September 2015 - Accountability-Cross-Community

Review of Jones Day Analysis from Sidley & Adler
by Gregory, Holly Sept. 3, 2015

Sept. 3, 2015

Dear Co-Chairs (Mathieu, Thomas and Leon) and CCWG Members and Participants, Attached please find our comments on the Jones Day chart, which we have attached to our original high level review memo. We have organized our comments to the Jones Day chart in the following manner: We have added a column on the far right hand side with our comments. We have also – through red-line strikeouts and blue additions – provided clarifications and corrections to the other columns. We strongly recommend that this be posted publicly in relation to the Jones Day document so that observers have the chance to review, and we also recommend that it be provided to the ICANN Board. We will provide it directly to ICANN inside counsel and Jones Day this afternoon. Kind regards, Holly, Rosemary and the Sidley and Adler Teams HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1.212.839.5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

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Proposed WHOIS language
by Bruce Tonkin Sept. 3, 2015

Sept. 3, 2015

Hello All, Below is some suggested language regarding WHOIS reviews for consideration by the CCWG when considering what to incorporate into the bylaws regarding the AoC reviews. Note the Board has no plans to cancel the current AoC - so the language in the AoC - still stands until the community and NTIA wish to change it. This language however tries to contemplate an environment where we are introducing a new gTLD Directory Service as a result of policy development within the GNSO, as well as most likely continuing to run the existing WHOIS service for some time. Regards, Bruce Tonkin ICANN commits to enforcing its policy relating to the current WHOIS and any future gTLD Directory Service, subject to applicable laws, and working with the community to explore structural changes to improve accuracy and access to gTLD registration data, as well as consider safeguards for protecting data. This Review includes a commitment that becomes part of ICANN Bylaws, regarding enforcement of the current WHOIS and any future gTLD Directory Service policy requirements. The Board shall cause a periodic Review to assess the extent to which WHOIS/Directory Services policy is effective and its implementation meets the legitimate needs of law enforcement, promotes consumer trust, and safeguards data. The Review Team shall assess the extent to which prior Review recommendations have been completed, and the extent to which implementation has had the intended effect. This periodic Review shall be convened no less frequently than every five years, measured from the date the Board took action on previous review recommendations.

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Your input needed - Doodle poll - Sept F2F
by Alice Jansen Sept. 3, 2015

Sept. 3, 2015

Dear all, Please record your availability for a face-to-face meeting in September (or early october) via this doodle poll - http://doodle.com/c8iexds666hv6ygt We would be very grateful if you could add you input by Monday, 7 September - 23:59 UTC. Thanks Best Alice

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Question to ICANN Directors on this list
by Alan Greenberg Sept. 3, 2015

Sept. 3, 2015

This is a personal message (not on behalf of the ALAC) and targeted at the voting directors on this list. We have been told regularly that if the community has the power to remove individual directors, and particularly if those appointed by SO/ACs can be removed by sole action of the entity that appointed them, that this would impinge on the independence of directors and particularly, those directors threatened with the potential of removal would act differently, presumably to appease their communities or protect their right to remain an ICANN director. If I counted correctly, there are eleven voting directors on this list, four appointed by AC/SOs and seven by the NomCom. I think I know most of you to some extent, and some I have worked closely with or observed for quite a number of years. My own perspective is that if you were confronted with a situation where you had to pander to the community or do what you thought was right, it would be a moderately easy choice, and it would be to do what you thought was right. Would you consult and discuss? Certainly. Would you change your opinion in the face of a good argument, I hope so. But would you just give in to protect your position? For those of you that I know, not very likely, perhaps you would move in the opposite direction! If my assessment is correct, then the question becomes do we believe that SO/ACs will deliberately appoint people who are malleable and will vote as their SO/AC desires instead of making decisions on behalf of ICANN as a whole. I would contend that there is nothing to prevent them doing so now. If there is strong evidence of a problem, then we should take action regardless of changes proposed. If not, then perhaps the problem is not as large as some presume. Given all that, what am I misunderstanding and what is the problem with the power to remove directors, a power that I suspect will be used as often as the current board power to unilaterally remove directors and most liaisons without cause (https://www.icann.org/resources/pages/governance/bylaws-en/#VI-11) Alan

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FW: UPDATE: Notes from CCWG/Board call
by Brenda Brewer Sept. 3, 2015

