September 2015 - Accountability-Cross-Community

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

Sept. 11, 2015

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

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

Sept. 11, 2015

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

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

Sept. 11, 2015

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

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

Sept. 11, 2015

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

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

Sept. 11, 2015

And THAT is the difference between mechanismes that a civilian lawyer would propose compared with common layers (like me). The point is if this is done by contractual obligation, well, no one HAS to comply with a contractual obligation. You can refuse. (Someone did it do me just today). THEN you have to sue. It can drag on. All the while the true IANA is kept out of their name. But if the property ownership is located with a trusted third party, and the licence comes to an end (say by a change of IANA function manager), then no enforcement is needed -- the property results to its beneficial owner automatically who can relicence it. Similar aims, different processes. I know which I prefer. On 18/08/15 19:57, Peter Vergote wrote: > Nigel and all, > > I think that ICANN could continue to be the owner of the mentioned domain names upon condition that there is a clear and unambiguous contractual commitment that the ownership of those domain names will be transferred to the new IANA Functions Operator in the event that this would no longer be ICANN. > > In practice you achieve pretty much the same as with your suggestion with a trusted third party but I think the above is probably easier to implement. > > The same should apply for all trademarks relating to IANA and currently in ownership by ICANN. > > For the record, when we are talking about IP rights, we are in fact referring to the trademarks and alikes. Domain name registrations are not IP rights it’s more or less a form of possession but in legal nature not an IP right. Domain names can be claimed back through UDRP on the basis of a matching IP right e.g. a trademark. > > Best, > > Peter > > Peter Vergote > Legal & Corp. Affairs Manager > +32 16 29 89 28 > +32 474 790096 > www.dnsbelgium.be <http://www.dnsbelgium.be/> > > > > > > > > > > On 18/08/15 19:41, "Nigel Roberts" <nigel(a)channelisles.net> wrote: > >> >> Steve >> >> You are right and for that reason ICANN must not have the IP rights to >> the IANA.ORG domain name, or indeed unfettered control (as this >> discussion implies. >> >> Insteadm it must have a licence allowing it to be used day-to-day *BY* >> ICANN, as long as it is the IANA contractor. It must have de-facto >> day-to-day operational control. But that's it. >> >> Therefore the Registrant of IANA.ORG needs to become a trusted third >> party that holds the registration ON TRUST (in the legal sense) for the >> beneficial owner (call that RightsCo if you like), who provides an >> unlimited-use license to ICANN (or any other company that might get the >> IANA contract in the future) under the terms of its carrying out the >> IANA function. >> >> >> >> On 18/08/15 17:20, Steve Crocker wrote: >>> Becky, >>> >>> Not quite right. I believe there are three trademarks, but far more important than the trademarks is the control of the iana.org domain name. Despite the thousands of words of email devoted to the trademarks, in the case of IANA they’re of only modest, at best, practical importance. The domain name, however, is a key piece of the operation. >>> >>> Steve >>> >>> >>> >>> On Aug 18, 2015, at 12:15 PM, Burr, Becky <Becky.Burr(a)neustar.biz> wrote: >>> >>>> I think that the IP rights in question are limited to the IANA trademark, >>>> which the USG transferred to ICANN in 1999 or so. >>>> >>>> J. Beckwith Burr >>>> Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer >>>> 1775 Pennsylvania Avenue NW, Washington, DC 20006 >>>> Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / >>>> becky.burr(a)neustar.biz / www.neustar.biz >>>> >>>> >>>> >>>> >>>> >>>> >>>> On 8/18/15, 3:11 AM, "Dr Eberhard Lisse" <el(a)lisse.NA> wrote: >>>> >>>>> Gabi, >>>>> >>>>> thank you for posting this. >>>>> >>>>> All, >>>>> >>>>> I want to place on record, that this needs SIGNIFICANT thought, and >>>>> considerably more detail than what is provided here. >>>>> >>>>> In particular what actual Intellectual Property Rights do they mean, >>>>> EXACTLY? And I would like to see them in a numbered list :-)-O >>>>> >>>>> Most certainly will the root zone (database) on which the NSF is >>>>> performed, and the contacts database (DEF) NOT fall under this. >>>>> >>>>> >>>>> Without having thought this through to the end, however, I think this is >>>>> a WS1 item for the CCWG Accountability, and needs to be dsicussed on >>>>> tonight's call. >>>>> >>>>> >>>>> Fortunately, we have time, the transition has been postponed to >>>>> 2016-09-30 last Friday >>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ntia.doc.gov_blog_ >>>>> 2015_update-2Diana-2Dtransition&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFO >>>>> ifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH_5RfpEaBO3-n >>>>> jFirHo3sc&s=anSaVt_Y73vPTokKGDZODQOgEpcSMCQYfov_F17TFqo&e= >>>>> >>>>> greetings, el >>>>> >>>>> >>>>> On 2015-08-18 09:16, Gabriella Schittek wrote: >>>>>> Dear all, >>>>>> >>>>>> ICANN has released a statement regarding the IANA Intellectual Property >>>>>> Rights: >>>>>> >>>>>> === >>>>>> ICANN Statement Regarding IANA Intellectual Property Rights (IPR)15 >>>>>> August 2015 >>>>>> ICANN supports the IANA Stewardship Transition Group (ICG) proposal and >>>>>> the underlying proposals from the Community Working Group (CWG), the >>>>>> Consolidated RIR IANA Stewardship Proposal (CRISP) team and the Planning >>>>>> for the IANA/NTIA Transition (IANAPLAN) working group. >>>>>> The ICANN Board is focused on how to implement the Intellectual Property >>>>>> Rights (IPR) component of the proposal. The Board believes that for >>>>>> stability and pragmatic operational reasons, the IANA Functions Operator >>>>>> must have operational control over the IANA.ORG >>>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__iana.org_&d=AwICAg&c >>>>>> =MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=x >>>>>> EvMoIyL67gEqHJRspVNVH_5RfpEaBO3-njFirHo3sc&s=4i-xg4Yjhd2u-vOhYZeKXLv1fPbl >>>>>> EqzcJUU3MkUOa58&e= > domain. >>>>>> During the transition, ICANN is prepared to transfer full ownership of >>>>>> the IANA-related trademarks to a neutral third party mutually agreed >>>>>> among the operational communities with the understanding that ICANN, as >>>>>> the current IANA Functions Operator, will be granted license to those >>>>>> trademarks and ICANN will maintain operational control of the IANA.ORG >>>>>> >>>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__iana.org_&d=AwICAg&c >>>>>> =MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=x >>>>>> EvMoIyL67gEqHJRspVNVH_5RfpEaBO3-njFirHo3sc&s=4i-xg4Yjhd2u-vOhYZeKXLv1fPbl >>>>>> EqzcJUU3MkUOa58&e= > domain for as long as ICANN remains the IANA >>>>>> Functions Operator. >>>>>> If the transfer during the transition affects the timeline, we advise >>>>>> delay until after the transition. In that event ICANN is ready to hold >>>>>> the IPR as interim measure but commits to transfer it within 120 days >>>>>> after the neutral third party is identified by the operational >>>>>> communities. >>>>>> We believe this is neutral and in the public interest. We look forward >>>>>> to hearing from anyone in the community. >>>>>> >>>>>> === >>>>>> >>>>>> See >>>>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_a >>>>>> nnouncement-2D2015-2D08-2D15-2Den&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62c >>>>>> JFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH_5RfpEaB >>>>>> O3-njFirHo3sc&s=kkb9yxPPFQICrdDt6_by0xp5V6I-9OPO6Ap5eKlTttQ&e= >>>>>> >>>>>> >>>>>> Kind regards, >>>>>> >>>>>> Gabi >>>>>> >>>>>> >>>>>> >>>>>> _______________________________________________ >>>>>> ccTLDcommunity mailing list >>>>>> ccTLDcommunity(a)cctld-managers.org >>>>>> >>>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.lists.cctld-2Dman >>>>>> agers.org_mailman_listinfo_cctldcommunity&d=AwICAg&c=MOptNlVtIETeDALC_lUL >>>>>> rw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH >>>>>> _5RfpEaBO3-njFirHo3sc&s=hj0Oa8KWrcB67Gt8uRpbH-r3gLgTrpp6HraDXEfJoYU&e= >>>>>> >>>>>> To unsubscribe please send a blank email to >>>>>> ccTLDcommunity-unsubscribe(a)lists.cctld-managers.org >>>>>> >>>>> >>>>> -- >>>>> Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) >>>>> el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) >>>>> PO Box 8421 \ / >>>>> Bachbrecht, Namibia ;____/ >>>>> _______________________________________________ >>>>> ccTLDcommunity mailing list >>>>> ccTLDcommunity(a)cctld-managers.org >>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.lists.cctld-2Dmana >>>>> gers.org_mailman_listinfo_cctldcommunity&d=AwICAg&c=MOptNlVtIETeDALC_lULrw >>>>> &r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=xEvMoIyL67gEqHJRspVNVH_5R >>>>> fpEaBO3-njFirHo3sc&s=hj0Oa8KWrcB67Gt8uRpbH-r3gLgTrpp6HraDXEfJoYU&e= >>>>> >>>>> To unsubscribe please send a blank email to >>>>> ccTLDcommunity-unsubscribe(a)lists.cctld-managers.org >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>>

