September 2015 - Accountability-Cross-Community

Blog: ICANN Board Submits Final Comments to CCWG-Accountability Public Comment
by Grace Abuhamad Sept. 11, 2015

Sept. 11, 2015

Original link: https://www.icann.org/news/blog/icann-board-submits-final-comments-to-ccwg-a ccountability-public-comment ICANN Board Submits Final Comments to CCWG-Accountability Public Comment <https://www.icann.org/news/blog/icann-board-submits-final-comments-to-ccwg -accountability-public-comment#> <https://www.icann.org/news/blog/icann-board-submits-final-comments-to-ccwg- accountability-public-comment#> <https://www.icann.org/news/blog/icann-board-submits-final-comments-to-ccwg- accountability-public-comment#> <https://www.icann.org/news/blog/icann-board-submits-final-comments-to-ccwg- accountability-public-comment#> <https://www.icann.org/news/blog/icann-board-submits-final-comments-to-ccwg- accountability-public-comment#> <https://www.icann.org/news/blog/icann-board-submits-final-comments-to-ccwg- accountability-public-comment#> It has been a very busy week for both many in the community, including the ICANN Board. Tuesday marked the conclusion of the ICG public comment period, which saw over 150 comments submitted. The ICANN Board submitted comments on the ICG Proposal, which can be found here <https://comments.ianacg.org/pdf/submission/submission121.pdf> [PDF, 133 KB]. Additionally, after weeks of extensive dialogue with the community, the ICANN Board has submitted <http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00045. html> its final input to the CCWG-Accountability 2nd Draft Proposal Public Comment forum. The Board is proceeding in accordance with the principles we outlined in our 2014 resolution <https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2. d> addressing what the Board would do in the event it disagreed with a CCWG recommendation. The elements of the Board submission are: * A brief summary of its public comment input * A comments matrix of forty-seven CCWG-Accountability proposal elements and their assessment by the ICANN Board * A short memo describing a proposed approach for community enforceability for consideration * A twenty-question FAQ of the proposed approach for community enforceability As we have stated previously <https://www.icann.org/news/blog/working-together-through-the-last-mile> , the Board supports the improvements to ICANN's accountability contained in the CCWG-Accountability's 2nd Draft Proposal. We endorse the goal of enforceability of these accountability mechanisms, and we believe that it is possible to implement the key elements of the proposal. We want to work together to achieve the elements of the proposal within the community's timeline while meeting the NTIA requirements. We have heard some concerns from the community regarding the Board's intent in presenting new ideas for the CCWG's consideration. The contributions by the Board are not meant to be a "counter proposal," but rather as suggestions for consideration to build upon the CCWG's impressive work. We encourage the community to read not only ours, but all comments submitted <http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/> to the public comment forum. There are still 24 hours to submit comments on the proposal, and we encourage any interested stakeholder to do so. Once again, on behalf of the Board, I want to thank the CCWG-Accountability for all of its work leading to the 2nd Draft Proposal and for its engagement throughout this significant process. This is an important discussion for the entire community as it reaches consensus, and we hope to continue this dialogue in Los Angeles later this month at the CCWG-Accountability face-to-face meeting <http://mm.icann.org/pipermail/accountability-cross-community/2015-September /005301.html> .

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any news on a LA face-to-face mtg for CCWG?
by Robin Gross Sept. 11, 2015

Sept. 11, 2015

Dear Co-Chairs, Is there any news on the possible face-to-face meeting in LA later this month for CCWG that we discussed and for which we filled-out a Doodle poll last week? We need to come to a decision on this now in order to be able to make travel plans. Thank you. Best, Robin

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On behalf of CoChairs - September Face-to-Face Meeting
by Alice Jansen Sept. 11, 2015

Sept. 11, 2015

On behalf of CCWG-Accountability Cochairs All, Thank you for your patience regarding the question of a f2f meeting later this month. We would now like to confirm that we will be holding a CCWG meeting on Sept 25-26. Certainly, remote participation will be possible. While we will work on an agenda with you as we get closer to the meeting, it became apparent from comments received that a f2f meeting will be useful: * to continue the analysis of comments in sub-teams; * work on finalizing our consensus recommendations; * advancing the documentation and writing up the rationale for our recommendation as well as; * confirm the messaging and presentation of our recommendations so they can be understood more easily. We plan to have comms and graphical experts from Xplane on site. We confirm LA as the location in order to make it easier for interested Board members to join the meeting. Best regards Thomas, Mathieu, León

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Re: [CCWG-ACCT] On behalf of CoChairs - September Face-to-Face Meeting
by Roelof Meijer Sept. 11, 2015