Sept. 3, 2015

Hello all, In addition to the information below, please see CCWG Wiki page: https://community.icann.org/x/xIZYAw for attendance, recordings, questions, Adobe chat, and transcript (soon to be posted) for the CCWG/Board call on 2 September. Best, Brenda From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Grace Abuhamad Sent: Wednesday, September 02, 2015 8:30 PM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] Notes from CCWG/Board call Dear all, Here are some high-level notes from the call today. Staff will pull the questions from the chat transcript and prepare a FAQ-type document per the Chairs' instructions. Best, Grace CCWG/Board Dialogue Call 2 September at 22:00 UTC Steve presented introductory remarks: http://mm.icann.org/pipermail/accountability-cross-community/2015-September…. Chris outlined a CCWG-Accountability Proposal Delivery Framework (see email here:http://mm.icann.org/pipermail/accountability-cross-community/2015-Sept…) 1. Develop Fundamental Bylaws and Process for Modification (including ICANN's Mission and Core Values; AOC reviews; Budget and Ops and Strat Plans and process for Fundamental Bylaws) 2. IRP (2013 Standard of Review; commitment to work on IRP) 3. Expand Reconsideration Process 4. Establish new Multistakeholder Enforcement Mechanism (MEM) (challenges against Board action on fundamental Bylaws; binding arbitration process funded by ICANN) 5. Community is involved in developing of Bylaws changes, and budgets, op plans and Strat plans 6. Board Removal/Recall (pre-service letters) 7. Bring AOC reviews into Bylaws 8. Fulfill ICG Contingencies 9. Institutionalize in Bylaws the current practice of Board/GAC consultation requirement used only over consensus advice 10. Identify and commit to a process for defining continuous improvement work how the Board will consider those recommendations Comments and questions: * What are some unintended consequences? Capture is a big one. * How are Board proposals tested or better than the CCWG proposal? The Board doesn't propose a change to governance structure * Enforceability is not sole reason for membership. There was motivation for legal person and binding outcome as well * The 10-point proposal covers all elements of the CCWG proposal without the membership model for enforceability. Instead, the Board proposes a Multistakeholder Enforcement Mechanism. * Kavouss: under existing structure, the community has no power. The Board is trying to maintain this power and using NTIA as an excuse. * Fadi: The Board is embracing community powers and accepting binding arbitration Board is not rendering judgement on the Membership model. * Board will move to membership model if not possible to do all the community requirements in current model. * There is a need for the CCWG to understand what the weaknesses of its proposal are and why the Board proposal is better * One weakness with the model is that the exact membership hasn't been defined yet within the sole member model * Anything perceived by the US as an increase in government role will not be accepted. * The CCWG does not agree and understand why a shift is needed. Actions and next steps: 1. Board to provide detailed proposals in writing to the CCWG. Would be beneficial if this could come with legal analysis as well as rationale and any prior work on the impact analysis of the Board's implementation proposal. 2. Then, the CCWG will certify a request for its lawyers to review this proposal and check for CCWG and CWG requirements 3. In the CCWG remit to consider what parts of the proposal need to be taken on board while remaining an open process where Board will remain engaged. 4. The lawyers (ICANN, Sidley, Adler, and Jones Day) should start a dialogue to review the Board proposal. Do we want to schedule any more calls or small group interactions or a F2F? Before the CCWG decides on this, the CCWG needs to understand the Board's comments better. Public statement for reporters? * We can acknowledge that there was constructive dialogue * The CCWG is willing to understand what Board's recommendation is * We need to make sure the statements today do not overturn or prematurely compromise the CCWG's work to date The Board will endeavor to get comments into the Public Comment Forum ASAP.

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Notes from CCWG/Board call
by Grace Abuhamad Sept. 3, 2015

