August 2015 - Accountability-Cross-Community

Notes-Recordings-Transcript links for WP4 Meeting | 28 August
by Brenda Brewer Aug. 28, 2015

Aug. 28, 2015

Hello all, The notes, recordings and transcripts for the WP-4 meeting on 28 August will be available here: https://community.icann.org/x/J4RYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM: Check wording and implications of without reservation - Without reservation does not encourage legal liability. We are making it complicated. Let's favor simple statements. ACTION ITEM: Leon to refine high level drafting to reflect today's discussion and to begin working on explanatory note to document how WP4 reached this wording. - Commitment to human rights won't cause any court cases if all this would be carefully further formulated in policies. ACTION ITEM: Share progress report with Subgroup to incorporate any additional feedback there may be ACTION ITEM: Leon to set up google doc Notes David McAuley on phone. Review of Draft High Level Objective WP4 discussed proposal received on list to modify text to not restrict it to United Nations Feedback: - Suggest defining high level commitment along the lines of what we have discussed for WS1 and fleshing it out as part of Work Stream 2. - We need to refine wording put together. - Do not understand that we give support without reservation to United Nations principles. It would be better to confirm support for International Human Rights and leave it to WS2 to define what we are going to use to operationalize that (UN compact, etc). Open it up to wider set of documents - Suggested language: HEREBY AFFIRMS its support without reservation for internationally recognized fundamental human rights, and intends to develop ..... --> Concerned about support without reservation. What could that imply? It could be a point of discussion for the group - Stick to paragraph 151 - Do not think putting commitment to human rights will be risk of law suit for ICANN - Need to explore options and caveats around meaning of without reservations - Without reservation is superfluous ACTION ITEM: Check wording and implications of without reservation - Without reservation does not encourage legal liability. We are making it complicated. Let's favor simple statements. ACTION ITEM: Leon to refine high level drafting to reflect today's discussion and to begin working on explanatory note to document how WP4 reached this wording. - Commitment to human rights won't cause any court cases if all this would be carefully further formulated in policies. --> We have common understanding that it would not be opening door to lawsuits ACTION ITEM: Share progress report with Subgroup to incorporate any additional feedback there may be ACTION ITEM: Leon to set up google doc - What is the procedure to reach consensus/what are the next steps? --> Within 1 or 2 calls, we could have product for group to review/discuss - is there any use in possibly looking at slightly rewording article 4 of the articles of incorporation to make a more explicit reference to HR? --> That is a possibility. - Changing the art of incorporation entails another process (and was not included in draft report of CCWG) Documents Presented * <https://community.icann.org/download/attachments/56132647/Human%20Rights%20… 0Aug.pdf?version=1&modificationDate=1440772825330&api=v2> Human Rights subgroup timeline_24 Aug.pdf * <https://community.icann.org/download/attachments/56132647/Human%20Rights%20… per%20%281%29.pdf?version=1&modificationDate=1440772776026&api=v2> Human Rights Briefing_Discussion paper (1).pdf

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Fwd: Jones Day Impact Analysis of CCWG-Accountability Second Draft Proposals
by Mathieu Weill Aug. 28, 2015

Aug. 28, 2015

FYI, following up on interactions with the Board. -------- Message transféré -------- Sujet : Jones Day Impact Analysis of CCWG-Accountability Second Draft Proposals Date : Thu, 27 Aug 2015 23:37:51 +0000 De : Theresa Swinehart <theresa.swinehart(a)icann.org> Pour : Mathieu Weill <mathieu.weill(a)afnic.fr>, Thomas Rickert <thomas(a)rickert.net>, León Sánchez Ambía <leonfelipe(a)sanchez.mx> Copie à : Fadi Chehade <fadi.chehade(a)icann.org>, Steve Crocker <steve.crocker(a)icann.org>, bruce.tonkin(a)melbourneit.com.au <bruce.tonkin(a)melbourneit.com.au> Dear Mathieu, Thomas, Leon, Consistent with the Board's preliminary comments to share external counsel's inputs received, please find here the link to the Jones Day impact analysis that has been submitted to the public comment forum. The link is at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdf5bBqNG… Kind regards, Theresa

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Re: [CCWG-ACCT] CCWG Briefing to the Board | 22:00 UTC | 31 August 2015
by Dr Eberhard W Lisse Aug. 27, 2015