Sept. 11, 2015

Hang on! >>"We confirm LA as the location in order to make it easier for interested Board members to join the meeting. “ The way I understand it, LA was considered to enable a (public but bilateral) exchange with the board on our proposal and their additional/alternative ideas. The above text suggests that’s not going to happen. If I read that correctly, I feel that flying the whole CCWG to LA to (only) “make it easier for interested board members to join” is not a sound decision. Best, Roelof From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: vrijdag 11 september 2015 17:37 To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] On behalf of CoChairs - September Face-to-Face Meeting On behalf of CCWG-Accountability Cochairs All, Thank you for your patience regarding the question of a f2f meeting later this month. We would now like to confirm that we will be holding a CCWG meeting on Sept 25-26. Certainly, remote participation will be possible. While we will work on an agenda with you as we get closer to the meeting, it became apparent from comments received that a f2f meeting will be useful: •to continue the analysis of comments in sub-teams; •work on finalizing our consensus recommendations; •advancing the documentation and writing up the rationale for our recommendation as well as; •confirm the messaging and presentation of our recommendations so they can be understood more easily. We plan to have comms and graphical experts from Xplane on site. We confirm LA as the location in order to make it easier for interested Board members to join the meeting. Best regards Thomas, Mathieu, León

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Re: [CCWG-ACCT] [ccnso-members] Re: [ccTLDcommunity] ICANN Statement Regarding IANA Intellectual Property Rights
by Nigel Roberts Sept. 11, 2015

