September 2015 - Accountability-Cross-Community

GAO report
by Thomas Rickert Dec. 8, 2015

Dec. 8, 2015

All, The General Accountability Office hast just published its report, which you can find here: http://www.gao.gov/products/GAO-15-642 Best, Thomas --- rickert.net

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Cruz / NTIA: Time to Get Expert Advice
by Edward Morris Oct. 10, 2015

Oct. 10, 2015

Hello everybody, Some of the unknowns facing this group going forward are as much political in nature as they are substantive or procedural. Do we take the opinion and perspective of Senator Ted Cruz seriously? Is it a threat to the transition? Is there something that we can do to be responsive to the genuine concerns of Senator Cruz? Are his concerns genuine? What about the NTIA? The deference shown to Secretary Strickling among some of us here is almost Papal in nature. What did Larry say, how did Larry say it, what did he really mean when he said it but really didn't say it. It's a bit ridiculous. I admire Secretary Strickling. He's a fine civil servant. His published salary, though, is less than that of a first year associate from a decent law school at a mid sized corporate law firm. He is not the all mighty. Commerce and the NTIA are complex places. Larry has absolute control of neither. I've read here today a legal analysis of the Senator's Constitutional challenge by someone I know to be neither an American nor a lawyer. I can click both boxes and I have my views but am I sure I'm right? No. It seems everyone here has an opinion as to what the NTIA will or will not accept from us. Do any of us really know? No. Prior to the Los Angeles meeting it was suggested that we might want to hear from ICANN's lobbyists, that they could explain to us their version of political reality. We properly rejected that offer. I think we've reached the point, though, where we do need to call upon the expertise of some Washington political professionals to help guide us through this part of the process. No more guesswork by amateurs or implied threats by those with some self-interest in the matter. We're talking about who is going to run a vital part of the most powerful communications technology in human history. We need to do this right. Fortunately, we've already retained two such individuals who, if we wish, have the expertise and ability to assist us in this area. Back in the early days of this project when we were all young, innocent and hopeful :) we retained not one but two law firms to help guide us. In retrospect that decision and two firms we chose to hire were amongst the best decisions we've made in this CCWG. I have complete faith in our lawyers and that is a rarity for me. I note that one of the specific reasons we hired Sidley was for their Washington ties and expertise. During our interviews with the firm we were able to meet two of their professionals with the greatest knowledge of DC and government operations : Cam Kerry ( http://www.sidley.com/people/cameron-f-kerry) and Rick Boucher ( http://www.sidley.com/people/rick-boucher ). Both men were extremely impressive. It is time to tap their talents. We need serious advice in these areas from serious professionals. I would respectfully ask our Chairs and the full CCWG to consider inviting either Rick or Cam to Dublin to meet with the CCWG early in the week, preferably during the initial F2F. I think it's important that everyone has a chance to question them. We need this type of policy expertise from a politically astute professional who owes a duty of care to us, no one else, and whose rolodex allows him or her to reach out to those whose decisions will most impact our work. We need to know what political reality is if we are to maximise our potential as a very special and unique group dedicated to helping create a truly open and accountable governance mechanism for this small part of the networked world. Thanks for considering. Best, Ed Morris

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Is it reasonable to avoid new mechanisms?
by Avri Doria Oct. 9, 2015

Oct. 9, 2015

Hi, The Board's critique rests on a notion that the introduction of anything new in the ICANN system will be a destabilizing factor and most be avoided. This ignores the fact that by removing the NTIA backstop we destabilize the current system. It might have been possible to find a new balance (not that the old worked that well given the amount of discontent that existed prior to the CCWG process) by tweaking the system. The early work of the CCWG, however, showed that this was not enough. So we decided to bring back a notion that existed in the early ICANN design, the idea of membership. Membership has always been part of the kit that was available to ICANN in the multistakeholder model. An initial experiment met with some issues and instead of fixing that then, they threw the notion away without exploring possible tweaks to the system. As a result we are living in ICANN 2.0, a system that was imposed in a top down manner and one that was never fully accepted by those at the bottom. Now, albeit in a very different configuration, the CCWG is proposing to establish a community consensus based idea of membership. I believe that this should be given a fair analysis before rejecting it. It is also important to remember that the NTIA requirements were not a prohibition of new mechanisms or structures, but rather evidence that these structure did not increase the current risk, or fact, of capture and that they could be held to account. The Board criticism is important to look at for arguments that show the areas in which the CCWG plan either does not explain its protections against capture and its accountability checks and balances or may have gaps in these areas. If we cannot explain what we propose, or cannot close the gaps, then it becomes time to consider variations on the model or another model altogether. In my opinion, we are not there. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

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A way to avoid the 'The Single Member Can Do Anything!' problem
by Jordan Carter Oct. 5, 2015

Oct. 5, 2015

Hi all One of the pieces of feedback from Board members I heard in L.A. was a concern that basically goes like this: "The Single Member is a problematic idea because of the incredible powers it has under California law - for instance, it could even dissolve ICANN!" There were some sub-themes to this concern: - the accountability of SO/AC actors in exercising the powers intended for the CMSM - the absence of fiduciary duties on the Single Member in making its decisions - the engineering principle of minimal change at a time Focusing on the overarching concern, it was a tenet of the CCWG's Second Draft Proposal that the CMSM should be largely ruled out from exercising any of the powers the community didn't propose it had. That is, aside from the five community powers and the ability to enforce the bylaws against the Board, the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all. [The Second Draft Proposal may not have been terribly clear about this, but that's what it was driving at.] So how to resolve this? The CCWG's choice of a Single Member (following its earlier choice of multiple members) was to meet the accountability requirements the community has asked for. But nobody asked for the community to have these other powers. *Here is a suggestion.* *For the exercise of any of the Member Powers the CMSM would have (beyond those we "want" it to have), why don't we include the ICANN Board as one of the groups that has to vote / come to consensus to exercise them?* This sounds a little strange on the face of it but think it through. This seems to me to be a very simple way to avoid the problem. It acknowledges that the rights of the Member are set out in law and can't be eroded - that they can only be managed by the decisions that member is able to take. And it acknowledges that the concerns about constraining the possible actions of the member to those that are intended, should be solved. It shares power in the model in quite a nice, dare-I-say-it, "multistakeholder" way. I'd welcome others' thoughts. I'd welcome views from our lawyers about this, too. On the face of it I can't see any reason this wouldn't work in law, since the CMSM can be comprised of any set of ICANN actors. But - I Am Not A Lawyer. cheers Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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Lawyers' Meeting on Friday
by Dr Eberhard W Lisse Oct. 4, 2015

Oct. 4, 2015

Dear Co-Chairs, I understand that CCWG's Counsel met with ICANN's Counsel. I have not seen the report/minutes/notes from the meeting. Can you please ask staff to expedite transcription and posting to the list? greetings, el -- Sent from Dr Lisse's iPad mini

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Additional time in Dublin
by Alice Jansen Oct. 1, 2015

Oct. 1, 2015

Dear all, Further to the request for additional time in Dublin, ICANN staff has enquired about availability and identified three potential suggestions/options for your consideration: * We can extend your Friday, 16 October session to 08:30-18:30 (instead of the 09:00-17:00); * A full day session can be scheduled for Saturday, 17 October. Please note: the ICG has a session planned for 13:00 to 17:00 and some of you may not be in a position to join due to other sessions running simultaneously; * We can extend your Thursday AM session to 08:00-11:45 (it is currently scheduled 08:00-10:00). The CCWG-Accountability Cochairs invite you to raise any concerns or objections you may have on the list. For planning purposes, concerns should be flagged by 1 October - 23:59 UTC. Thanks, Best regards Alice

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Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
by Edward Morris Oct. 1, 2015

Oct. 1, 2015

Hi Jordan, I appreciate the spirit in which this thread is intended. --That is, aside from the five community powers and the ability to enforce the bylaws against the Board, the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all. So how to resolve this? The CCWG's choice of a Single Member (following its earlier choice of multiple members) was to meet the accountability requirements the community has asked for. But nobody asked for the community to have these other powers. I disagree with this premise with regards the inspection right. I've certainly made that a central component of what I've tried to accomplish here. Kieren has been a strong advocate, as well, calling it a "red line"; --- On 07/08/2015 11:37 PM, Kieren McCarthy wrote: A quick view specifically on "rights of inspection". I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements. It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls. (See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/) I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group. To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains. Kieren ----- I agree with Kieren. One of the reasons I've been content with putting transparency in work stream 2 is I've known the Inspection right came with membership in work stream 1. If that is to be excised then we need to do transparency in work stream 1. You can not have accountability without transparency. I've been involved in reconsideration requests where we have fought and lost in our attempts to get documents from ICANN that would have allowed us to have a chance of winning either the reconsideration or the IRP that would conceivably follow. Without access to documents many of the reforms we're proposing will be of minimal value to litigants. Of course, I await the specifics of the discovery mechanisms that will accompany the IRP and reconsideration reforms. I've watched as many "fears" of the legally uneducated became "truths" when repeated enough. I saw the concept of the derivative lawsuit, a power that should be welcomed by anyone interested in true accountability, so misconstrued and tangled CCWG members and participants acted out of fear this legal right could be used on a regular basis for anything, rather than what it is: a remedy designed for use in extreme situations as protection against double dealing and other types of corporate malfeasance. Rather than try to explain Inspection beyond what Kiernen has done above let me ask this: 1. Why don't we want the right of Inspection (aka in ICANN circles as the Auerbach rights)? 2. If we have them why do we want to create high thresholds for the use of those powers? Tell me how these two positions strengthen ICANN's accountability to a greater degree than inspection rights with low thresholds. And, perhaps most of all, where has the discussion occurred leading one and all to believe that we don't want these rights? Point to the thread, the legal advice etc. I've seen the big FUD over derivative rights. Where is something similar, or honest rejection of Inspection rights? Don't assume these are not important issues to some of us merely because we haven't been discussing them. They were in all of the proposals that have gone out for public comment. There is little need to fight for something you already have. I'm looking forward to receiving an analysis of the public comments to see this outpouring of opposition to the inspection rights. It must be there because I'm hard pressed to find extensive opposition anywhere else. Do we need these rights? Well, if we are going to dump them we need a complete revamp of ICANN's transparency policy to be done in work stream 1. No transparency, no accountability. No accountability, no transition. Best, Ed - I reproduce here California Corporations Code §8333: The accounting books and records and minutes of proceedings of the members and the board and committees of the board shall be open to inspection upon the written demand on the corporation of any member at any reasonable time, for a purpose reasonably related to such person's interests as a member. This is the heart of the Inspection right. It is so key I'll give it a name: the Anti-FIFA clause. It is a guarantee the corruption at FIFA will not happen at the new ICANN. The anti-FIFA clause is the principle reason I strongly support the Inspection right.