Aug. 27, 2015

This setting up of meetings on short notice without consulting with or discussion in the plenum is not accountable. el -- Sent from Dr Lisse's iPad mini > On Aug 27, 2015, at 22:31, Brenda Brewer <brenda.brewer(a)icann.org> wrote: > > CCWG Briefing to the Board – Monday, 31 August 2015 from 22:00 – 23:30 UTC > Time zone converter here > > Adobe Connect: https://icann.adobeconnect.com/accountability/ > > The dial-in details are below - please let acct-staff(a)icann.org know if you require a dial-out. > _______________________________________________________________ > Participant passcode: CCWG > > For security reasons, the passcode will be required to join the call. > _______________________________________________________________ > > Dial in numbers: > COUNTRY Number Toll Free Number > ARGENTINA 0800-777-0519 > AUSTRALIA ADELAIDE 61-8-8121-4842 1-800-657-260 > AUSTRALIA BRISBANE 61-7-3102-0944 1-800-657-260 > AUSTRALIA CANBERRA 61-2-6100-1944 1-800-657-260 > AUSTRALIA MELBOURNE 61-3-9010-7713 1-800-657-260 > AUSTRALIA PERTH 61-8-9467-5223 1-800-657-260 > AUSTRALIA SYDNEY 61-2-8205-8129 1-800-657-260 > AUSTRIA 43-1-92-81-113 0800-005-259 > BELGIUM 32-2-400-9861 0800-3-8795 > BRAZIL 0800-7610651 > CHILE 1230-020-2863 > CHINA CHINA – A 86-400-810-4789 10800-712-1670 > CHINA CHINA – B 86-400-810-4789 10800-120-1670 > COLOMBIA 01800-9-156474 > CZECH REPUBLIC 420-2-25-98-56-64 800-700-177 > DENMARK 45-7014-0284 8088-8324 > ESTONIA 800-011-1093 > FINLAND Land Line 106-33-203 0-800-9-14610 > FINLAND Mobile 09-106-33-203 0-800-9-14610 > FRANCE LYON 33-4-26-69-12-85 080-511-1496 > FRANCE MARSEILLE 33-4-86-06-00-85 080-511-1496 > FRANCE PARIS 33-1-70-70-60-72 080-511-1496 > GERMANY 49-69-2222-20362 0800-664-4247 > GREECE 30-80-1-100-0687 00800-12-7312 > HONG KONG 852-3001-3863 800-962-856 > HUNGARY 06-800-12755 > INDIA 000-800-852-1268 > INDONESIA 001-803-011-3982 > IRELAND 353-1-246-7646 1800-992-368 > ISRAEL 1-80-9216162 > ITALY 39-02-3600-6007 800-986-383 > JAPAN OSAKA 81-6-7739-4799 0066-33-132439 > JAPAN TOKYO 81-3-5539-5191 0066-33-132439 > LATVIA 8000-3185 > LUXEMBOURG 352-27-000-1364 > MALAYSIA 1-800-81-3065 > MEXICO 001-866-376-9696 > NETHERLANDS 31-20-718-8588 0800-023-4378 > NEW ZEALAND 64-9-970-4771 0800-447-722 > NORWAY 47-21-590-062 800-15157 > PANAMA 001-800-5072065 > PERU 0800-53713 > PHILIPPINES 63-2-858-3716 > POLAND 00-800-1212572 > PORTUGAL 8008-14052 > RUSSIA 8-10-8002-0144011 > SINGAPORE 65-6883-9230 800-120-4663 > SLOVAK REPUBLIC 421-2-322-422-25 > SOUTH AFRICA 080-09-80414 > SOUTH KOREA 82-2-6744-1083 00798-14800-7352 > SPAIN 34-91-414-25-33 800-300-053 > SWEDEN 46-8-566-19-348 0200-884-622 > SWITZERLAND 41-44-580-6398 0800-120-032 > TAIWAN 886-2-2795-7379 00801-137-797 > THAILAND 001-800-1206-66056 > UNITED KINGDOM BIRMINGHAM 44-121-210-9025 0808-238-6029 > UNITED KINGDOM GLASGOW 44-141-202-3225 0808-238-6029 > UNITED KINGDOM LEEDS 44-113-301-2125 0808-238-6029 > UNITED KINGDOM LONDON 44-20-7108-6370 0808-238-6029 > UNITED KINGDOM MANCHESTER 44-161-601-1425 0808-238-6029 > URUGUAY 000-413-598-3421 > USA 1-517-345-9004 866-692-5726 > VENEZUELA 0800-1-00-3702 > > > <mime-attachment.ics>