Sept. 11, 2015

And THAT is the difference between mechanismes that a civilian lawyer would propose compared with common layers (like me). The point is if this is done by contractual obligation, well, no one HAS to comply with a contractual obligation. You can refuse. (Someone did it do me just today). THEN you have to sue. It can drag on. All the while the true IANA is kept out of their name. But if the property ownership is located with a trusted third party, and the licence comes to an end (say by a change of IANA function manager), then no enforcement is needed -- the property results to its beneficial owner automatically who can relicence it. Similar aims, different processes. I know which I prefer. On 18/08/15 19:57, Peter Vergote wrote: > Nigel and all, > > I think that ICANN could continue to be the owner of the mentioned domain names upon condition that there is a clear and unambiguous contractual commitment that the ownership of those domain names will be transferred to the new IANA Functions Operator in the event that this would no longer be ICANN. > > In practice you achieve pretty much the same as with your suggestion with a trusted third party but I think the above is probably easier to implement. > > The same should apply for all trademarks relating to IANA and currently in ownership by ICANN. > > For the record, when we are talking about IP rights, we are in fact referring to the trademarks and alikes. Domain name registrations are not IP rights it’s more or less a form of possession but in legal nature not an IP right. Domain names can be claimed back through UDRP on the basis of a matching IP right e.g. a trademark. > > Best, > > Peter > > Peter Vergote > Legal & Corp. Affairs Manager > +32 16 29 89 28 > +32 474 790096 > www.dnsbelgium.be <http://www.dnsbelgium.be/> > > > > > > > > > > On 18/08/15 19:41, "Nigel Roberts" <nigel(a)channelisles.net> wrote: > >> >> Steve >> >> You are right and for that reason ICANN must not have the IP rights to >> the IANA.ORG domain name, or indeed unfettered control (as this >> discussion implies. >> >> Insteadm it must have a licence allowing it to be used day-to-day *BY* >> ICANN, as long as it is the IANA contractor. It must have de-facto >> day-to-day operational control. But that's it. >> >> Therefore the Registrant of IANA.ORG needs to become a trusted third >> party that holds the registration ON TRUST (in the legal sense) for the >> beneficial owner (call that RightsCo if you like), who provides an >> unlimited-use license to ICANN (or any other company that might get the >> IANA contract in the future) under the terms of its carrying out the >> IANA function. >> >> >> >> On 18/08/15 17:20, Steve Crocker wrote: >>> Becky, >>> >>> Not quite right. I believe there are three trademarks, but far more important than the trademarks is the control of the iana.org domain name. Despite the thousands of words of email devoted to the trademarks, in the case of IANA they’re of only modest, at best, practical importance. The domain name, however, is a key piece of the operation. >>> >>> Steve >>> >>> >>> >>> On Aug 18, 2015, at 12:15 PM, Burr, Becky <Becky.Burr(a)neustar.biz> wrote: >>> >>>> I think that the IP rights in question are limited to the IANA trademark, >>>> which the USG transferred to ICANN in 1999 or so. >>>> >>>> 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 / www.neustar.biz >>>> >>>> >>>> >>>> >>>> >>>> >>>> On 8/18/15, 3:11 AM, "Dr Eberhard Lisse" <el(a)lisse.NA> wrote: >>>> >>>>> Gabi, >>>>> >>>>> thank you for posting this. >>>>> >>>>> All, >>>>> >>>>> I want to place on record, that this needs SIGNIFICANT thought, and >>>>> considerably more detail than what is provided here. >>>>> >>>>> In particular what actual Intellectual Property Rights do they mean, >>>>> EXACTLY? And I would like to see them in a numbered list :-)-O >>>>> >>>>> Most certainly will the root zone (database) on which the NSF is >>>>> performed, and the contacts database (DEF) NOT fall under this. >>>>> >>>>> >>>>> Without having thought this through to the end, however, I think this is >>>>> a WS1 item for the CCWG Accountability, and needs to be dsicussed on >>>>> tonight's call. >>>>> >>>>> >>>>> Fortunately, we have time, the transition has been postponed to >>>>> 2016-09-30 last Friday >>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ntia.doc.gov_blog_ >>>>> 2015_update-2Diana-2Dtransition&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFO >>>>> ifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH_5RfpEaBO3-n >>>>> jFirHo3sc&s=anSaVt_Y73vPTokKGDZODQOgEpcSMCQYfov_F17TFqo&e= >>>>> >>>>> greetings, el >>>>> >>>>> >>>>> On 2015-08-18 09:16, Gabriella Schittek wrote: >>>>>> Dear all, >>>>>> >>>>>> ICANN has released a statement regarding the IANA Intellectual Property >>>>>> Rights: >>>>>> >>>>>> === >>>>>> ICANN Statement Regarding IANA Intellectual Property Rights (IPR)15 >>>>>> August 2015 >>>>>> ICANN supports the IANA Stewardship Transition Group (ICG) proposal and >>>>>> the underlying proposals from the Community Working Group (CWG), the >>>>>> Consolidated RIR IANA Stewardship Proposal (CRISP) team and the Planning >>>>>> for the IANA/NTIA Transition (IANAPLAN) working group. >>>>>> The ICANN Board is focused on how to implement the Intellectual Property >>>>>> Rights (IPR) component of the proposal. The Board believes that for >>>>>> stability and pragmatic operational reasons, the IANA Functions Operator >>>>>> must have operational control over the IANA.ORG >>>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__iana.org_&d=AwICAg&c >>>>>> =MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=x >>>>>> EvMoIyL67gEqHJRspVNVH_5RfpEaBO3-njFirHo3sc&s=4i-xg4Yjhd2u-vOhYZeKXLv1fPbl >>>>>> EqzcJUU3MkUOa58&e= > domain. >>>>>> During the transition, ICANN is prepared to transfer full ownership of >>>>>> the IANA-related trademarks to a neutral third party mutually agreed >>>>>> among the operational communities with the understanding that ICANN, as >>>>>> the current IANA Functions Operator, will be granted license to those >>>>>> trademarks and ICANN will maintain operational control of the IANA.ORG >>>>>> >>>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__iana.org_&d=AwICAg&c >>>>>> =MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=x >>>>>> EvMoIyL67gEqHJRspVNVH_5RfpEaBO3-njFirHo3sc&s=4i-xg4Yjhd2u-vOhYZeKXLv1fPbl >>>>>> EqzcJUU3MkUOa58&e= > domain for as long as ICANN remains the IANA >>>>>> Functions Operator. >>>>>> If the transfer during the transition affects the timeline, we advise >>>>>> delay until after the transition. In that event ICANN is ready to hold >>>>>> the IPR as interim measure but commits to transfer it within 120 days >>>>>> after the neutral third party is identified by the operational >>>>>> communities. >>>>>> We believe this is neutral and in the public interest. We look forward >>>>>> to hearing from anyone in the community. >>>>>> >>>>>> === >>>>>> >>>>>> See >>>>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_a >>>>>> nnouncement-2D2015-2D08-2D15-2Den&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62c >>>>>> JFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH_5RfpEaB >>>>>> O3-njFirHo3sc&s=kkb9yxPPFQICrdDt6_by0xp5V6I-9OPO6Ap5eKlTttQ&e= >>>>>> >>>>>> >>>>>> Kind regards, >>>>>> >>>>>> Gabi >>>>>> >>>>>> >>>>>> >>>>>> _______________________________________________ >>>>>> ccTLDcommunity mailing list >>>>>> ccTLDcommunity(a)cctld-managers.org >>>>>> >>>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.lists.cctld-2Dman >>>>>> agers.org_mailman_listinfo_cctldcommunity&d=AwICAg&c=MOptNlVtIETeDALC_lUL >>>>>> rw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH >>>>>> _5RfpEaBO3-njFirHo3sc&s=hj0Oa8KWrcB67Gt8uRpbH-r3gLgTrpp6HraDXEfJoYU&e= >>>>>> >>>>>> To unsubscribe please send a blank email to >>>>>> ccTLDcommunity-unsubscribe(a)lists.cctld-managers.org >>>>>> >>>>> >>>>> -- >>>>> Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) >>>>> el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) >>>>> PO Box 8421 \ / >>>>> Bachbrecht, Namibia ;____/ >>>>> _______________________________________________ >>>>> ccTLDcommunity mailing list >>>>> ccTLDcommunity(a)cctld-managers.org >>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.lists.cctld-2Dmana >>>>> gers.org_mailman_listinfo_cctldcommunity&d=AwICAg&c=MOptNlVtIETeDALC_lULrw >>>>> &r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH_5R >>>>> fpEaBO3-njFirHo3sc&s=hj0Oa8KWrcB67Gt8uRpbH-r3gLgTrpp6HraDXEfJoYU&e= >>>>> >>>>> To unsubscribe please send a blank email to >>>>> ccTLDcommunity-unsubscribe(a)lists.cctld-managers.org >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>>