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Yesterday's call
by Dr Eberhard W Lisse Oct. 1, 2015

Oct. 1, 2015

Hi, can someone send a short summary of what transpired yesterday to the list? Maybe we should in fact do this for all calls? el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Re: [CCWG-ACCT] Additional time in Dublin
by James Gannon Sept. 30, 2015

Sept. 30, 2015

My personal preference would be Saturday as I already am triple booked for Friday (Leadership Training, Privacy Proxy PDP Face2Face, and CCWG) and Thursday is very busy, but I am aware this will conflict with some of my GNSO colleagues particularly councillors. I think however having a full day session may give us the best chance of making substantive progress and people may be able to join and leave as other priorities come and go. -James From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alice Jansen Date: Wednesday 30 September 2015 23:13 To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" Subject: [CCWG-ACCT] Additional time in Dublin Dear all, Further to the request for additional time in Dublin, ICANN staff has enquired about availability and identified three potential suggestions/options for your consideration: * We can extend your Friday, 16 October session to 08:30-18:30 (instead of the 09:00-17:00); * A full day session can be scheduled for Saturday, 17 October. Please note: the ICG has a session planned for 13:00 to 17:00 and some of you may not be in a position to join due to other sessions running simultaneously; * We can extend your Thursday AM session to 08:00-11:45 (it is currently scheduled 08:00-10:00). The CCWG-Accountability Cochairs invite you to raise any concerns or objections you may have on the list. For planning purposes, concerns should be flagged by 1 October – 23:59 UTC. Thanks, Best regards Alice

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Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
by Alan Greenberg Sept. 30, 2015

Sept. 30, 2015

Well that would surely simplify a model that is being criticized as being to complex. Perhaps we should establish a parallel NomCom as well, to populate 8 of the seats. Of course, we will also need accountability measures to control the parallel board. Alan At 30/09/2015 03:16 PM, Greg Shatan wrote: >We could even go so far as to suggest that the >Single Member have a board that mirrors the ICANN board, seat by seat. > >I would be curious to see the Board's response to that. > >On Wed, Sep 30, 2015 at 3:08 PM, Robin Gross ><<mailto:robin@ipjustice.org>robin(a)ipjustice.org> wrote: >Agree 100%. We would be sorely amiss in our >duty to enhance ICANN's accountability if we did >not address the concerns about transparency in decision making at ICANN. > >Robin > > >On Sep 30, 2015, at 11:26 AM, Phil Corwin wrote: > >>Transparency of Board meetings and >>deliberations is long overdue and sorely >>needed. It should be the rule with very narrow exceptions. >> >>Sunlight is the best disinfectant. >> >>Philip S. Corwin, Founding Principal >>Virtualaw LLC >>1155 F Street, NW >>Suite 1050 >>Washington, DC 20004 >><tel:202-559-8597>202-559-8597/Direct >><tel:202-559-8750>202-559-8750/Fax >><tel:202-255-6172>202-255-6172/Cell >> >>Twitter: @VLawDC >> >>"Luck is the residue of design" -- Branch Rickey >> >>Sent from my iPad >> >>On Sep 29, 2015, at 10:24 PM, Edward Morris >><<mailto:egmorris1@toast.net>egmorris1(a)toast.net> wrote: >> >>>Hi Jordan, >>> >>>I appreciate the spirit in which this thread is intended. >>> >>> >>>--That is, aside from the five community >>>powers and the ability to enforce the bylaws >>>against the Board, the other powers the >>>California law grants to member/s (document >>>inspection, dissolve the company, etc), should >>>face such high thresholds to action that they >>>can, practically speaking, never be actioned at all. >>>So how to resolve this? The CCWG's choice of a >>>Single Member (following its earlier choice of >>>multiple members) was to meet the >>>accountability requirements the community has >>>asked for. But nobody asked for the community to have these other powers. >>> >>> >>>I disagree with this premise with regards the >>>inspection right. I've certainly made that a >>>central component of what I've tried to >>>accomplish here. Kieren has been a strong >>>advocate, as well, calling it a "red line"; >>> >>>--- >>> >>>On 07/08/2015 11:37 PM, Kieren McCarthy wrote: >>>A quick view specifically on "rights of inspection". >>>I think enabling that some entity gets this right would be one of the >>>most useful of all possible accountability improvements. >>>It would - perhaps over time - pull out any motivations that might exist >>>for ICANN to be misleading or less than truthful in its reporting. This >>>is going to be especially important as ICANN receives increasingly large >>>amounts of revenue and particularly given its current weak financial >>>controls. >>>(See: >>><http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/>http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/) >>>I predict that ICANN corporate will fight hard to prevent any entity >>>from gaining this right. And that it will continue to fight hard even >>>when someone has that right. That in itself should be a good indicator >>>for why it should be a redline for the accountability group. >>>To my mind, not allowing ICANN to hide information is the epitome of >>>actual accountability. If you can't hide it, then to save on >>>embarrassment you consider how best to share it. Over time, everyone gains. >>> >>>Kieren >>> >>>----- >>>I agree with Kieren. One of the reasons I've >>>been content with putting transparency in work >>>stream 2 is I've known the Inspection right >>>came with membership in work stream 1. If that >>>is to be excised then we need to do >>>transparency in work stream 1. You can not >>>have accountability without transparency. I've >>>been involved in reconsideration requests >>>where we have fought and lost in our attempts >>>to get documents from ICANN that would have >>>allowed us to have a chance of winning either >>>the reconsideration or the IRP that would >>>conceivably follow. Without access to >>>documents many of the reforms we're proposing >>>will be of minimal value to litigants. Of >>>course, I await the specifics of the discovery >>>mechanisms that will accompany the IRP and reconsideration reforms. >>> >>>I've watched as many "fears" of the legally >>>uneducated became "truths" when repeated >>>enough. I saw the concept of the derivative >>>lawsuit, a power that should be welcomed by >>>anyone interested in true accountability, so >>>misconstrued and tangled CCWG members and >>>participants acted out of fear this legal >>>right could be used on a regular basis for >>>anything, rather than what it is: a remedy >>>designed for use in extreme situations as >>>protection against double dealing and other types of corporate malfeasance. >>> >>>Rather than try to explain Inspection beyond >>>what Kiernen has done above let me ask this: >>>1. Why don't we want the right of Inspection >>>(aka in ICANN circles as the Auerbach rights)? >>>2. If we have them why do we want to create >>>high thresholds for the use of those powers? >>>Tell me how these two positions strengthen >>>ICANN's accountability to a greater degree >>>than inspection rights with low thresholds. >>> >>>And, perhaps most of all, where has the >>>discussion occurred leading one and all to >>>believe that we don't want these rights? Point >>>to the thread, the legal advice etc. I've seen >>>the big FUD over derivative rights. Where is >>>something similar, or honest rejection of >>>Inspection rights? Don't assume these are not >>>important issues to some of us merely because >>>we haven't been discussing them. They were in >>>all of the proposals that have gone out for >>>public comment. There is little need to fight >>>for something you already have. I'm looking >>>forward to receiving an analysis of the public >>>comments to see this outpouring of opposition >>>to the inspection rights. It must be there >>>because I'm hard pressed to find extensive opposition anywhere else. >>> >>>Do we need these rights? Well, if we are going >>>to dump them we need a complete revamp of >>>ICANN's transparency policy to be done in work >>>stream 1. No transparency, no accountability. No accountability, no transition. >>> >>>Best, >>> >>>Ed >>> >>> >>>- I reproduce here California Corporations Code Â§8333: >>> >>> >>>The accounting books and records and minutes of proceedings >>>of the members and the board and committees of the board shall be >>>open to inspection upon the written demand on the corporation of any >>>member at any reasonable time, for a purpose reasonably related to >>>such person's interests as a member. >>> >>> >>>This is the heart of the Inspection right. It >>>is so key I'll give it a name: the Anti-FIFA clause. >>> >>>It is a guarantee the corruption at FIFA will not happen at the new ICANN. >>> >>>The anti-FIFA clause is the principle reason I >>>strongly support the Inspection right. >>> >>>No virus found in this message. >>>Checked by AVG - <http://www.avg.com/>www.avg.com >>>Version: 2015.0.6140 / Virus Database: 4419/10680 - Release Date: 09/22/15 >>>Internal Virus Database is out of date. >>><ATT00001.c> >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >>https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >_______________________________________________ >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] A way to avoid the 'The Single Member Can Do Anything!' problem
by Alan Greenberg Sept. 30, 2015

Sept. 30, 2015

Keith, I think that this is a pretty good summary of all of the comments that I heard as well. It is far more than just the use of statutory powers that Fadi seemed to reference at the end of yesterday's call. Alan At 30/09/2015 01:15 PM, Drazek, Keith wrote: >Thanks Nigel. > >In no particular order, my interpretation of the Board's written >comments, what we heard in Los Angeles and from Fadi yesterday is: > >-- Introducing a different governance structure, i.e. membership, is >new, untested, and cannot be proven to resist capture in the limited >time available to meet the September 2016 date. >-- Shifting authority from the Board to an untested membership body >is potentially destabilizing and will be difficult or impossible to >sell as not introducing risk at a delicate time. >-- If we're going to shift authority, we must also shift a >commensurate level of accountability, and the current SOs and ACs do >not have sufficient accountability at this time. >-- ICANN and its SOs/ACs need to be safe from capture from outside >and from within; empowering the SOs and ACs without clear safeguards >is problematic. >-- Concentrating power in a new "sole membership" body is not >balanced if it doesn't include all community members, and two groups >(SSAC and RSSAC) have said they want to remain advisory. >-- Shifting from consensus-based decision-making to reliance on a >voting structure is not consistent with the multi-stakeholder model. >-- The CCWG recommendation is too complex and difficult to >explain/understand, so we need to make smaller, incremental changes >that are more easily implemented and understood. >-- A recommendation requiring a substantial governance restructuring >will suggest that ICANN is currently broken -- a politically risky >message going into the transition. > >I'm obviously not in a position to speak for the Board, but that's >my non-legalistic reading of the concerns. I'd be happy to be >corrected if my interpretation is off-base. > >That was a reply to your question (a). I can't respond to question (b). > >Regards, >Keith > > >-----Original Message----- >From: accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] On Behalf >Of Nigel Roberts >Sent: Wednesday, September 30, 2015 12:46 PM >To: accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can >Do Anything!' problem > >Let's be Frank, here. > >I'm not entirely unreceptive to the view expressed to me by at least >one Board member regarding the idea of a quick win. > >HOWEVER, despite the fairly emphatic nature of the Board's objection >to membership model, I do not believe I have read or heard any >rationale or reasons for their, apparently unanimous, position. > >Personally I have serious doubts about the Single Member model, >although, probably, they are not the same doubts as the Board's. > >But that is the outcome of this WG, and it should not tear up months >of work without a rationale. This is simply the IFWP and history >repeating itself, otherwise. > >Apparently there is some legal difference of opinion between Sidleys >and Jones Day on the technicalities. But I do not beleive that can >be the only reason. > >So, can someone please explain, in simply, preferable non legalistic terms why > >(a) the CCWG proposal is unsuitable >(b) the Board's proposal is more suitable. > > > > That said, I'm not confident this would resolve the Board's > concerns with membership, so we will need to consider all options > available to deliver community empowerment, including variations of > the sole designator implementation. > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Recordings and Transcript links for F2F CCWG ACCT Meetings #55 and #56
by Brenda Brewer Sept. 30, 2015

Sept. 30, 2015

Hello all, The recordings and transcripts for the Face to Face CCWG Accountability meetings #55 and #56 will be posted on the Wiki as available. Day 1 (AM Session) 25 September 2015: https://community.icann.org/x/po9YAw Day 1 (PM Session) 25 September 2015: https://community.icann.org/x/W5tYAw Day 2 (AM Session) 26 September 2015: https://community.icann.org/x/qI9YAw Day 2 (PM Session) 26 September 2015: https://community.icann.org/x/x5tYAw Thank you. Kind regards, Brenda

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Efficiency vs Deluge
by Dr Eberhard W Lisse Sept. 30, 2015

Sept. 30, 2015

I see since 2015-09-28 00:00 (never mind which time zone) 223 messages (and counting) of which 5 are from me (I think :-)-O) and 4 came in during me writing this :-)-O This is not going to work. How are we going to get this to work? Somehow we must start focusing on a single issue and bring that one to a conclusion (before we start with the next one) And how are we going to do that? At the moment I only see one solution, Co-Chairs propose one issue, the plenum of members and participants consent, if we can't get consensus, we have a consensus call among the members. If we get consensus we appoint someone (Bernard Turcotte?) "moderator", to read each incoming message and if it pertains to the subject matter, re-post (forward) it to the list with a subject line consisting of one (several) key words, the name of the poster and the original subject line, ore some other method to allow access or even filter the messages on poster and keywords. That way we still have the deluge, for everybody to read but if we want can focus on the mails only pertaining to the matter at hand. Any better proposals will be greatly appreciated. el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #57 - 29 September
by Brenda Brewer Sept. 30, 2015