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Fwd: Summary of next steps
by Thomas Rickert Aug. 27, 2015

Aug. 27, 2015

All, please find below a summary of the proposed steps kindly sent by Bruce Tonkin. Best, Thomas > > Hello Mathieu, Thomas and León, > > Thanks for joining the call today at short notice. > > Here is my summary of next based on what I heard on the call: > > (1) ICANN will post a blog with an update on the work the Board is doing to produce its public comments on the last CCWG proposal > > (2) ICANN will post the advice it has received from its external counsel - Jones Day. The Board does not endorse this advice - but is simply posting it so that we are transparent about information we have received. > > (4) The ICANN Board will hold a 90 min call with the CCWG for the CCWG to brief the Board on its proposal, and also provide an opportunity for members of the CCWG to respond to the Jones Day advice > > (5) The ICANN Board will then hold a separate call - e.g. 3 hours - to share its current feedback on the proposal. The particular focus will be on which aspects of the proposal that in the Board's opinion are sufficiently defined for implementation via bylaws changes etc, and those parts of the proposal that in the Board's opinion have some gaps that require further detail before they can be implemented in full via the bylaws etc and should be handled in work stream 2. As part of potentially moving some further work to work stream 2, the Board will also share some ideas of what could be included in work stream 1 (e.g some additional bylaws language) that provide a bridge to the changes envisaged in work stream 2. E.g. some of the items in work stream 2 could be partially implemented in bylaws changes as part of work stream 1. > > (6) There will also be an opportunity for a follow up 3 hours call if needed. > > (7) The Board will post its final comments in writing in the public comment forum, that will take into account any feedback received from the calls with the CCWG. > > (8) The Board is offering the opportunity for the CCWG to meet with the Board face-to-face on 23-24 Sept in Los Angeles if the CCWG feels that would be useful to their work. Most Board members will be able to attend face-to-face as they will be travelling to Los Angeles for meetings for the CEO search (25 Sept) and also a Board workshop (26-28 Sept) that we hold between ICANN meetings. > > The ICANN staff will confirm dates and times for the various meetings above. > > It would be helpful if we receive an early indication of interest of a face-ot-face meeting so both Board members and the CCWG members can make travel plans. > > Regards, > Bruce Tonkin > > > >

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call with the Board
by Thomas Rickert Aug. 27, 2015

Aug. 27, 2015

All, this is just to let you know that we just finished a call with the Board, which we were invited to yesterday. The purpose of the call was to discuss how the constructive dialogue between the Board and the CCWG can best be continued. We will follow up with a more detailed report within the next few hours. Best Thomas ___________________________________________________________ Thomas Rickert, Attorney at Law Director Names & Numbers ------------------------------------- eco - Verband der deutschen Internetwirtschaft e.V. Lichtstraße 43h 50825 Köln Fon: +49 (0) 221 - 70 00 48 - 0 Fax: +49 (0) 221 - 70 00 48 - 111 E-Mail: thomas.rickert(a)eco.de Web: http://www.eco.de --------------------------------------------------- eco - Verband der deutschen Internetwirtschaft e.V. Geschäftsführer: Harald A. Summa Vorstand: Prof. Michael Rotert (Vorsitzender), Oliver Süme (stv. Vorsitzender), Klaus Landefeld, Thomas von Bülow, Felix Höger Vereinsregister: Amtsgericht Köln, VR 14478 Sitz des Vereins: Köln

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Re: [CCWG-ACCT] Regarding possible face-to-face meeting in LA
by Alan Greenberg Aug. 27, 2015

Aug. 27, 2015

I believe a f2f meeting WOULD be useful, but I could not attend on the currently suggested dates. Alan At 26/08/2015 06:04 PM, Bruce Tonkin wrote: >Note that the Los Angeles dates are not locked >in I iimagine they could be moved +/- a few days. > >Also the CCWG could decide to have a >face-to-face meeting in LA for its own purposes >in Sept. The benefit is that meeting >facilities, and staff are available in that time >frame, The CCWG could decide that there is no >need to actually have any separate session with >the Board during its face-to-face meeting, but >Board members are at least likely to sit in the >room and listen to the CCWG discussions in that time frame. > >We are just trying to plan out some dates for >phone calls and face-to-face sessions - and the >content of those calls and sessions will evolve in the next few weeks. > >Regards, >Bruce Tonkin > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Regarding possible face-to-face meeting in LA
by Bruce Tonkin Aug. 26, 2015