Sept. 3, 2015

Dear all, Here are some high-level notes from the call today. Staff will pull the questions from the chat transcript and prepare a FAQ-type document per the Chairs' instructions. Best, Grace CCWG/Board Dialogue Call 2 September at 22:00 UTC Steve presented introductory remarks: http://mm.icann.org/pipermail/accountability-cross-community/2015-September/ 005160.html. Chris outlined a CCWG-Accountability Proposal Delivery Framework (see email here:http://mm.icann.org/pipermail/accountability-cross-community/2015-Septe mber/005161.html) 1. Develop Fundamental Bylaws and Process for Modification (including ICANN's Mission and Core Values; AOC reviews; Budget and Ops and Strat Plans and process for Fundamental Bylaws) 2. IRP (2013 Standard of Review; commitment to work on IRP) 3. Expand Reconsideration Process 4. Establish new Multistakeholder Enforcement Mechanism (MEM) (challenges against Board action on fundamental Bylaws; binding arbitration process funded by ICANN) 5. Community is involved in developing of Bylaws changes, and budgets, op plans and Strat plans 6. Board Removal/Recall (pre-service letters) 7. Bring AOC reviews into Bylaws 8. Fulfill ICG Contingencies 9. Institutionalize in Bylaws the current practice of Board/GAC consultation requirement used only over consensus advice 10. Identify and commit to a process for defining continuous improvement work how the Board will consider those recommendations Comments and questions: * What are some unintended consequences? Capture is a big one. * How are Board proposals tested or better than the CCWG proposal? The Board doesn¹t propose a change to governance structure * Enforceability is not sole reason for membership. There was motivation for legal person and binding outcome as well * The 10-point proposal covers all elements of the CCWG proposal without the membership model for enforceability. Instead, the Board proposes a Multistakeholder Enforcement Mechanism. * Kavouss: under existing structure, the community has no power. The Board is trying to maintain this power and using NTIA as an excuse. * Fadi: The Board is embracing community powers and accepting binding arbitration Board is not rendering judgement on the Membership model. * Board will move to membership model if not possible to do all the community requirements in current model. * There is a need for the CCWG to understand what the weaknesses of its proposal are and why the Board proposal is better * One weakness with the model is that the exact membership hasn¹t been defined yet within the sole member model * Anything perceived by the US as an increase in government role will not be accepted. * The CCWG does not agree and understand why a shift is needed. Actions and next steps: 1. Board to provide detailed proposals in writing to the CCWG. Would be beneficial if this could come with legal analysis as well as rationale and any prior work on the impact analysis of the Board¹s implementation proposal. 2. Then, the CCWG will certify a request for its lawyers to review this proposal and check for CCWG and CWG requirements 3. In the CCWG remit to consider what parts of the proposal need to be taken on board while remaining an open process where Board will remain engaged. 4. The lawyers (ICANN, Sidley, Adler, and Jones Day) should start a dialogue to review the Board proposal. Do we want to schedule any more calls or small group interactions or a F2F? Before the CCWG decides on this, the CCWG needs to understand the Board¹s comments better. Public statement for reporters? * We can acknowledge that there was constructive dialogue * The CCWG is willing to understand what Board¹s recommendation is * We need to make sure the statements today do not overturn or prematurely compromise the CCWG¹s work to date The Board will endeavor to get comments into the Public Comment Forum ASAP.

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Perhaps a variation...
by Alan Greenberg Sept. 3, 2015

Sept. 3, 2015

The At-Large group advising on Accountability and IANA matters met today (as we have been twice weekly for the last while). It is becoming increasingly clearer that the CMSM model still has a LOT of rough edges that need to be finalized prior to putting forward our proposal as the accountability part of the IANA transition, and my recollection is that in Buenos Aires we were told in no uncertain terms that the proposal needed to be complete and fully implementable prior to being accepted by the NTIA and if necessary, Congress. I fear that the current plan will not meet that target. So, although I am hesitant to suggest we switch gears at this time, I am not sure we have a real alternative if we want to effect the transition. The At-Large group was very supportive of considering a variation of what we now have, specifically, a Community Mechanism as a Sole Designator (CMSD). Following the Buenos Aires meeting, and prior to the CMSM model being introduced, many in the CCWG were willing to consider the Empowered Designator model, and this is a variant that uses the simplified CMSx structure but with the lighter-weight designator mechanism which will be significantly easier to set up. It also addresses the concerns of some with moving to a Membership model for ICANN. I am sending this on my own, but with the knowledge that the concept had a lot of support in my community. Alan

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Steve's opening remarks
by Bruce Tonkin Sept. 2, 2015