Sept. 30, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT meeting #57 - 29 September will be available here: https://community.icann.org/x/apxYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM - Reach out to political advisors and ask whether they can provide us with input on politic scene vis-a-vis our model. ACTION ITEM: Define scoping of this action Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Assessment of agreement areas - Thank you for effort being put in this. - The slide is an assessment of where we believe the community is now. It is not meant in any way to be a position of the Board. This slide is divided into 4 groups and columns. On left hand side: 4 groups of elements to strengthen accountability of ICANN. We took them from CWG-stewardship work. On right hand side: we tried to divide list of items into 4 columns. 1st column elements that have brought agreement specifically designed to replace NTIA backstop role; 2nd column has addition elements of broad agreement but not necessary to replace US role; 3rd column are elements that have broad community agreement on requirements but not necessarily to implement them; 4th column is for items where there is no broad agreement. - We produced this slide for two reasons: 1) amount of material that is available is so vast that many are struggling to get a sense of overall picture; 2) reading public comment to determine areas of broad agreement. We may not have every detail on how to implement these. There are no issues we believe cannot be resolved. How do we provide oversight of IANA by OCs for instance - e.g. First two columns have checked marks because we feel there is broad agreement on all these items. First set is for CWG dependencies - there is broad agreement there. It meets the requirements of replacing backstop and goes beyond that to strengthen accountability of ICANN. Removing Board directors is powerful and limited today. Pre service letter is a contract that forces Board members to resign. Making IRP binding gives an additional avenue. In alignment with principles of third block. We are in synch. The last group speaks about creation of new legal structures. The Board showed concerns in LA. There is no consensus as it will generate a lot of questions. Having a brand new untested model creates capture and generates question about enforceability. It will take time. We don't have this detail. NTIA confirmed that if receives proposal without additional details, NTIA will have a hard time accepting proposal. We need guidance from CCWG on whether the first two columns are sufficient to move forward with the transition. The Board is committed to working within your process. We are trusting you that we will towards solution. Feedback: - you would be so kind and ask Fadi why only the 4th vertical box talks about "new structures".Does he mean SMM? --> Models that create new legal authority that are above Board with very powerful authority is a concern not for their existence but because they will need to be understood and safeguarded, managed in a way that will not create authoritative powers that will not be bound by accountability of ICANN. It is a concern. Every time we create a new structure - questions of who is in that new structure and are they accountable are natural questions that you are asking Board today. Everyone should be clear that all models create new powers on top of existing structure. They need to be understood and bound to make sure organization continues to operate. - Slide summarizes what has been discussed but disagree with line "reaffirm in bylaws current requirement of Board/GAC consultation on consensus advice". Concerns about stress test 18 are not reflected. It is not a broad community agreement. The GAC is still deliberating. It has been proposed by some CCWG members as work stream 1 but no broad agreement. We would welcome details on any changes to structure. --> Agree that this is still work in progress. It includes an asterisk that further work is needed. - What is missing is separation of PTI from ICANN. Membership is not a new idea. --> We can add line to emphasize what you said. We are in alignment. - What kind of details are being sought? Draft Bylaws? Is this something that has been given consideration? --> E.G. what would be threshold for Board members' recall or cause etc. Another instance: voting requirements are unclear - what would they be - Would GAC join - if so, what rights etc. Detail is especially needed on bottom three lines. - Would you agree that there is consensus for power to remove individual director in either model? --> Yes. There is consensus from community for this power. But how does the NomCom do it vs. SO/ACs? Detail needed. Important for stakeholders to have equal ability to remove Board members. Our Board is 100 % in support of this power. - The bottom three rows are carefully constructed so that problem is new structure. What do mean by "new structure". All existing mechanisms rely on existing Bylaws. Do you mean statuory characteristics of membership organization? The member aspect of ICANN is woven into our Bylaws. The membership gene is suppressed. What if we were to consider the designator model? --> If we remove wording of new structure - if those things were built into our Bylaws, then we are okay. Concerns when not fully understood and when no safeguards to preserve multistakeholder. How are those powers in check and accountable? How are decisions reflecting public interest and mission of ICANN? What is the legal assessment of what is already in our Bylaws. Need to ensure decisions are made in global public interest - Does the Board's objection to the sole member model apply to a sole designator model? In particular, there are strong grounds to argue that ICANN currently operates under a designator model, so that it would not be a "new structure" --> Unclear how designator model would work. We are saying no to concentration of powers in three rows. It should not infringe global public interest or nature of our organization. Ethos of ICANN not to concentrate power and to balance it between SO/ACs. - This slide is interpreted as assessment of what is going on. We need to assess public comments. We need to ensure that all voices in room are getting channeled. Disperse powers among community outside all 16 Board members. We need to keep away from language. We have promise of mutual accountability. ---> Slide is a personal attempt to understand and build bridges. We can all use your assessment. CCWG vs. Board does not help - Board is fully committed to working in process.. Our number 1 is to community and not to corporate. - Avoid possibility for one part of community to struggle against another part at court level. It is an important point that needs to be taken into account. ---> Our good chunk of our community cannot participate. We have a subset of community in single point. When parts of community are not in model, a subset of comments suddenly has those powers. Idea that will be listening to advice needs safeguard. All details are necessary when power is limited to a smaller group of SO/AC. Conclusion: Dialogue has not reached point where all parties feel full understanding of rationale and characteristics of proposals. We need to reach this level. Work plan to Dublin We have limited time and wish to focus WP parties to reading community comment and labeling them into three areas: 1) consensus; 2) refinement/requiring details; 3) divergence. We will task Work Parties to oversee this and submit additional details. In Dublin: address Work Party reports in AM - Afternoon key adjustment to proposal including approving alternatives Feedback: - There is no point in having SO/AC Chairs represent interest of groups. All meetings should be open. --> No one has suggested establishing secret meetings or excluding anyone from meetings. --> Goal of WPs is to complete work of analyzing community feedback and coming back to group with a set of options by OC T 12 so that in Dublin the CCWG can make decisions. These groups are not decision-making. Roles of rapporteurs are to gather input. - Where will additional time be slotted? - Support having a group that waves red flags to advance work and coordinate overall process. - A lot of concerns could be dealt with easily if we clarified what is meant in last slide. If could clarify that means appointed in CCWG as opposed to creating new group. Is there any thought about which Board member/lawyer. What would this new small group be coordinating? --> Encourage the Board to designate liaisons to work with WPs in place. This could lead to more active engagement between Board and CCWG. Legal teams would be invited to join as well as Board's legal advisors. - Output is aimed to show how analysis can be done and how it relates to comments receive. When it comes to substantive work, development of work in these subgroups in a concern. Full group will be subject to limited timeline. It would be better to work with current structure of open WPs. - Support for staying with same approach. - What is focus group? --> No change to current structure. We are only encouraging Board members to join us. - Impossible to attend all discussions. - Texts should be open to all community. --> All groups are open and transparent. - Don't call them focus groups. - Bruce-Rinalia and Cherine will be joining WPs. Engagement Plan with Chartering Organizations and Board Would you like to include political advisors or would the group prefer not to engage with advisors at this time? There is no clear preference ACTION ITEM - Reach out to political advisors and ask whether they can provide us with input on politic scene vis-a-vis our model. Feedback: - Stick to professional and technical - not political. --> It is our role to ensure group's views are heard. It is an important point. ACTION ITEM: Define scoping of this action On report communications - Kieren's note advised that our report is written for community. It makes sense to keep our format as it includes our methodology. On top of that we should be working on separate document to make language easier to understand. Are there additional actions we should take action on? We should not do a rewrite of report but suggestion to remove genesis and focus on content instead. Feedback: - Agree with short format. We need to engage comms and X-plane in detailed manner. - Try to capture clarity of discussion earlier to modify proposal. Could this be followed up through three Board members - Ensure there is understanding.

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CSMM as WS2
by Jonathan Zuck Sept. 30, 2015

Sept. 30, 2015

Here's a flyer. How about we make the determination that converting ICANN to a membership organization is a WS2 initiative and design a stress test for whatever we come up with in the interim that examines the community's ability to make this transformation post transition. With the right set of bylaws changes, the ability to spill the board, etc. we might be able to meet the WS1 requirements of "sufficient leverage to accomplish WS2." We could keep it pretty simple, eliminate the deadline, the NTIA, etc. and work towards a membership model over the following year and spill the board if they resist. I know that spilling the board is something we don't regard as practical leverage for some random policy decision but I think it's pretty credible for a restructuring. Thoughts? Jonathan

4 4

More on the Legal Grounds for the IANA transfer
by Paul Rosenzweig Sept. 30, 2015

Sept. 30, 2015

The letter yesterday from Senator Cruz et.al, referenced a legal opinion from the General Counsel at the Department of Commerce. I had not seen that letter before and wasn't even aware that it had been issued. I managed to track it down. Here is a link, for those who are interested in the question: getliberty.org/wp-content/uploads/2015/06/15.06.11-Strickling-Response-on-NT IA-and-IANA-Property-Letter.pdf 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>

7 7

FW: ICYMI: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet
by Paul Rosenzweig Sept. 30, 2015