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Re: [CCWG-ACCT] [ccTLDcommunity] ICANN Statement Regarding IANA Intellectual Property Rights
by Steve Crocker Sept. 11, 2015

Sept. 11, 2015

Carrie, Though those categories were the original motivation for those top level domains, there haven't been any restrictions on .org, .net or .com since long before ICANN was created. (I don't know the precise history of whether there were formal limitations and, if so, whether there were formal changes to their rules. It's probably easy to find, but it was ancient history by the time ICANN was created.) Re your question about the domain names IANA.org, IANA.com and IANA.net, their registration information is publicly available. ICANN currently holds them. (Ignore the capitalization. That's my iPhone trying to be helpful.) Steve Sent from my iPhone > On Sep 11, 2015, at 9:52 AM, carrie devorah <icannbackup(a)yahoo.com> wrote: > > Mr. Crocker > I want you to explain how if .net is for networks and .org is for organizations how it is that ICANN permits selling of .org to non organizations and .net for networks, not adressing the IANA, but in general. Is this not a violation by ICANN > > > > On Friday, September 11, 2015 9:47 AM, carrie devorah <icannbackup(a)yahoo.com> wrote: > > > Then who does own them? > > > > > On Tuesday, August 18, 2015 1:12 PM, Steve Crocker <steve(a)shinkuro.com> wrote: > > > Greg, > > Thanks. I stand corrected re the domain names. iana.com and iana.net are obviously protective covering for iana.org and hence included in whatever arrangements will be made regarding iana.org. > > Steve > > > >> On Aug 18, 2015, at 1:07 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: >> >> Here are the facts, based on public records. I believe that Sidley has confirmed these with ICANN counsel as well. >> >> ICANN currently owns three trademarks associated with IANA: IANA, INTERNET ASSIGNED NUMBERS AUTHORITY and the IANA logo. ICANN owns three United States trademark registrations, one for each of these trademarks. ICANN was the original applicant for these three registrations. These three registrations are detailed in the attached document. >> >> The University of Southern California assigned the three trademarks to ICANN, along with earlier registrations for two of the three trademarks (the logo was not covered by a registration or application at that time). After ICANN procured new registrations for the two word marks, and a registration for the logo, the two registrations acquired from USC were allowed to lapse (likely because the new registrations are broader and more protective than the original USC registrations). This is also detailed in the attached document. The USC-ICANN assignment is also attached. >> >> (Note that, under US trademark law, trademark rights arise from use rather than registration. A trademark registration confirms and strengthens the owner's trademark rights, but does not create the trademark right. That is why I have referred to the "trademarks" and the "trademark registrations" separately.) >> >> ICANN also owns three domain names associated with IANA: iana.org, iana.com and iana.net. All three domain names seem to lead to the same content. >> >> I hope this helps. >> >> Greg Shatan >> >> On Tue, Aug 18, 2015 at 12:41 PM, Dr Eberhard Lisse <el(a)lisse.na> wrote: >> Becky, Steve, >> >> thanks for the input. >> >> Unfortunately belief is not at issue here, neither are the >> trademarks. >> >> They are uncontroversial in our context, though it is important to >> know who the actual owner of the marks is, in order to be able to >> give them away :-)-O. >> >> It must be made quite clear exactly what items of Intellectual >> Property Rights we are talking about/will be transferred, so a >> numbered list will be helpful. >> >> el >> >> >> >> On 2015-08-18 17:24, Steve Crocker wrote: >> > >> > On Aug 18, 2015, at 12:22 PM, Burr, Becky <Becky.Burr(a)neustar.biz> wrote: >> > >> >> Ah. Presumably this was originally registered by Jon/ISI. >> > >> > Yes, I think so. >> > >> > >> >> >> >> J. Beckwith Burr >> [...] >> >> On 8/18/15, 9:20 AM, "Steve Crocker" <steve(a)shinkuro.com> wrote: >> >> >> >>> Becky, >> >>> >> >>> Not quite right. I believe there are three trademarks, but far >> >>> more important than the trademarks is the control of the >> >>> iana.org domain name. Despite the thousands of words of email >> >>> devoted to the trademarks, in the case of IANA they¹re of only >> >>> modest, at best, practical importance. The domain name, >> >>> however, is a key piece of the operation. >> >>> >> >>> Steve >> >>> >> >>> >> >>> >> >>> On Aug 18, 2015, at 12:15 PM, Burr, Becky >> >>> <Becky.Burr(a)neustar.biz> wrote: >> >>> >> >>>> I think that the IP rights in question are limited to the IANA >> >>>> trademark, which the USG transferred to ICANN in 1999 or so. >> >>>> >> >>>> J. Beckwith Burr >> [...] >> -- >> Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) >> el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) >> PO Box 8421 \ / >> Bachbrecht, Namibia ;____/ >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> <IANA Trademark and Domain Name Information.docx><assignment-tm-2283-0068.pdf> > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > >

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Re: [CCWG-ACCT] Regarding the Board's Comments and It's Obligations
by Aikman-Scalese, Anne Sept. 10, 2015

Sept. 10, 2015

Hi Megan, I could not agree more regarding your assertion that “governments and public authorities are those best placed to determine public policy issues”. I thought I heard Fadi say on the call last week that he thought the 5 votes accorded the GAC in the Community Mechanism Sole Member recommendation might be viewed negatively by NTIA as “undue government control”. (Perhaps I misheard or was wrong about this?) The discussion relates to one of the NTIA conditions for transfer. If representatives of particular governments share their views with the Board directly or if the Board receives a letter directly from a public authority that is not a government, the content of such communications could be considered to be policy advice that informs the judgment of individual Board members, whether such advice is provided formally or informally. The Board does not live in a vacuum and they are all experienced and have multiple contacts in this arena. All of this advice may figure into individual votes of directors in the current nonprofit corporation structure (which is not a membership corporation structure) since individual directors exercise their independent professional judgment when voting. They also, I am sure, accord deference to formal policy advice as required by the By-Laws. As we have seen in the past, such advice may be conflicting. My own views on various matters, e.g. GAC safeguards, IOC/RC names, .africa, .amazon, are not particularly relevant to this discussion of organizational structure. My point is I think it would be unrealistic to say that the proposed Community Mechanism Sole Member non-profit membership corporation structure is somehow more vulnerable to “government control” than the existing non-profit corporation structure. In fact I think there are those who would assert that the proposed membership corporation structure is less vulnerable in this regard in that it would arguably make the Board more “accountable” to the Community as a whole due to the remedies provided through enforcement of certain membership rights. The foregoing notwithstanding, I personally would retain the current status of GAC consensus advice (however consensus is defined) and classify that as a “fundamental by-law”, and especially so if the GAC chooses not to exercise 5 votes in the Sole Member. With respect to resolving policy differences in the Community BEFORE they reach the Board level, I think we are all hopeful that the new policy tools of GNSO Input, GNSO Guidance, and Expedited PDP (along with the renewed efforts at establishing communication lines between the GAC and the GNSO) will bear fruit going forward. Anne [cid:image001.gif@01D0EBCD.56C860E0] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP | One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman(a)LRRLaw.com<mailto:AAikman@LRRLaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: Megan.Richards(a)ec.europa.eu [mailto:Megan.Richards@ec.europa.eu] Sent: Thursday, September 10, 2015 1:17 AM To: Aikman-Scalese, Anne; sdelbianco(a)netchoice.org; gregshatanipc(a)gmail.com; ceo(a)auda.org.au Cc: accountability-cross-community(a)icann.org; Maciej.TOMASZEWSKI(a)ec.europa.eu; Cristina.MONTI(a)ec.europa.eu; Thomas.Schneider(a)bakom.admin.ch Subject: RE: [CCWG-ACCT] Regarding the Board's Comments and It's Obligations Thanks for this but there are two aspects that I don't understand and I quote: 3. "The Board receives policy advice from the GNSO, the GAC, ALAC, and others. The advice received by the Board is not even limited to advice received from the Community. It may in fact receive advice from individual governments or entities such as the European Commission. In many situations, the desire to move forward even in light of strong differences of opinion has resulted in Board policy being made where the Community has not reached consensus. In this regard, individual Board members have also been put in the position of assessing various risks – e.g. the risk of a transfer of authority to some other entity." Could you give some examples of the kind of advice identified in red ? I am not aware of such as in principle all such advice is officially provided via the GAC Communiqué and endorsed by all GAC members (or where there are dissenting opinions to same those are provided as well) 6. "The proposed structure also appears to be designed to avoid undue government influence, but I have not heard anyone on the GAC say they are willing to change the current status of GAC advice under the By-Laws." Can I interpret this as suggesting that GAC advice and the current status of GAC advice is not problematic and would in any event not develop into "undue government influence" or are you implying that more needs to be done to avoid such "undue influence"? (It seems to me that there is no "undue government influence" as GAC Advice is on public policy issues and none of that has changed – governments and public authorities are those best placed to determine public policy issues) Many thanks Megan Richards Megan RICHARDS Principal Adviser [cid:image001.gif@01CF9F7C.EC1CDF70] European Commission Communications Networks, Content and Technology Directorate-General Office BU 25 6/24, rue de la Loi 200 B-1049 Brussels/Belgium +32-2-296-24-43(direct line) megan.richards(a)ec.europa.eu<mailto:megan.richards@ec.europa.eu> This message is intended for the use of the addressee only and may contain information that is privileged and confidential. If you are not the intended recipient, you are notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by return of this e-mail. This communication does not constitute a formal commitment on behalf of the Commission neither can it be considered to state an official position of the European Commission. From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Wednesday, September 09, 2015 9:13 PM To: 'Steve DelBianco'; Greg Shatan; Chris Disspain Cc: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Regarding the Board's Comments and It's Obligations Steve, Greg, et al, Considering all that has been said, I harken back to Dr. Crocker’s comment in last week’s call. He said, very accurately, in my opinion, that the CCWG proposal leans toward changing the Board from a “Board of a Directors to a body of elected representatives.” I believe that it is the nature of this particular proposed change that is driving the bulk of the Board’s resistance to the Community Mechanism Sole Member structure. My perspective (having only been involved since 2010) on this change in roles is as follows: 1. It seems to me that in many situations, the Board has stated that it does not make policy and does not want to make policy, but rather that the Community makes policy and that this is the beauty of the Multi-Stakeholder Model. 