Sept. 2, 2015

Hello All, Here is a written version of Steve's opening remarks - that maybe easier to follow. Regards, Bruce Tonkin 1. We endorse the goal of enforceability, and we believe that it is possible to implement it along with the key elements of the proposal, without a wholesale change of ICANN's model of governance. We stand ready to work with you on an implementation approach that achieves your goals without causing instability or unintended consequences. 2. The proposal contains important improvements for ICANN's accountability. In principle, we support enhancements to ICANN's accountability, as reflected in the four building blocks of an empowered community, the ICANN board, principles, and independent appeals mechanisms. We also understand that the drive for a sole membership model is the community requirement of enforcement. We are committed to continuing to participate in the community process to develop a consensus proposal that meets the community's requirements by the time of the ICANN meeting in Dublin. 3. We have concerns on how to implement the current 2nd draft proposal as it stands, without causing unintended consequences of instability and institutional ineffectiveness, increasing the potential for capture, changing the stable/accepted advisory role of governments at ICANN, or crossing perceived political lines. We also refer you to concerns shared by Board members both in Buenos Aires and then again in writing on 7 July 2015, regarding unintended consequences that could weaken ICANN's governance model; impact ICANN's financial stability, causing possible budget paralysis among other potential ramifications; and impact ICANN's Board by turning it into, for example, a representative body or parliament. 4. We want to work together to achieve the elements of your proposal - including enforceability - within the community's timeline and without causing those unintended consequences. We are not suggesting a new proposal, but we have some initial ideas about how to deliver on this. 5. In addition, we suggest building on processes for addressing on-going improvement work so that ICANN remains in a continuous improvement cycle. We believe this process for continuous improvement can be built using the same NTIA criteria that have been the foundation of this transition.

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Re: [CCWG-ACCT] Perhaps a variation...
by Alan Greenberg Sept. 2, 2015

Sept. 2, 2015

I will try to address all of the points raised. I am my colleagues had no illusions about how my message would be received. We are at a point where some of us feel that there are too many rough edges to get this proposal sufficiently done to allow it to meet what we believe are the NTIA criteria, in the time we have. So we were looking at alternatives, and this was one that seems to make some sense. If we are wrong and the current proposal can be put in shape, dandy. But I think it will be a tough haul. It is not a magic bullet, and I agree that getting closure without going through another full comment period would be a challenge. Regarding what does it simplify. Takeout the membership option removes a number of critical changes. Perhaps easy for the lawyers to draft, but a challenge to get right given the onerousness of not getting all of the details perfect. It removes the budget and plan veto (which I understand some consider mandatory) and that eliminates a large chuck of work. At the same time, it preserves most of the CMSM structure that we have fleshed out (but still need to specify processes in detail as we have heard from advisors and Board members. I do not believe that CWG requirements are an issue. The IANA budget will be protected by Bylaw and that can still be done, including the community control over it. The overall message I was trying to send is that after careful analysis of the 2nd draft proposal, I and we find a lot of problems that need to be addressed and are not at all convinced that we see how it can be done by Dublin. I felt I had an obligation to raise the issue publicly, regardless of the scorn from some. As I already implied, if we are the only ones with concerns, then let's keep going forward with what we have, and hope that At-Large is crying wolf (see https://en.wikipedia.org/wiki/Cry_Wolf for the cultural reference). Alan At 01/09/2015 10:26 PM, Alan Greenberg wrote: >The At-Large group advising on Accountability and IANA matters met >today (as we have been twice weekly for the last while). It is >becoming increasingly clearer that the CMSM model still has a LOT of >rough edges that need to be finalized prior to putting forward our >proposal as the accountability part of the IANA transition, and my >recollection is that in Buenos Aires we were told in no uncertain >terms that the proposal needed to be complete and fully >implementable prior to being accepted by the NTIA and if necessary, >Congress. I fear that the current plan will not meet that target. > >So, although I am hesitant to suggest we switch gears at this time, >I am not sure we have a real alternative if we want to effect the transition. > >The At-Large group was very supportive of considering a variation of >what we now have, specifically, a Community Mechanism as a Sole >Designator (CMSD). > >Following the Buenos Aires meeting, and prior to the CMSM model >being introduced, many in the CCWG were willing to consider the >Empowered Designator model, and this is a variant that uses the >simplified CMSx structure but with the lighter-weight designator >mechanism which will be significantly easier to set up. It also >addresses the concerns of some with moving to a Membership model for ICANN. > >I am sending this on my own, but with the knowledge that the concept >had a lot of support in my community. > >Alan

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Final version - chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values
by Alice Jansen Sept. 2, 2015

Sept. 2, 2015

Dear all, Please find attached the final version of the synopsis Becky prepared. The document can also be found on your second draft proposal wiki page at https://community.icann.org/pages/viewpage.action?pageId=53783460 We will have a link to the chart added to the public comment period box - https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-20…. Thanks Best Alice 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 5:02 PM To: "Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>" <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>>, Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>, "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: AW: AW: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values Dear Beck, many thanks for your prompt and responsive answer. I feel many will benefit from this added explanations. Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Mittwoch, 26. August 2015 15:59 An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: AW: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values 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<http://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@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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