as a whole.

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Notes-Recordings-Transcript links for Face to Face - Paris - Day 2, Session 1 (18 July)
by Kimberly Carlson July 20, 2015

July 20, 2015

Hello all, Sorry for the delay. The notes, recordings and transcripts for the Face to Face - Paris - Day 2, Session 1 (18 July)will be available here: https://community.icann.org/x/EoFCAw A copy of the notes and action items may be found below. Thank you. Best regards, Kim Action Items Action: Lawyers answers need to be written and sent to list Action: Lee Bygrace to assist with drafting text for Core Values Action: clarify the requirements based on Stress Test 18. Delve in further in the Bylaws drafting stage. Notes Presentation by external counsel. Answers to questions from Tijani Answers to question from Seun Answer to Chris: Logistics to be taken into account with the sole member? As a sole member, basically none. It will act on paper, recognising the member has acted. It will have to exercise the rights given in the bylaws, nothing additional and administrative. If a SO/AC wants to act, do you need legal status? The sole members has the ability to enforce the bylaws through and IRP, and enforce the decision of the IRP panel in court. Individual SO/AC may exercise specific rights, they have access to the IRP to enforce those rights. And the community could go to court on that SO/AC behalf to legally enforce as necessary. Only the community mechanism will have the statutory rights. The ability to create new advisory committees is in the current bylaws. If a new AC/SO is created, assume it automatically become part of the community mechanism and the voting weights will change. Keep the changes to voting arrangements in mind. The model is contemplated as being open. And these issues of voting rights and thresholds will be the focus of drafting and implementation. How to deliver their votes will be at the judgment of the SO/AC, flexible arrangements. Tijani: the question was can a single SO/AC can take ICANN to the courts. Answer: Can write in the bylaws that any dispute must go through the IRP process. And avoid other forms of litigation. If the outcome is the sole member model, then may start with a clean sheet when designing its modalities. Note the key difference is that the council is a forum for discussion, voting happens at the SO/AC level. There are statutory rights for members. Only the sole member is a member. The SO/AC are not members. The SO/AC do not have statutory rights, those rights are only collective rights. And there will be a truncation of rights in the bylaws to reinforce this arrangement. A power initiated to block a bylaws change. A petition from the threshold of SO/AC to initiate. A discussion within the council forum for some period of time. If the outcome it to cal for a vote, then the vote is made at the SO/AC level. The implementation detail by CCWG Tuesday July 21 call. Objection from Eberhard Lisse extended from CCWG meeting #41 to #42. Where we are * Positive feedback on the membership model yesterday * Answered questions today to best of ability * Lots of support in chat for sole member model * Sam and Alan preferred designator model * No objections CONCLUSION: new reference model -- community mechanism as sole member model Action: Lawyers answers need to be written and sent to list Larry blog post indicated need for documentation of all the models Suggestion to communicate that no new formal structure will be created as the community forum - the forum will be an open forum for discussion. 09:45-10:30 - Review of government input / concerns and way forward * Consideration of government comments. * Noting the contribution of there government of China.(sent this morning to list) In document on screen, black text is from ICANN's current Bylaws. Red text is proposed by CCWG. Action: Lee Bygrace to assist with drafting text for Core Values More common ground on requirements. Bylaws drafting to take place after the requirements are agreed. Action: clarify the requirements based on Stress Test 18. Delve in further in the Bylaws drafting stage

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Notes-Recordings-Transcript links for Face to Face - Paris - Day 1, Session 4 (17 July)
by Kimberly Carlson July 20, 2015