Sept. 30, 2015

The below from Senator Cruz is self-explanatory. I have no doubt it will make Dr. Lisse very happy. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key ICYMI- U.S. Sen. Ted Cruz (R-Texas), along with Senate Judiciary Committee Chairman Charles Grassley (R-Iowa), House Judiciary Committee Chairman Bob Goodlatte (R-Va.), and Rep. Darrell Issa (R-Calif.), Chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, sent a letter to the Government Accountability Office (GAO) requesting an affirmative determination of whether the Obama Administrations plan to transfer U.S. oversight of the Internet violates the Constitution. The Wall Street Journal's columnist L. Gordon Crovitz reported on the letter today in his Information Age column, <http://www.wsj.com/articles/not-obamas-to-give-away-1443386189> Not Obamas to Give Away. From: Press, Cruz (Cruz) Sent: Monday, September 28, 2015 11:54 AM Subject: RELEASE: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet UNITED STATES SENATE Sen. Ted Cruz Press Office FOR IMMEDIATE RELEASE Cruz Press Office: 202-228-7561 Phil Novack: phil_novack(a)cruz.senate.gov <mailto:phil_novack@cruz.senate.gov> September 28, 2015 Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet Judiciary Chairmen Grassley and Goodlatte, with Rep. Issa, join Cruz to get answers on whether Administrations plan violates the Constitution WASHINGTON, D.C. U.S. Sen. Ted Cruz (R-Texas), along with Senate Judiciary Committee Chairman Charles Grassley (R-Iowa), House Judiciary Committee Chairman Bob Goodlatte (R-Va.), and Rep. Darrell Issa (R-Calif.), Chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, sent a letter to the Government Accountability Office (GAO) requesting an affirmative determination of whether the Obama Administrations plan to transfer U.S. oversight of the Internet violates the Constitution. The Wall Street Journal's columnist L. Gordon Crovitz reported on the letter today in his Information Age column, <http://www.wsj.com/articles/not-obamas-to-give-away-1443386189> Not Obamas to Give Away. Sen. Cruz said: Under Article IV, Section 3 of the Constitution, Congress has the exclusive power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. If the contract governing U.S. oversight of the Internet is indeed government property, the Administrations intention to cede control to the global stakeholder community -- including nations like Iran, Russia and China that do not value free speech and in fact seek to stifle it -- is in violation of the Constitution and should be stopped. The letter is being sent at a time when efforts by both the Administration and Congress, via the DOTCOM Act, are underway to facilitate the transition of U.S. control over the Internet without an affirmative vote from Congress. In another action to protect U.S. control of the Internet, <http://www.cruz.senate.gov/?p=press_release&id=2402> Sen. Cruz recently filed the DOTCOM Act as an amendment to the highway reauthorization bill the Senate considered in July. Cruz's amendment is identical to the original version of the DOTCOM Act being considered by the Senate with one exception: it would require Congress to have an affirmative up or down vote on the Obama Administration's plan to give away the Internet. Read the full text of the Cruz-Grassley-Goodlatte-Issa letter <http://cruz.senate.gov/files/documents/Letters/20150922%20Grassley%20Cruz%2 0Goodlatte%20Issa%20GAO%20Request%20ICANN.pdf> here and below: September 22, 2015 Mr. Gene Dodaro Comptroller General U.S. Government Accountability Office 441 G Street, N.W. Washington, DC 20548 Dear Mr. Dodaro: On March 14, 2014, the National Telecommunications and Information Administration (NTIA) announced its intent to relinquish oversight of Internet domain name functions to the global stakeholder community. This proposed transition raises questions about NTIAs authority to transfer possession and control of critical components of the Internets infrastructure to a third party. The Internet as we know it has evolved from a network infrastructure first created by Department of Defense researchers. One key component of that infrastructure is the root zone file, which the federal government currently designates as a national IT asset.[1] Creation of the root zone file was funded by the American taxpayer and coordinated by the Department of Defense, and the file has remained under United States control ever since. Under Article IV, Section 3 of the Constitution, Congress has the exclusive power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. One question arising from NTIAs decision to transfer its Internet oversight functions to a third party is whether NTIA may relinquish possession and control of the root zone fileor any other similar component of the Internet that was financed and developed by the United Stateswithout authorization from Congress. This concern was raised in 2000 by the Government Accountability Office (GAO), which questioned whether NTIA could relinquish authority over the root zone file and concluded that it was unclear whether such a transition would involve a transfer of government property to a private entity.[2] The 2000 GAO report further detailed that the Department of Commerce advised the GAO at the time that we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary to authorize transfer of the root zone file. Congress should be made aware of the legal status of the root zone fileor any other potential government propertybefore it makes any final decisions about whether to transfer the governments Internet oversight functions to a third party. Some observers and parties involved in the proposed transfer have asserted that the termination of NTIAs contract with ICANN would not result in the transfer of United States Government property.[3] Others believe that termination of this contract would result in government property being transferred to ICANN and point to a number of factors that would indicate that the root zone file and other contractual deliverables are property of the United States. Supporters of this position point to the fact that the United States acquired title to the root zone file because it was invented pursuant to Department of Defense contracts.[4] In addition, the United States has long claimed ownership or control over the root zone file. For example, President Clintons Internet czar Ira Magaziner asserted United States ownership of the entire Domain Name System because [t]he United States paid for the Internet, the Net was created under its auspices, and most importantly everything [researchers] did was pursuant to government contracts.[5] Additionally the Commerce Departments contract with ICANN explicitly declares that [a]ll deliverables provided under this contract, including the automated root zone, are the property of the U.S. government.[6] And Verisign and ICANN contracts make clear that changes to the root zone file cannot be made without approval of the Department of Commerce.[7] Congress has also been actively engaged in managing the root zone file. Recently, it enacted the Consolidated and Further Continuing Appropriations Act of 2015, which explicitly prohibited the Commerce Department from using federal funds to relinquish stewardship of the domain name system, including responsibility with respect to the authoritative root zone file.[8] Given this history, we are concerned that NTIA might potentially relinquish ownership of some form of United States property. To inform the Congress so that it may take any necessary and appropriate steps regarding NTIAs planned transition of the IANA functions, we would like the GAO to conduct a review to address a number of specific questions. 1. Would the termination of the NTIAs contract with ICANN cause Government property, of any kind, to be transferred to ICANN? 2. Is the authoritative root zone file, or other related or similar materials or information, United States government property? 3. If so, does the NTIA have the authority to transfer the root zone file or, other related materials or information to a non-federal entity? Please include in this report a description and analysis of the relevant legal authorities and case law dealing with the transfer of United States Government property. We understand that to perform this work, GAO will need to conduct both significant audit work and complex legal analysis. Please contact Jonathan Nabavi (Chairman Grassley), Sean McLean (Senator Cruz), Vishal Amin (Chairman Goodlatte), and Veronica Wong (Congressman Issa) of our staffs if there are questions regarding this request. Sincerely, ______________________ _________________________ Charles E. Grassley Ted Cruz Chairman United States Senator Senate Committee on the Judiciary _______________________ __________________________ Bob Goodlatte Darrell Issa Chairman Member of Congress House Committee on the Judiciary [1]See, Verisign Company Information: http://www.verisign.com/en_US/company-information/index.xhtml [2]U.S. Government Accountability Office., GAO-B-284206, Department of Commerce: Relationship with the Internet Corporation for Assigned Names and Numbers (2000) [3]Letter from Lawrence Strickling, Assistant Secy for Commcns and Info., U.S. Dept of Commerce, to Representative Sean Duffy & Representative James Sensenbrenner, U.S. House of Representatives (June 11, 2015) [4]U.S. Congressional Research Service. Internet Governance and the Domain Name System: Issues for Congress (R42351; August 18, 2015), by Lennard G. Kruger [5]Jack Goldsmith & Tim Wu, Who Controls the Internet?: Illusions of a Borderless World 41 (2006) [6]Internet Assigned Numbers Authority Functions Contract between U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers. Contract Number SA1301-12-CN-0035. October 1, 2012. [7]See, Amendment 11 of the Cooperative Agreement NCR-9218742 between the U.S. Department of Commerce and Verisign, Inc. Also see, Internet Assigned Numbers Authority Functions Contract between U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers. Contract Number SA1301-12-CN-0035. October 1, 2012. [8]Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No 113-235, § 540, 128 Stat. 2130, 2217 (Dec. 16, 2014) ###

5 4

Regarding GAC participation
by Perez Galindo, Rafael Sept. 30, 2015

Sept. 30, 2015

Good morning/afternoon/night to All In order to make an informed decision on the role the GAC could take on in the different models under discussion, it is still unclear to me what the legal implications of participation in a voting mechanism are for governments, even more in the absence of a precedent or parallel that we could draw on. Hence, the ability for governments to participate in wider community voting processes under a foreign jurisdiction is a point I would like to raise with the CCWG's legal advisors, along with the issue of governments liability as participants e.g. in the sole member of a non-for-profit corporation (which stems from the fact that governments would be subject to CA jurisdiction). This issue was first raised by Anne Aikman-Scalese (9th september email) and I believe no answer has been provided to date: "[...] 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.". In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM). Looking forward to receiving the legal advice, thank you and best regards Rafael GAC_SPAIN

1 0

Re: [CCWG-ACCT] More on the Legal Grounds for the IANA transfer
by Carlos Raul Sept. 30, 2015

Sept. 30, 2015

Thank you David I was about to hire a new California lawyer just for LACRALO.......SPANGLISH speaking of course. On Sep 29, 2015 6:49 PM, "David Post" <david.g.post(a)gmail.com> wrote: > In my opinion, no ... there's no "property" being transferred as part of > the transition, so this argument has never made any sense to me. > > David > > > At 07:33 PM 9/29/2015, Carlos Raul wrote: > > Can the IANA operations, sole subject of the stewardship transition, be > classified as "intelectual property"????? > > > *Carlos RaÃºl GutiÃ©rrez *+506 8837 7176 > Skype carlos.raulg > _________ > Apartado 1571-1000 > > *COSTA RICA * > > On Tue, Sep 29, 2015 at 4:11 PM, Aikman-Scalese, Anne <AAikman(a)lrrlaw.com> > wrote: > > Right – the onnly problem being that FAR Section 45.101 definition may not > be the accurate definition since it expressly excludes intellectual > property. > > Â > > [image: []] > > 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 | www.LRRLaw.com <http://www.lrrlaw.com/> > > Â > > Â > > Â > > From: accountability-cross-community-bounces(a)icann.org [ > mailto:accountability-cross-community-bounces@icann.org > <accountability-cross-community-bounces(a)icann.org>] On Behalf Of Paul > Rosenzweig > Sent: Tuesday, September 29, 2015 1:55 PM > To: accountability-cross-community(a)icann.org > Subject: [CCWG-ACCT] More on the Legal Grounds for the IANA transfer > > Â > > The letter yesterday from Senator Cruz et.al, referenced a legal opinion > from the General Counsel at the Department of Commerce.Â I had not seen > that letter before and wasnâ€™t even aware that it had been issued.Â I > managed to track it down.Â Here is a link, for those who are interested in > the question: > getliberty.org/wp-content/uploads/2015/06/15.06.11-Strickling-Response-on-N… > Â > > Â > > Paul > > Â > > Paul Rosenzweig > > Red Branch Consulting, PLLC > > 509 C St. NE > > Washington, DC 20002 > > paul.rosenzweig(a)redbranchconsulting.com > <paul.rosenzweigesq(a)redbranchconsulting.com> > > O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> > > M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> > > VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> > > Skype: paul.rosenzweig1066 > > www.redbranchconsulting.com > > www.paulrosenzweigesq.com > > Link to my PGP Key > <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl…> > > Â > > Â > > ------------------------------ > > This message and any attachments are intended only for the use of the > individual or entity to which they are addressed. 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. Â§2510-2521. > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > Content-Type: image/gif; name="image001.gif" > Content-Disposition: inline; filename="image001.gif" > Content-ID: <image001.gif(a)01D0FAC9.2AD7A350> > X-Attachment-Id: 91a32d2bfc0e54c3_0.0.1 > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > ******************************* > David G Post - Senior Fellow, Open Technology Institute/New America > Foundation > blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post > book (Jefferson's Moose) http://tinyurl.com/c327w2n > <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> > music http://tinyurl.com/davidpostmusic > <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com > > ******************************* >

1 0

Work plan to Dublin
by Mathieu Weill Sept. 29, 2015

Sept. 29, 2015

Dear Colleagues, In anticipation of a discussion during our meeting tomorrow, please find attached a set of slides to suggest a way forward, for the group's consideration. Thank you for your feedbacks. Best regards, Thomas, Leon & Mathieu

11 19

Quarterly Stakeholder Call
by Grace Abuhamad Sept. 29, 2015

Sept. 29, 2015

Original link: https://www.icann.org/news/announcement-2015-09-23-en ICANN Quarterly Stakeholder Report – Register for the FY16 Q1 call on 6 October 2015 This page is available in: * Português <http://www.icann.org/news/announcement-2015-09-28-pt> * Español <http://www.icann.org/news/announcement-2015-09-28-es> * Pусский <http://www.icann.org/news/announcement-2015-09-28-ru> * العربية <http://www.icann.org/news/announcement-2015-09-28-ar> * Français <http://www.icann.org/news/announcement-2015-09-28-fr> * 中文 <http://www.icann.org/news/announcement-2015-09-28-zh> * English <https://www.icann.org/news/announcement-2015-09-23-en#> <https://www.icann.org/news/announcement-2015-09-23-en#> <https://www.icann.org/news/announcement-2015-09-23-en#> <https://www.icann.org/news/announcement-2015-09-23-en#> <https://www.icann.org/news/announcement-2015-09-23-en#> <https://www.icann.org/news/announcement-2015-09-23-en#> ICANN has announced its FY16 Q1 Stakeholder Call, which will take place on 6 October at 00:00 UTC / 7 October 0800 SGT. The call will cover how ICANN has progressed against its strategic and operating plans for the Quarter ending 30 September 2015. Please click here <http://goo.gl/forms/TrqVNKvprt> to register for the call and to receive joining instructions. If you are unable to access the form, please email us <mailto:icann.communications@icann.org> to register with your full name and email address to send joining instructions to. The call is open for all to attend, including press, and there will be ample time for Questions & Answers (Q&A). A recording of the call will also be available online on the ICANN website here <https://www.icann.org/resources/pages/quarterly-reports-2014-11-13-en> . These calls were set up to enhance ICANN's accountability and transparency efforts by making it easy to follow ICANN's progress toward fulfilling its mission of keeping the Internet secure, stable and interoperable. More information Please visit the Reporting page <https://www.icann.org/resources/pages/quarterly-reports-2014-11-13-en> on the ICANN website 24 hours before the call to pre-read the presentation. You can also find other useful resources and background information on this page, as well as archived transcripts and recordings of all previous Quarterly Stakeholder Calls.