Aug. 26, 2015

Note that the Los Angeles dates are not locked in – I imagine they could be moved +/- a few days. Also the CCWG could decide to have a face-to-face meeting in LA for its own purposes in Sept. The benefit is that meeting facilities, and staff are available in that time frame, The CCWG could decide that there is no need to actually have any separate session with the Board during its face-to-face meeting, but Board members are at least likely to sit in the room and listen to the CCWG discussions in that time frame. We are just trying to plan out some dates for phone calls and face-to-face sessions - and the content of those calls and sessions will evolve in the next few weeks. Regards, Bruce Tonkin

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Blog: Updating our Community on our Review of the CCWG-Accountability Proposal
by Grace Abuhamad Aug. 26, 2015

Aug. 26, 2015

Original link: https://www.icann.org/news/blog/updating-our-community-on-our-review-of-the- ccwg-accountability-proposal The Board is deeply engaged in reviewing the CCWG-Accountability proposal and has actively participated in the process. Consistent with our commitment to transparency, we would like to share with the Community the steps in our review process. Last week, the ICANN Board submitted a preliminary set of comments <http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00006. html> to the CCWG-Accountability Public Comment forum. The Board remains committed to engaging and working with the CCWG on solutions to address concerns raised in its preliminary set of comments. A subset of ICANN Board Members and Staff Members have been meeting in Washington, DC on Tuesday and Wednesday this week to further consider the CCWG proposal and commence a review of an impact analysis from ICANN's external counsel. As part of this meeting, the group held a call together with the CCWG Chairs. For full transparency and to clarify the basis for the review points and comments,ICANN will share the impact analysis and publish it in the CCWG Public Comment forum. The Board welcomes feedback from the CCWG on the impact analysis as it finalizes its responses to the CCWG proposal in the Public Comment forum. Next week, consistent with the CCWG request, the Board will have an open teleconference with the CCWG to help inform the Board's development of its comments to be submitted into the Public Comment forum before the close of the comment period on 12 September. Call details will be announced so that anyone in the community may participate. Finally, in light of the importance of these discussions, we propose that the CCWG-Accountability hold a public meeting in Los Angeles in late September to continue the dialogue with the Board on the CCWG proposal. As part of the ICANN community, we will continue to work constructively to help the CCWG finalize the proposal to achieve a successful IANA Stewardship transition and an ICANN with enhanced accountability. We remain appreciative of the CCWG's valuable work.

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Proposed Mission & Core Values: Could they interfere with ICANN enforcement of contracts?
by Steve DelBianco Aug. 26, 2015