July 20, 2015

Hello all, Sorry for the delay. The notes, recordings and transcripts for the Face to Face - Paris - Day 1, Session 4 (17 July)will be available here: https://community.icann.org/x/DoFCAw A copy of the notes and action items may be found below. Thank you. Best regards, Kim Notes Now, session on government input (previous session rate late) * GAC to remain in advisory status * Large diversity of views in GAC input Core value 11 and Stress Test 18 are issues for France and, if they remain, they will be limits to gaining concensus on CCWG proposal in Dublin. Community mechanisms practicalities (including voting weights) What were the concerns found during the Public Comment? * A range of views on voting weights: SSAC and RSSAC not wanting voting weights. Some calls for GNSO to have greater voting weight * How votes can be shared within an SO/AC's allocation * Clarity on whether there is a Community Council How were they resolved? * Central proposal still 5 votes each for SOs, GAC and ALAC, and 2 votes for SSAC and RSSAC, alternative 5 votes each * Clear expression of SO/AC right to share votes among constituent parts by formal decision of that SO/AC * Opting out or abstentions removed from count - minimum thresholds to take action * Mechanism is a group: ICANN Community Council, with nominees from SOs/ACs. Participation at varying levels. Potential for F2F meeting if ultimately needed. What are the open issues? Decision in Paris or Included in 2nd Proposal * Group preference for voting weights, including what to do with RSSAC/SSAC * ICANN Community Council * If GAC decides to participate in any way, would they lose their unique right to "negotiate" with Board? Other points to note/consider: * The ICANN Community Council could be the "Sole Member" * Fractional votes could imply large number of people per AC/SO Numbers are not clear in GNSO CONCLUSIONS: Voting weights: * SSAC and RSSAC are not interested in any major change (would require bylaw change). They will not have voting rights in the mechanism as proposed. * Other groups will remain at 5. Suggestion to go into 2nd Public Comment with fractional votes. Refining community powers: budget / strategic plan, Bylaws - WP 1 What were the concerns found during the Public Comment? * Better to improve community involvement in Budget and Strat Plan Development * Concern over potential operational paralysis * Concern over board acceptance of continuing resolution * How do we prevent "horse trading" by SO/ACs on budget (TODAY) * How do we prevent undue delays in budget development (TODAY) How were they resolved? * Clarification that continuing resolution prevents paralysis * Assurance that development process improvement is in WS2 * Proposals to cap round trips before escalation or squeezing the budget * Clarification over voting thresholds, depending on mechanism For WS2, improving the budget process Edit the draft to include: - provide rationale for veto - rationale will include public comments reference A veto does not affect the IANA/PTI budget. --> no agreement. group will factor discussion in re draft and suggest clearer text Do we agree that the budget process needs to be further defined in WS2? --> Yes. However, for clarity, IANA budget is not tabled to WS2. What are "budget sanctions"? In case there is a veto, the budget would be cut by a certain percentage to force concensus. --> CCWG decided against having these sanctions in the budget Rest of WP1 will be sent to mailing list (Fundamental bylaws and Standard Bylaws) 17:45-18:30 - Review of emerging items - WP3 Relevant documents : - Staff accountability WP3 input - SO/AC accountability WP3 input - Diversity WP3 input Staff accountability -- defining role with regard to ICANN and community for WS2 Look at SO/AC accountability as part of structural reviews Diversity --> keep in WS1 the regard for diversity in any proposal(s). Any item of WS1 will need to be fully described in the 2nd draft since the Public Comment is the last opputunity for comment.

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Notes-Recordings-Transcript links for Face to Face - Paris - Day 1, Session 3 (17 July)
by Kimberly Carlson July 20, 2015