1 0

Communications Ideas
by James Gannon Sept. 29, 2015

Sept. 29, 2015

Hi All, As someone said during the meeting yesterday (I can’t remember who it was) I think some of our issues are around our communications, as the person said “What we have here is a failure to communicate”. Our draft report is heavy dense reading and does little to educate the reader who has not been following our processes and discussions. I think that we should collect some ideas on how to improve the readability and understandability of what we have set out in the report. Taking the example of some of the work we did on the remote breakout session yesterday with Steve DelBianco (Who did a great job by the way) I noted that Steve was able to distill the conversation into a single powerpoint slide, and I thought that that was an approach that we might want to take into our next draft. To that end I wanted to see could I get some idea of how we could distill our plans for implementing each of our community powers into a single page each and made an attempt to work an illustrative example attached to this email. I think that having these one pagers at the start of our document would be very helpful and Im sure staff and the comms team can take the concept and make it a lot more attractive and pleasing to the eye than I have (I am many things, a graphic designer is not one of them!) I have also tried to weave in the recommendations from the GAO report on how we present our deliberations to NTIA in an attempt to assist them when it comes to measuring and assessing our work. I think that we should try and collect ideas from everyone on how we can make the report both substantive and easy to follow so happy to hear further ideas. Also please don’t read anything into my phrasing or word choice in the examples, purely for illustration purposes. -James

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Re: [CCWG-ACCT] CSMM as WS2
by Roelof Meijer Sept. 29, 2015

Sept. 29, 2015

That¹s a route worth exploring further, in my opinion. With the necessary bylaw changes and the power to spill the board, the community has a lot (and the most effective bit) of leverage Cheers, Roelof On 29-09-15 01:29, "accountability-cross-community-bounces(a)icann.org on behalf of Jonathan Zuck" <accountability-cross-community-bounces(a)icann.org on behalf of JZuck(a)actonline.org> wrote: >Here's a flyer. How about we make the determination that converting ICANN >to a membership organization is a WS2 initiative and design a stress test >for whatever we come up with in the interim that examines the community's >ability to make this transformation post transition. With the right set >of bylaws changes, the ability to spill the board, etc. we might be able >to meet the WS1 requirements of "sufficient leverage to accomplish WS2." >We could keep it pretty simple, eliminate the deadline, the NTIA, etc. >and work towards a membership model over the following year and spill the >board if they resist. I know that spilling the board is something we >don't regard as practical leverage for some random policy decision but I >think it's pretty credible for a restructuring. Thoughts? > >Jonathan > >_______________________________________________ >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] CSMM as WS2
by avri doria Sept. 29, 2015

Sept. 29, 2015

Hi, I understand and used to believe that as well. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Jonathan Zuck <JZuck(a)actonline.org> </div><div>Date:09/29/2015 10:17 AM (GMT-05:00) </div><div>To: avri doria <avri(a)ella.com>, Chris Disspain <ceo(a)auda.org.au> </div><div>Cc: CCWG Accountability <accountability-cross-community(a)icann.org> </div><div>Subject: RE: [CCWG-ACCT] CSMM as WS2 </div><div> </div>Avri, WS1 has always been about power and WS2 about implementation. WS1 was never going to be complete and, for that matter, WS2 won’t ever be complete either. That said, if we have the power to spill the board with relative ease, we can easily reconvene, flesh out the member model, submit it to the board and spill them if they aren’t constructive. We don’t need to worry about deadliens, the congress, NTIA, etc. the whole point of WS1 is to ensure the capability to do just this. From: avri doria [mailto:avri@ella.com] Sent: Monday, September 28, 2015 9:21 PM To: Chris Disspain <ceo(a)auda.org.au>; Jonathan Zuck <JZuck(a)actonline.org> Cc: CCWG Accountability <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] CSMM as WS2 Hmm. An April 1 RFC as a model solution for our issues with the board. Might indeed be the right approach. Or was that just by way of comment. For example an explanation of why putting things in ws2 is just silly and won't work. avri Sent from a T-Mobile 4G LTE Device -------- Original message -------- From: Chris Disspain <ceo(a)auda.org.au> Date:09/28/2015 8:42 PM (GMT-05:00) To: Jonathan Zuck <jzuck(a)actonline.org> Cc: CCWG Accountability <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] CSMM as WS2 Thanks Jonathan. I find RFC 1925 most instructive when dealing with circumstances such as the one we currently find ourselves in. https://www.rfc-editor.org/rfc/rfc1925.txt Cheers, Chris On 29 Sep 2015, at 09:29 , Jonathan Zuck <jzuck(a)actonline.org> wrote: Here's a flyer. How about we make the determination that converting ICANN to a membership organization is a WS2 initiative and design a stress test for whatever we come up with in the interim that examines the community's ability to make this transformation post transition. With the right set of bylaws changes, the ability to spill the board, etc. we might be able to meet the WS1 requirements of "sufficient leverage to accomplish WS2." We could keep it pretty simple, eliminate the deadline, the NTIA, etc. and work towards a membership model over the following year and spill the board if they resist. I know that spilling the board is something we don't regard as practical leverage for some random policy decision but I think it's pretty credible for a restructuring. Thoughts? Jonathan _______________________________________________ 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] CSMM as WS2
by avri doria Sept. 29, 2015

Sept. 29, 2015

Hmm. An April 1 RFC as a model solution for our issues with the board. Might indeed be the right approach. Or was that just by way of comment. For example an explanation of why putting things in ws2 is just silly and won't work. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Chris Disspain <ceo(a)auda.org.au> </div><div>Date:09/28/2015 8:42 PM (GMT-05:00) </div><div>To: Jonathan Zuck <jzuck(a)actonline.org> </div><div>Cc: CCWG Accountability <accountability-cross-community(a)icann.org> </div><div>Subject: Re: [CCWG-ACCT] CSMM as WS2 </div><div> </div>Thanks Jonathan. I find RFC 1925 most instructive when dealing with circumstances such as the one we currently find ourselves in. https://www.rfc-editor.org/rfc/rfc1925.txt Cheers, Chris On 29 Sep 2015, at 09:29 , Jonathan Zuck <jzuck(a)actonline.org> wrote: Here's a flyer. How about we make the determination that converting ICANN to a membership organization is a WS2 initiative and design a stress test for whatever we come up with in the interim that examines the community's ability to make this transformation post transition. With the right set of bylaws changes, the ability to spill the board, etc. we might be able to meet the WS1 requirements of "sufficient leverage to accomplish WS2." We could keep it pretty simple, eliminate the deadline, the NTIA, etc. and work towards a membership model over the following year and spill the board if they resist. I know that spilling the board is something we don't regard as practical leverage for some random policy decision but I think it's pretty credible for a restructuring. Thoughts? Jonathan _______________________________________________ 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] Take a break team
by avri doria Sept. 29, 2015

Sept. 29, 2015

Hi, Did not know we had time for Moratorium. But ok. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Carlos Raúl Gutiérrez <crg(a)isoc-cr.org> </div><div>Date:09/27/2015 8:40 PM (GMT-05:00) </div><div>To: "James M. Bladel" <jbladel(a)godaddy.com> </div><div>Cc: Accountability Cross Community <accountability-cross-community(a)icann.org> </div><div>Subject: Re: [CCWG-ACCT] Take a break team </div><div> </div>Kind of a Moratorium????? Carlos Raúl Gutiérrez _____________________ email: crg(a)isoc-cr.org Skype: carlos.raulg +506 8837 7173 (cel) +506 4000 2000 (home) +506 2290 3678 (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA On Sep 27, 2015, at 5:45 PM, James M. Bladel <jbladel(a)godaddy.com> wrote: Wholeheartedly agree. Let us all use Monday and Tuesday to catch up on our day jobs. Thank you, J. ____________ James Bladel GoDaddy On Sep 27, 2015, at 16:32, Drazek, Keith <kdrazek(a)verisign.com> wrote: +1 Keith On Sep 27, 2015, at 4:42 PM, Alan Greenberg <alan.greenberg(a)mcgill.ca> wrote: Amen. -- Sent from my mobile. Please excuse brevity and typos. On September 27, 2015 3:14:03 PM CDT, Jordan Carter <jordan(a)internetnz.net.nz> wrote: Hi all May I respectfully suggest that after the past few days, the wise course is to back off and calm down, rather than building up to fights on the list? Best Jordan _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Fwd: Key Characteristics Comparison with Sole Designator Model
by Mathieu Weill Sept. 29, 2015

Sept. 29, 2015

Dear Colleagues, Please find attached an updated comparison chart of the various models, provided by our lawyers. Best Mathieu -------- Message transféré -------- Sujet : Key Characteristics Comparison with Sole Designator Model Date : Tue, 29 Sep 2015 03:29:27 +0000 De : Emily Chan <echan(a)adlercolvin.com> Pour : Thomas Rickert <thomas(a)rickert.net>, Mathieu Weill (Mathieu.Weill(a)afnic.fr) <Mathieu.Weill(a)afnic.fr>, León Felipe Sánchez Ambía (leonfelipe(a)sanchez.mx) <leonfelipe(a)sanchez.mx> Copie à : ICANN-Adler <ICANN(a)adlercolvin.com>, Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com> Dear Co-Chairs, Please find attached an updated version of the Key Characteristics Comparison slides that Rosemary and Holly sent on Saturday which renamed the Sole Designator model as the Community Mechanism for Shared Governance model. This updated version reverts the name of the model to the Sole Designator model. Best, Emily ===== Emily Chan Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415.421.7555 (phone) 415.421.0712 (fax) echan(a)adlercolvin.com <mailto:echan@adlercolvin.com> www.adlercolvin.com <http://www.adlercolvin.com/> The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at echan(a)adlercolvin.com, and delete all copies of this message and its attachments, if any. Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. Thank you.

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Follow up from the F2F in LA
by Mathieu Weill Sept. 29, 2015

Sept. 29, 2015

Mr Chairman, Dear Steve, On behalf of the Cross Community Working Group on Enhancing Icann’s Accountability, we would like to formally express our deepest thanks for your suggestion to host a face to face meeting of our group in Los Angeles on 25th and 26th September 2015, and for making yourself and many Board members available during the meeting. Our group is grateful for such an opportunity to take our work further as well as benefit from the extended availability of many Board members. Based on the substantial exchanges that took place during this meeting, we would also like to emphasize some suggestions related to Board – CCWG engagement in the future. 1. Board members have vast amount of experience regarding the issues our group is addressing. We would welcome their contributions as participants, not only in the CCWG but also in the various work parties we have set up. 2. Considering the very high interest from the community as well as from the Board members on the Accountability issue, we would suggest that Board meetings on the issue would deserve to be granted the highest possible transparency standards. Such meetings, as well as communications between CCWG members and Board members would benefit from being advertised publicly, as well as their conclusions. 3. At the same time, we reiterate our proposal to provide, as co-chairs, regular Board briefings during the Board meetings dedicated to Accountability, alongside the briefings provided by the President and staff. We would also welcome the opportunity to review the briefing materials received by Board members, and would understand if that was subject to a non disclosure agreement. 4. We would also appreciate an opportunity to extend the time dedicated to advancing our group and engaging with the Board during the Dublin Icann54 meeting. 5. Finally, we would also like to suggest the inclusion of regular updates about our work within the SO/AC Chair calls. On such matters, we would see extra value if the leaders of the other transition-related groups (ICG, CWG, …) could also be associated. We hope that these steps will foster an even stronger trust in the multistakeholder, bottom up process that was set up to respond to the challenge set up by the transition of the NTIA Stewardship. As such, they would certainly contribute to the success of this process, which is our common goal. Our group is setting aggressive targets for its work on the basis of the recent comments received from the public, including the Icann Board. We remain committed, as volunteers, to dedicate the right level of efforts to deliver a consensus proposal. As mentioned during the meeting in Los Angeles, a reaffirmation of the Board’s commitment to the process, similar to the 16 October 2010 Board resolution on Board Consideration of Recommendations from our group, would be extremely helpful to avoid any misunderstanding. The NTIA Stewardship transition is a historic opportunity. All components of the Icann multistakeholder model have to raise to the occasion and demonstrate unity of goal, sense of responsibility and commitment to the global public interest. Our hope is that these small steps contribute to our common success. Best regards, Thomas Rickert, Leon Felipe Sanchez & Mathieu Weill PS: Please feel free to share this correspondence to the Icann Board.