2. Based on my limited 5 year experience as well as active participation in the GNSO Policy & Implementation Working Group where we studied various examples of policy-making prior to making our recommendations, I have observed that the Board does in fact make policy and it especially does so when constituencies and stakeholders cannot agree on what the final policy should be. (I apologize for coming “late to the party”, but this was due to active participation in the Policy & Implementation Working Group.) 3. The Board receives policy advice from the GNSO, the GAC, ALAC, and others. The advice received by the Board is not even limited to advice received from the Community. It may in fact receive advice from individual governments or entities such as the European Commission. In many situations, the desire to move forward even in light of strong differences of opinion has resulted in Board policy being made where the Community has not reached consensus. In this regard, individual Board members have also been put in the position of assessing various risks – e.g. the risk of a transfer of authority to some other entity. 4. Further evidence that the Board makes policy comes in the form of the creation of the New gTLD Program Committee, which was required to be free of conflicts of interest precisely because it was known they would make policy when making decisions. In this regard, the NGPC was delegated full Board authority. 5. In its Accountability proposal, the CCWG-ACCT seeks to establish a structure which is much more in line with the Board’s stated desire not to make policy. It brings the stakeholders together in a forum that provides for voting and exercise of powers if the Board does not execute policy as the Sole Member believes it was intended to be executed. 6. The proposed structure also appears to be designed to avoid undue government influence, but I have not heard anyone on the GAC say they are willing to change the current status of GAC advice under the By-Laws. 7. A possible difficulty with the proposed structure is that bringing together the Community in the form of the Community Mechanism Sole Member does not necessarily mean that there will be agreement among stakeholders with respect to establishing and executing policy. 8. Under the current structure, the Board resolves differences among stakeholder groups by making judgments based on input received from all those who provide input. It is essentially this function which I think the Board is reluctant to relinquish to the voting structure of the Sole Member. The directors are qualified and experienced professionals who believe they serve on the Board for the purpose of exercising their best independent professional judgment in matters of concern to the Community and the world with respect to the functioning of the Internet. 9. It therefore gives Board members great pause when they see that even in the best exercise of their independent professional judgment, they are subject to recall via the Sole Member structure and their view may be that this recall could, under certain circumstances, be unfounded. 10. Greg clarified this issue when he said there is a difference between a Board that serves a non-profit MEMBERSHIP corporation (proposed structure) and a Board that serves a non-profit corporation (current structure). However, the Community has been complaining that the Board serves the corporation itself (as it is bound to do) and not the Community and that this is precisely why important Accountability measures are in order prior to the IANA transition. 11. We may be learning that despite a public stance previously taken that the Board does not make policy because the Community makes policy, the Board in fact is most valuable to the Community in its role of resolving differences when the Community is unable to resolve those differences itself. 12. We are very definitely at a “fork in the road” with respect to the role of the ICANN Board of Directors. It is particularly important that everyone be extremely candid about this. I personally would anticipate that if the recommendations of the CCWG-ACCT are adopted, the composition of the Board and the type of Board members being sought (and willing to serve) may well be different from the individuals previously recruited and currently serving. 13. Having said all of the above, I continue to support the CCWG – ACCT Community Mechanism Sole Member proposal – precisely because it is actually a closer reflection of what everyone has been saying is SUPPOSED to happen in the unique and proper functioning of the Multi-Stakeholder Model. If we really believe in this MS Model and believe that it actually works, we should be ready to adopt the Community Mechanism Sole Member structure. 14. On the topic of potential undue government influence and the NTIA view of such influence, the GAC has not yet said it will participate in the Sole Member with a voting role. If I were representing a GAC government, I would have serious concerns about this level of participation as it appears to me it represents a conscious choice to submit to the jurisdiction of the California courts and statutes – or at least arguably so since the Sole Member is the sole member of a California non-profit unincorporated association. (In this regard, I still did not receive an answer with respect to my question regarding the applicability of CA Corporations Code Section 18630 which provides as follows: “Notwithstanding any other provision of this chapter, a member or person in control of a nonprofit association may be subject to liability for a debt, obligation, or liability of the association under common law principles governing alter ego liability of shareholders of a corporation, taking into account the differences between a nonprofit association and a corporation.” ) 15. Because of the recommended formalization of the Sole Member structure, I believe the Sole Member should have a separate budget for enforcement of its member rights under the California statutes. Further, I believe individual directors should agree, upon taking office, not to sue the Sole Member. 