July 20, 2015

Hello all, Sorry for the delay. The notes, recordings and transcripts for the Face to Face - Paris - Day 1, Session 3 (17 July)will be available here: https://community.icann.org/x/C4FCAw A copy of the notes and action items may be found below. Thank you. Best regards, Kim Notes 13:00-13:30 AoC Reviews incorporation into ICANN Bylaws Two options for review team composition Clarification of language on the scope of the ATRT review and on OECD guidelines Participation in the review teams: particular interest from the commercial side of GNSO Options for populating the review teams: open membership with normalized voting; fixed number of members with each SO/AC providing a set number of members. The IANA functions review is a CWG dependency and has been incorporated. Question about timing: staggered timing to avoid overload of work, and particularly the requirement on the Board chair Has the current AoC model been considered? The current model has no diversity requirement and no limit on numbers. Change suggested for the community to designate rather than chair of the Board and the GAC. This option published in the first public comment. The proposal includes a recommendation for an annual report on the status of implementation. Suggestion about prioritisation of recommendation will be considered by WP1 as either WS1/WS2. Consideration that the smaller the review team the more effective the group tends to be. And not intended as fundamental, except for the IFR. Suggestion to include the Board included as one of the selection bodies. The size should be reduced. Prioritisation requires more information than has been available to past ATRTs. Members suggest they tried, but were not able to prioritise. No object to option 2, compared to the others. Use the AC room. Can we launch the text case of bylaws drafting based on the AoC section? About access to all documents. And the review team members shall not disclose sensitive and confidential information, but not at ICANN's sole discretion to decide what is sensitive and confidential. The issue is broader than nondisclosure, there may be competition issues. Note, need to refine this part of the requirement, with a call to help WP1 on this. 13:30-14:30 - Community empowerment model: public comment 2 reference model Concerns about SO/AC becoming legal persons Exercise of statutory rights to dissolver ICANN Derivative powers The potential for capture by members that taken on membership. The community mechanisms as the sole member. The group of participants acting together to exercise rights in ICANN. Would be the sole member, done through the bylaws. Not every person participating in a community mechanism has to vote: some can listen, advice or vote. The SO/AC, act within there internal mechanism. Insert votes into the community mechanism as needed. The legal entity shields them from liability for actions of the member body. The sole member is a member of ICANN an is shielded from liability from actions by ICANN. The sole member would communicate to the Board. Need at least 2 people, to be there as the legal participants. The bylaws provide the voting rights and mechanisms by which they votes. If the community mechanism ignored the voting threshold, then there would be the IRP, legal rights and trust. Other logistical requirements with members, such as holding an AGM, voting to accept the financial reports, bylaws approval etc. The statutory rights chart lists all that should be addressed in the bylaws. Relatively light set of rights: hold a meeting, to amend bylaws, and the board independently can amend. Composition of the "community council" sole member. Is it possible to add new SO/AC. Then community mechanism would be made up of the SO / AC and individuals who would not vote. Requests to participate would be a decision of the participants in the community mechanism. The legal entity shield all participants: the limited liability extends to shielding what goes on inside the sole member. It has no fiduciary duties, cannot be sued for those. Some participants in the sole membership may have person hood, some will not. Concerned that some scenarios, may give those that have personhood advantage. But cannot think of such examples. Any difference in anti-trust exposure between the models? Don't see a distinction between the three models. Can the SO/AC set up different voting thresholds, for example to exercise statutory: within the sole member model can draft different thresholds etc. Designator model: the appointing body must approve removal, can this be applied to the sole member model? Yes, can be built in. Not supporting the designatory model, relies too heavily on recall of the Board, which is too disruptive. Supporting the designator model, which represents the least change to the organisation, greatest stability. Concern with the sole member model, that it has many open questions. Comment: see anti-trust risk in coordinated actions within sole member. Response; the sole member approach would require agreement by all the parts of the sole member, and the diversity in that group should protect against anti-trust concerns. Is there anything to stop the sole member from incorporating outside ICANN? Response, changing its personhood could be prevented by adding to the articles to prevent it changing it's status without Board approval. New participants: need to build into the bylaws. Recalling hearing 'Participation in the sole member is equivalent in participating in ICANN' why the sole member essential? Response: the counter balance to a board driven or controlled entity is a membership. It's the common structure for controlling the board: electing, removing g the board and a set of reserved powers. Support for the empowered designator model: The potential power of a limited number of SO/AC joining the sole member and having the ability to dissolve the corporation and other powers. Could this concern be addressed by voting thresholds? An advantage of sole member model, the sole member will be directed by the community, and could make this unanimous or unanimous plus the Board. Feel can control for this concerns. Wild card objection from Eberhard. Grave concerns by Sam. Hopefully Alan's concerns removed. Feel there is traction for the sole member model. Objections, please make selves heard. Please channel through the co-chairs to the lawyers. Who will answer tomorrow? Avoid confusion using this method vi the chairs. Send as soon as possible or close of the meeting today

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Group Photo!
by Hillary Jett July 20, 2015

July 20, 2015

Thank you to everyone who attended the Paris face-to-face meeting! -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Interested in the IANA Stewardship Transition? LEARN MORE <https://www.icann.org/stewardship-accountability> . STAY UPDATED <https://www.icann.org/stewardship-accountability#status> . FOLLOW <https://twitter.com/icann> . ENGAGE <https://www.icann.org/stewardship-accountability#involved> . Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org

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CCWG - Analysis of GAC Comments
by Bernard Turcotte July 20, 2015

July 20, 2015

All, Per the co-chairs request please find attached the analysis of the GAC comments to the CCWG. Cheers. B. PS I will circulate the open format version later.