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Three questions for the ICANN Board.
by Arun Sukumar Sept. 29, 2015

Sept. 29, 2015

In the interest of asking some fairly obvious questions, and to place them on record (since the Board would have had some time to mull these over the retreat): 1. Why is the Board reluctant to support the creation of a Single Member Community to enhance ICANN's accountability? 2. Does the Board believe the NTIA will support the proposal currently put forward for public comment by the CCWG? If it does not believe so, could the Board offer its reasons? 3. Is it the Board's position that there is no community support for the CCWG's proposal? If this is based on an evaluation of public comments, who has opposed it and why? As a participant in the LA CCWG meeting, I could not gather the Board's responses to these meetings. Grateful if they are addressed here, or in tonight's call. Best, Arun -- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272

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Re: [CCWG-ACCT] Summary of current Board sentiment
by Avri Doria Sept. 29, 2015

Sept. 29, 2015

Hi, I disagree with the notion that the Board presents fact and the rest of the Community presents theory. Many in the other parts of this community have been involved in the ICANN bottom-up multistakeholder process for as long as the Board members. Some even longer with a greater degree of experience. And though our view is not the view from the privilege of Board perspective, it is probably just as validly based on that which is the case. The Board's views are important, and based on their ability to affect the results of the community's work have a special role in our considerations. But please lets not elevate their position to the one truth we must all recognize. avri On 28-Sep-15 11:38, Kavouss Arasteh wrote: > Dear Ed > I always respect your views but this time with a little bit if reluctance. > Board, s views contain a great degree of valuable importance as it > speaks for implementation of the idea whereas we purely were thinking > and discussing of almost theory. > Regards > Kavouss > > Sent from my iPhone > > On 28 Sep 2015, at 15:26, avri doria <avri(a)ella.com > <mailto:avri@ella.com>> wrote: > >> Hi, >> >> Or we may have to realize that the Board's fear of the community and >> the FUD about what we might do, is so great that they will never be >> able to accept a membership model. The historical and continuing >> aversion of ICANN's Board and legal advisers to the notion of >> allowing the community to have any kind of membership may just be >> part of its nature and something they are incapable of 'blinking' >> about. It may be the threshold ceiling this experiment in bottom up >> multistakeholder process can never move beyond. ICANN may, by its >> very nature and history, never be able to become fully what it >> aspires to be recognized as. >> >> It then may be up to the community to decide to take whatever crumbs >> of accountability we can get. One thing I am certain of, one way or >> another, ICANN will come out of this process changed. It will either >> continue to lead in developing a true multistakeholder model. Or it >> may just settle into a slow decline as another organization that >> never lived up to its promise. >> >> avri >> >> Sent from a T-Mobile 4G LTE Device >> >> >> -------- Original message -------- >> From: Dr Eberhard W Lisse <epilisse(a)gmail.com >> <mailto:epilisse@gmail.com>> >> Date:09/28/2015 8:15 AM (GMT-05:00) >> To: CCWG Accountability <accountability-cross-community(a)icann.org >> <mailto:accountability-cross-community@icann.org>> >> Cc: Lisse Eberhard <directors(a)omadhina.NET >> <mailto:directors@omadhina.NET>> >> Subject: Re: [CCWG-ACCT] Summary of current Board sentiment >> >> Ed, >> >> of course we must give special attention to the Board. Stare them in >> the face until they blink :-)-O >> >> el >> >> -- >> Sent from Dr Lisse's iPad mini >> >> On 28 Sep 2015, at 06:27, Edward Morris <egmorris1(a)toast.net >> <mailto:egmorris1@toast.net>> wrote: >> >>> Kavouss, >>> >>> >>> I personally attach a very hight level of support to the Board,s >>> comments which stem from 17 years of valuable experience. While I >>> support and appreciate public comments but we should give special >>> attention to the valuable comments from the Board and should not put >>> those comments in the sane basket of any other comment received >>> from individual . >>> >>> >>> >>> I respectfully disagree with this sentiment. I give no greater >>> weight to the comments of a member of the Board than I do to a >>> comment from the least privileged amongst us. I give power to the >>> idea, not to the person or the organisation making it. >>> >>> Ed >>> >>> _______________________________________________ >>> 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 email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

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"Interesting" Question
by Dr Eberhard W Lisse Sept. 29, 2015

Sept. 29, 2015

Dear Co-Chairs, It appears that the fundamental question, the certification of which to our lawyers was torpedoed as being "interesting" by a Participant, which figured prominently in my Public Comments and Minority Report, seems to have piqued the interest of Sen Ted Cruz (R-Alberta) and some of his conservative cohorts: http://www.cruz.senate.gov/?p=press_release&id=2453 I am looking forward to the report to be issued by the GAO, which, since it is to include legal authorities, will help the CCWG's lawyers own research, if any. Even if I might not like the content. greetings, el -- Sent from Dr Lisse's iPad mini

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AGENDA - Call #55
by Alice Jansen Sept. 28, 2015

Sept. 28, 2015

Dear all, In anticipation of your call#55<https://community.icann.org/pages/viewpage.action?pageId=56138858> - Tuesday, 29 September from 19:00-21:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>), please find below a proposed agenda: 1. Welcome, Roll Call, SoI 2. Assessment of agreement areas, by Fadi Chehadé 3. Work plan to Dublin 4. Engagement plan with Chartering organisations and Board 5. AOB Thank you, Kind regards Alice

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REVISED memo
by Rosemary E. Fei Sept. 28, 2015

Sept. 28, 2015

Dear Co-Chairs: We have made some clarifying changes to the memo we sent earlier this week; a revised version is attached. We would appreciate it if staff could post this in place of the prior version. Thank you. Rosemary and Holly Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com www.adlercolvin.com _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.

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Re: [CCWG-ACCT] REVISED memo - TAKING STOCK OF EXISTING BOUNDARIES TO CCWG-ACCT WORK
by Aikman-Scalese, Anne Sept. 28, 2015

Sept. 28, 2015

Dear all, Below I have pulled excerpts from the Revised Memo provided by Holly and Rosemary that I believe define some of the boundaries of the CCWG’s work moving forward: From p. 4 at bottom: · Note that the CWG-Stewardship final transition proposal provides that the community powers with respect to the ICANN and IANA Budgets are key dependencies. The CWG-Stewardship has acknowledged in its public comment that the community’s ability to veto the ICANN and IANA Budgets separately will meet the CWG-Stewardship requirements, and has stated that “[w]e believe that the CCWG-Accountability draft proposal on budgets is both necessary and sufficient to adequately satisfy these requirements of the CWG-Stewardship final transition proposal.” From p. 6 at the bottom: · Note that the CWG-Stewardship final transition proposal requires that the ICANN multistakeholder community have the ability to appoint and remove members of the ICANN Board. From p. 7 in the middle” · Note that the CWG-Stewardship final transition proposal requires that the ICANN multistakeholder community have the ability to recall the entire ICANN Board. Also from the middle of p. 7 · Note that the CWG-Stewardship final transition proposal requires that the ICANN multistakeholder community have the ability to exercise oversight with respect to key ICANN Board decisions (including with respect to the ICANN Board’s oversight of the IANA functions) by reviewing and approving: o ICANN Board decisions with respect to recommendations resulting from an IANA Function Review (IFR) or Special IFR; and o ICANN Board decisions with respect to the ICANN and IANA Budgets (discussed in subsection (b), above). The following legal advice contained in the memo also helps recognize certain existing boundaries (comments in blue are my own): P. 2 – middle – Under the Board Proposal, the MEM process and the binding arbitration it provides would not be available for concerns about violations of Articles and standard Bylaws. [MEM process only applies to Fundamental Bylaws] p.2 – middle – It appears that while any individual SO or AC, by consensus, could initiate a petition process to commence MEM arbitration, followed by notice to the other SOs and ACs, to initiate a MEM proceeding, the agreed number of SOs and/or ACs must each, by consensus, support the initiation of MEM arbitration. [Board proposal requires FULL consensus of all SOs/ACs to initiate arbitration.] Top of p. 4 regarding the Board’s proposed ByLaws changes in the context of continuing the current corporate structure and not changing to a Membership corporation: · As a legal matter, there is a level of uncertainty arising to doubt that Bylaw provisions providing these rights to the community as represented by the SOs and ACs would be legally cognizable, let alone enforceable, outside of a member context. [referring to reconsideration/rejection of budget and Strategic Operating Plan – such Bylaws may be void or unenforceable if membership structure not chosen] p. 4 – third bullet from the bottom · We note that the CCWG rejected an empowered designator approach because it could not provide enforceable community powers with respect to budget and strategy/operating plan veto for the very same reasons discussed above in relation to the Board Proposal. p. 9 – middle bullet point · There is nothing about the Sole Member’s internal structure that requires use of a voting mechanism; governance and decision-making within a California unincorporated association is extremely flexible. The Sole Member’s internal voting process could be replaced with the same approach to community decisions as in the Board Proposal. This would provide the community with the same powers, and the same level of enforceability, as the CCWG Proposal. Once again I note that I am not a California lawyer. Just trying to distill the points made by counsel to the CCWG-ACCT that appear to me to set boundaries for our work given the current timetable. Anne [cid:image001.gif@01D0F9F4.DC831920] 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] On Behalf Of Carlos Raul Sent: Monday, September 28, 2015 12:55 PM To: Drazek, Keith Cc: ICANN-Adler; Thomas Rickert; Accountability Cross Community (accountability-cross-community(a)icann.org) Sidley ICANN CCWG (sidleyicannccwg(a)sidley.com) ccwg-accountability5(a)icann.org Subject: Re: [CCWG-ACCT] REVISED memo +1 Keith! On Sep 28, 2015 12:22 PM, "Drazek, Keith" <kdrazek(a)verisign.com<mailto:kdrazek@verisign.com>> wrote: Thanks to Rosemary and Holly for this revised document. I would very much welcome a comparison of Sole Member, Sole Designator and Board proposal, as described in the paragraph excerpted below: “As discussed at length leading up to the CCWG’s decision to propose the Community Mechanism as Sole Member Model, a Sole Designator Model would provide an alternative that provides fairly robust community powers and enforceability though less than the Sole Member Model. We are preparing at the request of the CCWG a PowerPoint comparison of the Community Mechanism as Sole Member Model, the Sole Designator Model and the Board Proposal. Our initial assessment is that the Board Proposal -- due to lack of the legal rights that can attach to a member and a designator -- is closest to the current status quo and would deliver the least robust and enforceable community powers of the three models.” If the Board views membership as unacceptable, and the community is willing and able to accept that membership is off the table, then the Sole Designator model is likely to be the best, most mutually acceptable compromise solution. If we can evaluate Sole Designator against our goals and on the spectrum of choices, it will help to inform our decision-making about next steps, the path forward, and the final proposal. I look forward to seeing the assessment. Regards, Keith From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Rosemary E. Fei Sent: Saturday, September 26, 2015 6:27 PM To: León Felipe Sánchez Ambía (leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>); Thomas Rickert; Mathieu Weill (Mathieu.Weill(a)afnic.fr<mailto:Mathieu.Weill@afnic.fr>) Cc: Sidley ICANN CCWG (sidleyicannccwg(a)sidley.com<mailto:sidleyicannccwg@sidley.com>); ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>; ICANN-Adler; Accountability Cross Community (accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>) Subject: [CCWG-ACCT] REVISED memo Dear Co-Chairs: We have made some clarifying changes to the memo we sent earlier this week; a revised version is attached. We would appreciate it if staff could post this in place of the prior version. Thank you. Rosemary and Holly Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) rfei(a)adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com> _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email. _______________________________________________ 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. 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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Fwd: Kavouss alternative proposal
by León Felipe Sánchez Ambía Sept. 28, 2015

Sept. 28, 2015

Resending this to the right list. Sorry for cross-posting and confusion. Best regards, León > Inicio del mensaje reenviado: > > De: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> > Asunto: Kavouss alternative proposal > Fecha: 26 de septiembre de 2015 9:04:13 GMT-7 > Para: ccwg-internet-governance(a)icann.org > > Dear all, > > This is the alternative proposal to which Kavous spoke. I am circulating this per his request. > > > Best regards, > > > León >

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Re: [CCWG-ACCT] FW: ICYMI: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet
by Aikman-Scalese, Anne Sept. 28, 2015