16. If the Board continues in its current role with respect to resolving differences and making policy, I think there is actually a higher risk that the control of the Internet and the IANA functions could be subject to undue government influence. (Witness .africa?) Nonetheless, I do personally believe that GAC Advice should continue to have special status under the By-Laws, whether or not the GAC participates in active voting in the Sole Member. The GAC has essentially been the only influence with any “teeth” in the direction of consumer protection in the launching of new gTLDs and that consumer protection is absolutely critical to promoting trust in the worldwide web long term. 17. With respect to the Board’s recommended use of binding arbitration as a dispute resolution mechanism, this bears discussing with the Community as a whole in the Face to Face meeting. However, it is unquestionable that in practice, arbitration can take a very long time and especially in relation to both sides settling on an arbitrator or arbitrators and waiting for availability of particular arbitrators who may be qualified to arbitrate disputes in this highly specialized arena. Further, not all arbitration rules allow for issuance of injunctive relief. The availability of expedited injunctive relief in court would seem absolutely critical to the process of enforcement by the Sole Member of Community powers. In the private sector, we often conclude agreements which provide for arbitration but do not prohibit seeking injunctive relief pending such arbitration decisions. I apologize in advance for any statements made out of lack of knowledge or experience. So far in my ICANN education and orientation, it seems that the only way to contribute and to learn as a relative newcomer is to jump in with both feet and be prepared to be embarrassed by someone. I support discussing the Board’s concerns in a face-to-face meeting of the CCWG-ACCT in Los Angeles September 25 and 26. I also agree with those who have observed that this meeting should be set in the very near future. Anne [cid:image001.gif@01D0EBCD.56C860E0] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP | One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman(a)LRRLaw.com<mailto:AAikman@LRRLaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Wednesday, September 09, 2015 6:03 AM To: Greg Shatan; Chris Disspain Cc: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Regarding the Board's Comments and It's Obligations Fully agree with your description of ‘participation’, Greg. As I said on yesterday’s CCWG call, now is the time for the full board and its lawyers to engage in some ‘participatory’ engagement, by being specific about perceived risks and problems with CCWG’s proposal. That will allow CCWG to react to those specifics, either thru explanation or adjustments to the proposal. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Greg Shatan Date: Tuesday, September 8, 2015 at 11:54 PM To: Chris Disspain Cc: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] Regarding the Board's Comments and It's Obligations Chris, First, I would like to say that you and Bruce Tonkin have been models of participation. Other board members have participated from time to time, but you have been through the process with us on a fairly regular basis -- both in calls and on the email list. As far as the call with the Board as a whole, I think "participation" would have looked far more collaborative and a lot less like we were being overruled. It would have looked more honest where there were points of disagreement. It would have looked like a Board looking for ways to make our proposal work, rather than excising significant elements. It would have looked like a Board being more specific and explicit about points of concern so that these could be solved, instead of relying on vague characterizations that could not even be identified with enough specificity to work through them. It would have looked like a give-and-take process, not the delivery of a counter-proposal. It would have felt more engaged and less scripted and spun. It would have felt like the Board was seeking understanding, rather than seeking to replace what it did not understand (or understood, but did not like). Greg On Tue, Sep 8, 2015 at 5:51 PM, Chris Disspain <ceo(a)auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Greg, We can choose to treat the Board's intervention as "participation," but it did not have the feeling of participation to me. So what would participation look like to you? Cheers, Chris On 9 Sep 2015, at 05:52 , Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Did anyone get the license plate number of the bus that "participated" with me? We can choose to treat the Board's intervention as "participation," but it did not have the feeling of participation to me. It had the feeling of the Board attempting to exercise its position of power. On Tue, Sep 8, 2015 at 3:03 PM, Seun Ojedeji <seun.ojedeji(a)gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi, Even though I would have preferred seeing board's comment earlier than now. I believe what is written below is still order. I quote a section below that may need to be in bold as well. "....if we have views on that proposal, we should participate with the community." We are still in proposal development process and board is participating in the process. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 8 Sep 2015 19:58, "Paul Rosenzweig" <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: All In preparation for our call today, I wanted to share with you the following that I pulled from the hearing that the Senate Commerce Committee held earlier this year: *** The Chairman: Will the ICANN Board send a proposal to NTIA that lessens the Board’s power or authority? Mr. Chehade: We will if the community and the stakeholders present us with a proposal. We will give it to NTIA, and we committed already that we will not change the proposal, that if we have views on that proposal, we should participate with the community. Once that proposal comes from our stakeholders, we will pass it on to NTIA as is. *** I would read this as a commitment from ICANN and the Board. 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<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> 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…> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