Aug. 26, 2015

On our Tuesday CCWG call, I raised questions from the BC and IPC about whether the new Mission & Core Values could be interpreted to prevent ICANN from enforcing certain aspects of registrar and registry contracts. Here’s how I framed the question: Under our proposal, Mission and Core Values really matter, since they are the standard by which an IRP could be used to challenge ICANN actions. Our proposal adds this to ICANN’s Mission in the Bylaws: ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide. The question is, could the red text be interpreted to prevent ICANN from enforcing RAA requirements on WHOIS? Or to prevent ICANN from enforcing a registry’s Public Interest Commitments to restrict registrant activities? Becky Burr and Greg Shatan seem confident that contract enforcement is NOT a form of “regulation of services”. But we need to explain why we’re so sure of that, and perhaps add some text to make it abundantly clear. Also, contracts that are negotiated between ICANN and registry operators may include provisions that are not the result of bottom-up, multistakeholder processes. Such as the PIC specs, for example. Could ICANN be prevented from enforcing those provisions under the revised Core Value #5? (below) Employ open, transparent and bottom-up, multistakeholder policy development processes, led by the private sector, including business stakeholders, civil society, the technical community, and academia that (i) seek input from the public, for whose benefit ICANN shall in all events act, (ii) promote well-informed decisions based on expert advice, and (iii) ensure that those entities most affected can assist in the policy development process On Tuesday’s call, we discussed developing language clarifying that contract terms and contract enforcement are NOT content regulation. Below is the reply from Greg Shatan and Becky Burr to our emails, which occurred before the CCWG call. We may also want to seek help from our legal team. From: Becky Burr Date: Tuesday, August 25, 2015 at 2:04 AM I’m fine with Greg’s suggestion, that is what we meant J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932<tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> From: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> Date: Tuesday, August 25, 2015 at 12:17 AM We (IPC) have always taken the position that contract enforcement is not regulation. We have discussed this and the highlighted language should not be used to prevent ICANN from enforcing any terms of any contracts, including those relating to WHOIS or PICs. The essence of "regulation" is that it is a rule or order prescribed by an authority. A provision that is the result of an agreement between two or more parties is not prescribed. A consensus policy developed by a multistakeholder community is also not regulation, as it not prescribed solely by ICANN the corporation. I am confident these are rational and correct views. However, if you ask me whether I'm concerned that other interpretations will be advanced that would limit WHOIS compliance enforcement and PICS compliance enforcement, then my answer is, yes I am. I would welcome clarifying language. That language should be somewhere where it is clear that it must be referred to when interpreting the bylaws. I'm not sure exactly where that sort of interpretive language or "legislative history" should be, but it's necessary. Otherwise, I fear we are opening up a whole avenue for new challenges based on novel theories -- one could advance a perfectly decent argument that all consensus policy is regulation, depending on where you draw the line between "ICANN the corporation" and "ICANN the community governance ecosystem." On another note, I am curious to know more about Leon's thinking that this is interrelated with the Human Rights discussion. I have to admit I had not thought along those lines before, but I would not be so quick to dismiss it. Finally, on re-reading the proposed bylaws language for the umpteenth time, I see something an ambiguity that concerns me. The language reads: ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide. What does the word "they" (4 words from the end) refer to? Does it refer to "services that use the Internet's unique identifiers" or does it refer to the "unique identifiers" themselves, or both? I'm confident that it was meant to refer to the services, and that it was not meant to refer to the unique identifiers. However, there are those who argue that "unique identifiers" (i.e., domain names) are content. It's a short step from that ambiguity to an argument that would attack the ability to make and enforce policy relating to domain names, at least to the extent that they constitute "content". This could strike at RPMs, such as UDRP and URS, as well as the WHOIS and PICS issues above. As a result, I suggest that we revise the language as follows: ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that SUCH SERVICES carry or provide. I look forward to discussing these issues further. I will try to join the call in a couple of hours, but I am on vacation with my family and doing a 2-4 am call from our hotel room is not going to make me very popular tonight or a good travel companion or driver tomorrow.... Greg

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Re: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values
by Burr, Becky Aug. 26, 2015

Aug. 26, 2015

Dear Jorge, I will attempt to insert an explanatory column this morning. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, August 26, 2015 at 1:43 AM To: Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>>, "alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>" <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>, Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: AW: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values Dear Becky, Thank you very much for this very useful comparison. I wonder whether a third column with an objective impact assessment of the changes would be available, in order to better understand what each and every change intends to achieve specifically and what impact this would have on current ICANN activities and operations. If this would to be done I would recommend that the explanation is inserted directly into the column and that we refrain from just inserting references to sections in the report as this makes the reading and understanding of the changes much more difficult. In addition to the foregoing, perhaps it would be useful to extend this comparison to any other specific Bylaw changes proposed in the Report, in order to benefit from a complete picture of what is being proposed at this level in one single document. Best regards, Jorge Cancio Von: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:-bounces@icann.org>] Im Auftrag von Burr, Becky Gesendet: Dienstag, 25. August 2015 22:31 An: Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Betreff: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values I’ve put together a chart with the requested comparison. Hope it helps. Alice, I assume someone will post as appropriate Thanks, Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: Monday, August 24, 2015 at 5:04 PM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Call with advisors Dear all, This is to inform you that as part of your outreach and public comment process, a call will be held on Monday, 31 August - 13:00-14:00 UTC to collect CCWG-Accountability Advisors' input on the Second Draft Proposal. May we also take this opportunity to remind you that your third webinar is scheduled for tomorrow – Tuesday, 25 August – 18:00-20:00 UTC – see https://www.icann.org/news/announcement-2015-08-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_ann…> for details. Webinar Q&As on your second draft proposal are compiled on a wiki page at: https://community.icann.org/pages/viewpage.action?pageId=54695403<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa…> Thank you, Kind regards Alice

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