Sept. 28, 2015

I rest my case as to the Congressional hurdles we face and the airtight case that must be delivered to Congress by the NTIA. This question of oversight of(or backstop to) the NTIA supervision of the Internet is likely to get much more press as the Republican primary proceeds. Agree with Chris Disspain that the difference between the AoC commitment on location and jurisdiction is going to be an issue but there is nothing we can do about it at this stage - that IS the Multistakeholder process and either we follow and believe in that process or we don't. This is why time was spent in Los Angeles carefully reviewing ALL public comments. The process followed by the CCWG - ACCT must be systematic and must be reflective of the process followed in previous Working Groups. If not, we have zero integrity and zero claim that "The Multi-Stakeholder process is working and is a beautiful thing." I continue to applaud our Chairs for their handling of this Committee and their reasoned approach to the consideration of public comment from all commenters. As previously stated, I personally support the notion that "tweaks" can be made to the Sole Member model in order to address concerns raised in the public comment period, including comments received from the Board. Further, I would favor an agreement by ICANN to indemnify any director who might be sued for violating a fiduciary duty for following a decision taken by the Sole Member or for resigning because of a decision taken by the Sole Member. Let's face the fact that the entire approved Final Report of the CWG-Stewardship also sets the boundaries of certain Accountability work that must be accomplished by the CCWG-ACCT. Rejecting those boundaries and starting all over again would clearly be "top-down." The CCWG-ACCT Work Stream 1 Charter is also a reality which imposes boundaries. A further boundary is the emphasis on Human Rights - which arguably has nothing to do with what is absolutely the "minimum necessary" for the IANA transition to take place. We are where we are as a result of our beloved "Multistakeholder Process" so it seems appropriate to ask all public commenters, including the Board and ICANN staff, to embrace these facts as we also embrace the transition timing that we are urged to honor as another boundary or condition that must be satisfied and must occur "before the storm." At this point, it may be appropriate to ask the Board (and Jones Day) to address in writing before Dublin what restrictions on Member powers it would advise to mitigate the risks identified in its public comments. Anne [cid:image002.gif@01D0F9DE.A4D8C530] 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 Paul Rosenzweig Sent: Monday, September 28, 2015 10:54 AM To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: ICYMI: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet The below from Senator Cruz is self-explanatory. I have no doubt it will make Dr. Lisse very happy. Paul Paul Rosenzweig 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 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=articl…> ICYMI- U.S. Sen. Ted Cruz (R-Texas), along with Senate Judiciary Committee Chairman Charles Grassley (R-Iowa), House Judiciary Committee Chairman Bob Goodlatte (R-Va.), and Rep. Darrell Issa (R-Calif.), Chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, sent a letter to the Government Accountability Office (GAO) requesting an affirmative determination of whether the Obama Administration's plan to transfer U.S. oversight of the Internet violates the Constitution. The Wall Street Journal's columnist L. Gordon Crovitz reported on the letter today in his Information Age column, "Not Obama's to Give Away."<http://www.wsj.com/articles/not-obamas-to-give-away-1443386189> From: Press, Cruz (Cruz) Sent: Monday, September 28, 2015 11:54 AM Subject: RELEASE: Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet [cid:image003.png@01D0F9DE.A4D8C530] UNITED STATES SENATE Sen. Ted Cruz Press Office FOR IMMEDIATE RELEASE Cruz Press Office: 202-228-7561 Phil Novack: phil_novack(a)cruz.senate.gov<mailto:phil_novack@cruz.senate.gov> September 28, 2015 Sen. Cruz Leads Bicameral Letter Asking GAO to Determine Whether Obama Administration Has Power to Give Away the Internet Judiciary Chairmen Grassley and Goodlatte, with Rep. Issa, join Cruz to get answers on whether Administration's plan violates the Constitution WASHINGTON, D.C. - U.S. Sen. Ted Cruz (R-Texas), along with Senate Judiciary Committee Chairman Charles Grassley (R-Iowa), House Judiciary Committee Chairman Bob Goodlatte (R-Va.), and Rep. Darrell Issa (R-Calif.), Chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, sent a letter to the Government Accountability Office (GAO) requesting an affirmative determination of whether the Obama Administration's plan to transfer U.S. oversight of the Internet violates the Constitution. The Wall Street Journal's columnist L. Gordon Crovitz reported on the letter today in his Information Age column, "Not Obama's to Give Away."<http://www.wsj.com/articles/not-obamas-to-give-away-1443386189> Sen. Cruz said: "Under Article IV, Section 3 of the Constitution, Congress has the exclusive power 'to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' If the contract governing U.S. oversight of the Internet is indeed government property, the Administration's intention to cede control to the 'global stakeholder community' -- including nations like Iran, Russia and China that do not value free speech and in fact seek to stifle it -- is in violation of the Constitution and should be stopped." The letter is being sent at a time when efforts by both the Administration and Congress, via the DOTCOM Act, are underway to facilitate the transition of U.S. control over the Internet without an affirmative vote from Congress. In another action to protect U.S. control of the Internet, Sen. Cruz recently filed the DOTCOM Act<http://www.cruz.senate.gov/?p=press_release&id=2402> as an amendment to the highway reauthorization bill the Senate considered in July. Cruz's amendment is identical to the original version of the DOTCOM Act being considered by the Senate with one exception: it would require Congress to have an affirmative up or down vote on the Obama Administration's plan to give away the Internet. Read the full text of the Cruz-Grassley-Goodlatte-Issa letter here<http://cruz.senate.gov/files/documents/Letters/20150922%20Grassley%20Cruz%2…> and below: September 22, 2015 Mr. Gene Dodaro Comptroller General U.S. Government Accountability Office 441 G Street, N.W. Washington, DC 20548 Dear Mr. Dodaro: On March 14, 2014, the National Telecommunications and Information Administration ("NTIA") announced its intent to relinquish oversight of Internet domain name functions to the "global stakeholder community." This proposed transition raises questions about NTIA's authority to transfer possession and control of critical components of the Internet's infrastructure to a third party. The Internet as we know it has evolved from a network infrastructure first created by Department of Defense researchers. One key component of that infrastructure is the root zone file, which the federal government currently designates as a "national IT asset."[1] Creation of the root zone file was funded by the American taxpayer and coordinated by the Department of Defense, and the file has remained under United States control ever since. Under Article IV, Section 3 of the Constitution, Congress has the exclusive power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." One question arising from NTIA's decision to transfer its Internet oversight functions to a third party is whether NTIA may relinquish possession and control of the root zone file-or any other similar component of the Internet that was financed and developed by the United States-without authorization from Congress. This concern was raised in 2000 by the Government Accountability Office ("GAO"), which questioned whether NTIA could relinquish authority over the root zone file and concluded that it was "unclear whether such a transition would involve a transfer of government property to a private entity."[2] The 2000 GAO report further detailed that the Department of Commerce advised the GAO at the time that "we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary" to authorize transfer of the root zone file. Congress should be made aware of the legal status of the root zone file-or any other potential government property-before it makes any final decisions about whether to transfer the government's Internet oversight functions to a third party. Some observers and parties involved in the proposed transfer have asserted that the termination of NTIA's contract with ICANN would not result in the transfer of United States Government property.[3] Others believe that termination of this contract would result in government property being transferred to ICANN and point to a number of factors that would indicate that the root zone file and other contractual deliverables are property of the United States. Supporters of this position point to the fact that the United States acquired title to the root zone file because it was invented pursuant to Department of Defense contracts.[4] In addition, the United States has long claimed ownership or control over the root zone file. For example, President Clinton's Internet "czar" Ira Magaziner asserted United States ownership of the entire Domain Name System because "[t]he United States paid for the Internet, the Net was created under its auspices, and most importantly everything [researchers] did was pursuant to government contracts."[5] Additionally the Commerce Department's contract with ICANN explicitly declares that "[a]ll deliverables provided under this contract," including the "automated root zone," are "the property of the U.S. government."[6] And Verisign and ICANN contracts make clear that changes to the root zone file cannot be made without approval of the Department of Commerce.[7] Congress has also been actively engaged in managing the root zone file. Recently, it enacted the Consolidated and Further Continuing Appropriations Act of 2015, which explicitly prohibited the Commerce Department from using federal funds to relinquish stewardship of the domain name system, "including responsibility with respect to the authoritative root zone file."[8] Given this history, we are concerned that NTIA might potentially relinquish ownership of some form of United States property. To inform the Congress so that it may take any necessary and appropriate steps regarding NTIA's planned transition of the IANA functions, we would like the GAO to conduct a review to address a number of specific questions. 1. Would the termination of the NTIA's contract with ICANN cause Government property, of any kind, to be transferred to ICANN? 2. Is the authoritative root zone file, or other related or similar materials or information, United States government property? 3. If so, does the NTIA have the authority to transfer the root zone file or, other related materials or information to a non-federal entity? Please include in this report a description and analysis of the relevant legal authorities and case law dealing with the transfer of United States Government property. We understand that to perform this work, GAO will need to conduct both significant audit work and complex legal analysis. Please contact Jonathan Nabavi (Chairman Grassley), Sean McLean (Senator Cruz), Vishal Amin (Chairman Goodlatte), and Veronica Wong (Congressman Issa) of our staffs if there are questions regarding this request. Sincerely, ______________________ _________________________ Charles E. Grassley Ted Cruz Chairman United States Senator Senate Committee on the Judiciary _______________________ __________________________ Bob Goodlatte Darrell Issa Chairman Member of Congress House Committee on the Judiciary [1]See, Verisign Company Information: http://www.verisign.com/en_US/company-information/index.xhtml [2]U.S. Government Accountability Office., GAO-B-284206, Department of Commerce: Relationship with the Internet Corporation for Assigned Names and Numbers (2000) [3]Letter from Lawrence Strickling, Assistant Sec'y for Commc'ns and Info., U.S. Dep't of Commerce, to Representative Sean Duffy & Representative James Sensenbrenner, U.S. House of Representatives (June 11, 2015) [4]U.S. Congressional Research Service. Internet Governance and the Domain Name System: Issues for Congress (R42351; August 18, 2015), by Lennard G. Kruger [5]Jack Goldsmith & Tim Wu, Who Controls the Internet?: Illusions of a Borderless World 41 (2006) [6]Internet Assigned Numbers Authority Functions Contract between U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers. Contract Number SA1301-12-CN-0035. October 1, 2012. [7]See, Amendment 11 of the Cooperative Agreement NCR-9218742 between the U.S. Department of Commerce and Verisign, Inc. Also see, Internet Assigned Numbers Authority Functions Contract between U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers. Contract Number SA1301-12-CN-0035. October 1, 2012. [8]Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No 113-235, § 540, 128 Stat. 2130, 2217 (Dec. 16, 2014) ### ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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.

2 1

The Road to Dublin....
by Drazek, Keith Sept. 28, 2015

Sept. 28, 2015

FYI, as I said during today's F2F meeting in Los Angeles: As we take stock and look ahead to the coming weeks and the road to Dublin, here are my thoughts: 1. We need to continue our review and assessment of all public comments from the second public comment period. We have an established process that must be followed. 2. From the public comments received, including the Board's, we need to identify the areas of our proposal that require additional work, including further explanation and/or adjustment. 3. For the areas that require adjustment, we need to clearly show how the adjustments evolved from the public comments and discussions. This will be important to inform any follow-on proposal and public comment period. We need to show our work. This was made clear by Larry Strickling's comments and recent blog post. 4. As part of that process, or in parallel, I think we should consider Ira Magaziner's proposal to delegate some follow-on "solutioning" work to smaller groups. The public comment response to our second proposal has shown there's a lot of work to be done, and as Ira and Larry both noted, time is getting short. 5. Everyone must be prepared to compromise to reach consensus, without compromising our well-established goals. This is true for the Board as much as it is for the CCWG and the community. Regards, Keith

3 2

Has Fadi's presentation been circulated yet?
by Chartier, Mike S Sept. 28, 2015

Sept. 28, 2015

2 1

Re: [CCWG-ACCT] The Road to Dublin....
by avri doria Sept. 28, 2015

Sept. 28, 2015

Hi, I think slice and dice on the proposal would lose its internal coherence as a proposal. If we change anything substantive, I think the entire thing needs to go out for review. I know I just agreed to a 'moratorium,' but I don't want to leave ideas sitting long enough for them to be called 'agreed upon.' avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au> </div><div>Date:09/27/2015 7:49 PM (GMT-05:00) </div><div>To: accountability-cross-community(a)icann.org </div><div>Cc: </div><div>Subject: Re: [CCWG-ACCT] The Road to Dublin.... </div><div> </div>Hello Becky, >> I agree but we need to keep in mind that the CCWG cannot speak unilaterally for the community. To the extent we move off the (substantial) portion of the draft proposal that has consensus support, and to the extent we introduce new solutions in those areas where consensus may not be fully formed, we must go back to the community. The Board needs to understand and respect that. Thanks – we have also discussed this and agree. One approach I guess could be to put out specific sections that have substantial updates for comment. Regards, Bruce Tonkin

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Re: [CCWG-ACCT] The Road to Dublin....
by Burr, Becky Sept. 28, 2015