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Regarding the Board's Comments and It's Obligations
by Paul Rosenzweig Sept. 10, 2015

Sept. 10, 2015

All In preparation for our call today, I wanted to share with you the following that I pulled from the hearing that the Senate Commerce Committee held earlier this year: *** The Chairman: Will the ICANN Board send a proposal to NTIA that lessens the Board's power or authority? Mr. Chehade: We will if the community and the stakeholders present us with a proposal. We will give it to NTIA, and we committed already that we will not change the proposal, that if we have views on that proposal, we should participate with the community. Once that proposal comes from our stakeholders, we will pass it on to NTIA as is. *** I would read this as a commitment from ICANN and the Board. 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>

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Blog: Working Together Through The Last Mile
by Grace Abuhamad Sept. 9, 2015

Sept. 9, 2015

Original link: https://www.icann.org/news/blog/working-together-through-the-last-mile Working Together Through The Last Mile <https://www.icann.org/news/blog/working-together-through-the-last-mile#> <https://www.icann.org/news/blog/working-together-through-the-last-mile#> <https://www.icann.org/news/blog/working-together-through-the-last-mile#> <https://www.icann.org/news/blog/working-together-through-the-last-mile#> <https://www.icann.org/news/blog/working-together-through-the-last-mile#> <https://www.icann.org/news/blog/working-together-through-the-last-mile#> I'd like to thank everyone who has participated in both the CCWG briefing to the ICANN Board <https://community.icann.org/pages/viewpage.action?pageId=56132981> , and the CCWG and ICANN board dialogue <https://community.icann.org/pages/viewpage.action?pageId=56133316> . All of our dialogues over the past months have been illuminating, challenging and in my opinion, an important and true testament to the multistakeholder model as we work toward the IANA Stewardship Transition. We support the important improvements for ICANN's accountability contained in the CCWG-Accountability's 2nd Draft Proposal. We endorse the goal of enforceability of these accountability mechanisms, and we believe that it is possible to implement the key elements of the proposal. We want to work together to achieve the elements of the proposal within the community's timeline while meeting the NTIA requirements. As we enter the final days of the Public Comment period, the Board wants to be completely clear on our position. We are in agreement on key concepts set forward in the CCWG's proposal, for example: * Fundamental bylaws. * Specific requirements for empowering the community into the bylaws adoption process. * IRP enhancements. * Board and director removal. * ICANN's mission and core values. * Strengthening requirements for empowering the community in the budget, operational and strategic planning process. * The incorporation of the Affirmation of Commitments Reviews intoICANN bylaws. * Community ability to enforce the accountability mechanisms in the bylaws. We have suggestions on how these could be operationalized. With regards to the mechanisms for community enforceability, where the current proposal still warrants much detail that may not be achievable we have a suggestion on how to deliver on it in a stable way, as increased enforceability must not open up questions of, for example, capture or diminishing of checks and balances. Let's work together on operationalizing the above principles on which we agree. Once again, we are committed to providing more detail on how these ideas can be operationalized in a way that they can be implemented within the community identified time frame for the transition, as well as have sufficient tested grounds to not result in unintended consequences. During last night's discussion we shared this feedback. It was a lot of information to digest in a call (notes around opening remarks <http://mm.icann.org/pipermail/accountability-cross-community/2015-September /005160.html> , notes around 10 points <http://mm.icann.org/pipermail/accountability-cross-community/2015-September /005161.html> ), and we appreciate everyone giving our advice consideration. We are committed to submitting our comments into the Public Comment process in the next few days, and we look forward to the working with the community on further details. It is critical that we work together to build enhanced accountability forICANN and continue to refine and flesh out details of the impressive work already done by the community and complete the IANAStewardship Transition.

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Follow Up from our Conference Call RE: LA F2F
by Paul Rosenzweig Sept. 9, 2015

Sept. 9, 2015

Dear Co-Chairs I was on the line by audio only so I did not intervene when the discussion turned to Los Angeles. I am on record as thinking that an ill-prepared meeting with the Board will do more harm than good, as will a truncated one, and associate myself with Malcom on the underlying question. Leaving that aside, however, I offer the following practical observation - time is fleeting. I think that, at a minimum, the Co-Chairs need to confirm a meeting in LA (currently thought to be the 25th and 26th) no more than 2 weeks prior - i.e. no later than this Friday. I also think that, at a minimum, the substance of the Board's comments that will be the subject of discussion should be circulated no later than 1 week prior - i.e. September 18 - so that those who cannot attend in person have an adequate opportunity to express their views in response. It follows as well that I would request a meeting agenda no later than, say, the 22nd of September before everyone gets on the plane . Cheers 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>

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