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Staff accountability
by Kieren McCarthy July 20, 2015

July 20, 2015

One of the key things that Strickling mentioned in his accountability blog post was that this group needed to devise accountability mechanisms for ICANN's staff. There is a great example this week of how the staff currently lives outside any form of effective accountability in the unredacted version of the .Africa IRP decision. http://www.theregister.co.uk/2015/07/15/icann_dot_africa_review/ Not only did ICANN staff - its head of operations, no less - intervene in favor of one applicant over another, but when that fact was repeatedly referenced in what is supposed to be an independent review report, the staff decided they would remove that information before the report was published. This is a culture of impunity. What I would like to see introduced to ICANN is the ability to call for hearings/inquiries into issues. Similar to how Congress can hold inquiries into something, compel witnesses to appear, compel the release of information, fact-find and produce a report. Having read all the various legal advice provided by the independent legal experts, it strikes me that the ability for the community to establish such an inquiry and then compel witnesses and evidence to appear is not difficult to set up. Kieren

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Paris Communiqué for Consideration
by Hillary Jett July 20, 2015

July 20, 2015

Sending on behalf of the co-Chairs Hello all, Attached you can find the draft communiqué from the Paris meeting for your consideration. Please provide any redlined suggestions back hillary.jett(a)icann.org by midnight UTC on Sunday, July 19. Thank you, Mathieu, Thomas, León -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Interested in the IANA Stewardship Transition? LEARN MORE <https://www.icann.org/stewardship-accountability> . STAY UPDATED <https://www.icann.org/stewardship-accountability#status> . FOLLOW <https://twitter.com/icann> . ENGAGE <https://www.icann.org/stewardship-accountability#involved> . Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org From: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> Date: Saturday, July 18, 2015 at 3:17 PM To: Cheryl Langdon-Orr <langdonorr(a)gmail.com> Cc: Hillary Jett <hillary.jett(a)icann.org>, Steve DelBianco <sdelbianco(a)netchoice.org>, Ergys Ramaj <ergys.ramaj(a)icann.org>, Jordan Carter <jordan(a)internetnz.net.nz>, Mathieu Weill <mathieu.weill(a)afnic.fr>, "acct-staff(a)icann.org" <acct-staff(a)icann.org>, "Burr, Becky" <Becky.Burr(a)neustar.biz>, "Thomas Rickert (thomas(a)rickert.net)" <thomas(a)rickert.net> Subject: Re: Draft communiqué for review Attached some suggested adjustments Best regards, León > El 18/07/2015, a las 15:07, Cheryl Langdon-Orr <langdonorr(a)gmail.com> > escribió: > > Ok on a quick review but I would like to see if we could get a GAC filter run > on what is said re GAC issues, can we ask one or two proponents of views??? > > On 18/07/2015 2:58 pm, "Hillary Jett" <hillary.jett(a)icann.org> wrote: >> Hi all, >> >> Please find attached a draft communiqué for your review and input. >> >> Thanks! >> Hillary >> >> -- >> Hillary Jett >> Communications Coordinator >> Internet Corporation for Assigned Names and Numbers (ICANN) >> >> Interested in the IANA Stewardship Transition? >> LEARN MORE <https://www.icann.org/stewardship-accountability> . STAY UPDATED >> <https://www.icann.org/stewardship-accountability#status> . FOLLOW >> <https://twitter.com/icann> . ENGAGE >> <https://www.icann.org/stewardship-accountability#involved> . >> >> Mobile: +1 (202) 674-3403 <tel:%2B1%C2%A0%28202%29%20674-3403> >> Email: hillary.jett(a)icann.org >> >>

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