Sept. 28, 2015

I agree but we need to keep in mind that the CCWG cannot speak unilaterally for the community. To the extent we move off the (substantial) portion of the draft proposal that has consensus support, and to the extent we introduce new solutions in those areas where consensus may not be fully formed, we must go back to the community. The Board needs to understand and respect that. From: Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Date: Sunday, September 27, 2015 at 1:22 PM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Road to Dublin.... Hello Keith, I support your suggestions below. In particular points 4 and 5 below. Regards, Bruce Tonkin FYI, as I said during today’s F2F meeting in Los Angeles: As we take stock and look ahead to the coming weeks and the road to Dublin, here are my thoughts: 1. We need to continue our review and assessment of all public comments from the second public comment period. We have an established process that must be followed. 2. From the public comments received, including the Board’s, we need to identify the areas of our proposal that require additional work, including further explanation and/or adjustment. 3. For the areas that require adjustment, we need to clearly show how the adjustments evolved from the public comments and discussions. This will be important to inform any follow-on proposal and public comment period. We need to show our work. This was made clear by Larry Strickling’s comments and recent blog post. 4. As part of that process, or in parallel, I think we should consider Ira Magaziner’s proposal to delegate some follow-on “solutioning” work to smaller groups. The public comment response to our second proposal has shown there’s a lot of work to be done, and as Ira and Larry both noted, time is getting short. 5. Everyone must be prepared to compromise to reach consensus, without compromising our well-established goals. This is true for the Board as much as it is for the CCWG and the community. Regards, Keith

4 3

Take a break team
by Jordan Carter Sept. 28, 2015

Sept. 28, 2015

Hi all May I respectfully suggest that after the past few days, the wise course is to back off and calm down, rather than building up to fights on the list? Best Jordan -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan(a)internetnz.net.nz Sent on the run, apologies for brevity

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Summary of current Board sentiment
by Bruce Tonkin Sept. 28, 2015

Sept. 28, 2015

Hello All, I am hearing that there may have been some misunderstandings of Steve's comments earlier about the willingness of the Board to work with the CCWG and the wider community on implementing the accountability improvements. I just want to clarify: The Board supports the Board public comments that were sent a couple weeks ago. The Board supports the improvements to accountability recommended by the CCWG - including improvements to the IRP, processes to remove Board members and the whole Board, requiring community approval of bylaws changes, and requiring the Board to work with the community to reach consensus on strategic plans, operating plans and budgets. The Board is very open to continuing to work with the CCWG to find the most effective way of implementing these important accountability changes. The Board put forward the MEM proposal for consideration by the CCWG as an alternative to the single member model for enforcement of new accountability measures in the bylaws, but recognizes that there may be other alternatives that are more effective. The discussions in the CCWG this afternoon highlight that there is a way forward to discuss how to effectively implement the accountability improvements. Regards, Bruce Tonkin

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Re: [CCWG-ACCT] Summary of current Board sentiment
by avri doria Sept. 28, 2015

Sept. 28, 2015

Hi, Or we may have to realize that the Board's fear of the community and the FUD about what we might do, is so great that they will never be able to accept a membership model. The historical and continuing aversion of ICANN's Board and legal advisers to the notion of allowing the community to have any kind of membership may just be part of its nature and something they are incapable of 'blinking' about. It may be the threshold ceiling this experiment in bottom up multistakeholder process can never move beyond. ICANN may, by its very nature and history, never be able to become fully what it aspires to be recognized as. It then may be up to the community to decide to take whatever crumbs of accountability we can get. One thing I am certain of, one way or another, ICANN will come out of this process changed. It will either continue to lead in developing a true multistakeholder model. Or it may just settle into a slow decline as another organization that never lived up to its promise. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Dr Eberhard W Lisse <epilisse(a)gmail.com> </div><div>Date:09/28/2015 8:15 AM (GMT-05:00) </div><div>To: CCWG Accountability <accountability-cross-community(a)icann.org> </div><div>Cc: Lisse Eberhard <directors(a)omadhina.NET> </div><div>Subject: Re: [CCWG-ACCT] Summary of current Board sentiment </div><div> </div>Ed, of course we must give special attention to the Board. Stare them in the face until they blink :-)-O el -- Sent from Dr Lisse's iPad mini On 28 Sep 2015, at 06:27, Edward Morris <egmorris1(a)toast.net> wrote: Kavouss, I personally attach a very hight level of support to the Board,s comments which stem from 17 years of valuable experience. While I support and appreciate public comments but we should give special attention to the valuable comments from the Board and should not put those comments in the sane basket of any other comment received from individual . I respectfully disagree with this sentiment. I give no greater weight to the comments of a member of the Board than I do to a comment from the least privileged amongst us. I give power to the idea, not to the person or the organisation making it. Ed _______________________________________________ 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] Summary of current Board sentiment
by avri doria Sept. 27, 2015

Sept. 27, 2015

Hi, So nothing changed in LA, and any understandings to the contrary are mistaken? avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au> </div><div>Date:09/27/2015 10:48 AM (GMT-08:00) </div><div>To: CCWG Accountability <accountability-cross-community(a)icann.org> </div><div>Cc: </div><div>Subject: Re: [CCWG-ACCT] Summary of current Board sentiment </div><div> </div>Hello Eberhard, >> can you please "share your understanding" of what you mean below in the form of an executive summary? OK - I will try. - the Board was getting some feedback that it wasn't aligned with the detailed comments that it submitted - so we wanted to confirm that yes the comments we submitted represent our views on the draft proposal, and our suggestions for improvement. - the Board wanted to be clear that we want to work with the CCWG on a common proposal that we can all support. As Keith noted, this means all including the Board will need to compromise, without compromising our joint goals. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

3 2

Who'll blink first?
by Dr Eberhard W Lisse Sept. 27, 2015

Sept. 27, 2015

Becky, while in transit... I agree, but... :-)-O We have (broad) Consensus on a report, and have put it out for Public Comment. So we will now take the comments and apply them to the report. That will be subject to a Consensus Call (if necessary) and another round of Public Comment, if necessary. We also hear that members who did not object against the report now wish to do so, or rather to individual sections. My view is that that train has left the station. But, once we have decided what we want, we'll finalize it, send it to the Board and move on to Work Stream 2. If the Board doesn't like it, well, tough luck, they can communicate to the NTIA whatever they want, but not as what the Community wants. If it needs more time, Mr Strickling can extend the contract so we can figures this stuff out in an orderly, thorough and deliberate manner. I fault our Co-Chairs, not only for the chaotic conduct of the meeting (and the Board call) but also for their inept running of the CCWG, per se. We hear the same arguments again and again and again. We do not progress. The break-out sessions were perhaps a step in the right direction (even though I am personally not a friend of break-out session, and they did give Cheryl a forum to provide light amusement), but the 2 minute sound bites, closing the speakers list, and then moving to the next agenda is not going to achieve anything. As I said on Friday, we need to focus on one issue at a time, advance it to finalization, even if it takes a while, and then be done with it. And I mean done. As in DONE. We are a diverse group and our Co-Chairs are unable to get comprises going within the group, which they substitute by pushing what they perceive as having gained traction. That makes it necessary to have Consensus Calls at the end of a topic and move on. What I also think is extremely unhelpful is that we do not differ between members and participants. Sebastien alluded to this in Paris, and I agree that for example a seating arrangement will be helpful during F2F. But with regards to the blinking, we don't need the transition, the Board does. We need an orderly transition, if a transition takes place. So we need to stiffen stiffen the member's back bone and if we don't like the Board proposal, reject it. And move on. el -- Sent from Dr Lisse's iPad mini > On 27 Sep 2015, at 13:01, Burr, Becky <Becky.Burr(a)neustar.biz> wrote: > > I agree but we need to keep in mind that the CCWG cannot speak unilaterally for the community. To the extent we move off the (substantial) portion of the draft proposal that has consensus support, and to the extent we introduce new solutions in those areas where consensus may not be fully formed, we must go back to the community. The Board needs to understand and respect that. > > From: Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au> > Date: Sunday, September 27, 2015 at 1:22 PM > To: Accountability Community <accountability-cross-community(a)icann.org> > Subject: Re: [CCWG-ACCT] The Road to Dublin.... > > Hello Keith, > > I support your suggestions below. In particular points 4 and 5 below. > > Regards, > Bruce Tonkin > > > FYI, as I said during today’s F2F meeting in Los Angeles: > > As we take stock and look ahead to the coming weeks and the road to Dublin, here are my thoughts: > > 1. We need to continue our review and assessment of all public comments from the second public comment period. We have an established process that must be followed. > 2. From the public comments received, including the Board’s, we need to identify the areas of our proposal that require additional work, including further explanation and/or adjustment. > 3. For the areas that require adjustment, we need to clearly show how the adjustments evolved from the public comments and discussions. This will be important to inform any follow-on proposal and public comment period. We need to show our work. This was made clear by Larry Strickling’s comments and recent blog post. > 4. As part of that process, or in parallel, I think we should consider Ira Magaziner’s proposal to delegate some follow-on “solutioning” work to smaller groups. The public comment response to our second proposal has shown there’s a lot of work to be done, and as Ira and Larry both noted, time is getting short. > 5. Everyone must be prepared to compromise to reach consensus, without compromising our well-established goals. This is true for the Board as much as it is for the CCWG and the community. > > Regards, > Keith > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

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PLEASE READ: Face-to-Face logistics Day 1
by Brenda Brewer Sept. 25, 2015

Sept. 25, 2015

Hello everyone! As we prepare to kick of Day 1 of the CCWG ACCT F2F Meeting, I wanted to share a few items of interest. Meeting location: Penthouse Ballroom - First, go to Mezzanine level of hotel, then go to elevator at end of hall. Select (P) for penthouse. WIFI Information SSID: ICANN--‐CCWG--‐2015 PW: LosAngeles2015 Agenda: https://community.icann.org/x/IZlYAw Reading List: https://community.icann.org/x/EZlYAw Please note two additional comments have been added to PC2 Tool, which is attached. Adobe Connect: <https://icann.adobeconnect.com/accountability/> <https://icann.adobeconnect.com/dialogue/> https://icann.adobeconnect.com/dialogue/ Best, Brenda

1 0

Agenda & Reading List - LA Meeting
by Alice Jansen Sept. 25, 2015

Sept. 25, 2015

Dear all, Attached to this email you will a draft agenda Cochairs have prepared in anticipation of your Los Angeles Face-to-Face meeting. This agenda is subject to change and should not be considered final. Please note that the reading list page for this meeting can be found at: https://community.icann.org/display/acctcrosscomm/Reading+List+--+Face-to-F… The following wiki page includes information on the meeting - https://community.icann.org/pages/viewpage.action?pageId=56135261 We look forward to seeing you in LA or online. Best regards Alice

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Re: [CCWG-ACCT] Your public comment re replacement of IANA provider
by Alan Greenberg Sept. 25, 2015

Sept. 25, 2015

Bruce, The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws. In the body of the Board comments, it says that the Board is proposing the MEM to allow the community ensure that ICANN is complying with its Articles of Incorporation and Bylaws. However, in the "Memo on Proposed Approach for Community Enforceability", it says that arbitration may be used only for violation of Fundamental Bylaws. Being able to seek arbitration over violations of AoI and all bylaws is VERY different from just being able to enforce the Fundamental Bylaws. Am I reading this incorrectly? If not, can you please elaborate? Alan At 17/09/2015 05:13 AM, Bruce Tonkin wrote: >..... > >The MEM proposal allows the community to ensure the Board is >following the bylaws, and that the decision of an independent panel >becomes binding. > >.....

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new blog
by Chris Disspain Sept. 25, 2015

Sept. 25, 2015

All, Forwarded at the request of John Poole who cannot post to the list. > http://www.domainmondo.com/2015/09/china-caict-objects-to-icann-ccwg.html <http://www.domainmondo.com/2015/09/china-caict-objects-to-icann-ccwg.html> Cheers, Chris

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MEM and enforceability
by McAuley, David Sept. 25, 2015

Sept. 25, 2015

I appreciate the board's input and take it as a good faith effort to enhance and evolve the CCWG proposal. However, I have, with respect, three critiques of it. First, the ability to create a remedy if the MEM panel finds against the board is completely within the board's discretion. Even a slight (even inconsequential) "remedy" would be a remedy and would, effectively, bar any viable avenue to court enforcement. Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board's fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion. And, third, if we went down this path, the board's ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court. David McAuley

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