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

Sept. 11, 2015

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

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

Sept. 10, 2015

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

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

Sept. 10, 2015

All In preparation for our call today, I wanted to share with you the following that I pulled from the hearing that the Senate Commerce Committee held earlier this year: *** The Chairman: Will the ICANN Board send a proposal to NTIA that lessens the Board's power or authority? Mr. Chehade: We will if the community and the stakeholders present us with a proposal. We will give it to NTIA, and we committed already that we will not change the proposal, that if we have views on that proposal, we should participate with the community. Once that proposal comes from our stakeholders, we will pass it on to NTIA as is. *** I would read this as a commitment from ICANN and the Board. Paul Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9>

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

Sept. 9, 2015

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

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

Sept. 9, 2015

Dear Co-Chairs I was on the line by audio only so I did not intervene when the discussion turned to Los Angeles. I am on record as thinking that an ill-prepared meeting with the Board will do more harm than good, as will a truncated one, and associate myself with Malcom on the underlying question. Leaving that aside, however, I offer the following practical observation - time is fleeting. I think that, at a minimum, the Co-Chairs need to confirm a meeting in LA (currently thought to be the 25th and 26th) no more than 2 weeks prior - i.e. no later than this Friday. I also think that, at a minimum, the substance of the Board's comments that will be the subject of discussion should be circulated no later than 1 week prior - i.e. September 18 - so that those who cannot attend in person have an adequate opportunity to express their views in response. It follows as well that I would request a meeting agenda no later than, say, the 22nd of September before everyone gets on the plane . Cheers Paul Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9>

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #52 - 08 September 2015
by Brenda Brewer Sept. 8, 2015

Sept. 8, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT meeting #52 - 08 September will be available here: https://community.icann.org/x/149CAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM: CoChairs to send a notification to Bruce to ensure the message is relayed to the Board. ACTION ITEM: Recirculate the synopsis paper to determine if rationale is appropriately documented. ACTION ITEM: WP1 to further flesh out details of community forum and WP2 to initiate a call regarding draft Bylaws of IRP. Legal counsel to participate in initial WP2 call to determine workload (prior to certification of request) ACTION ITEM: Double check that there is no inconsistency in Stress Test section 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. Board interaction & next steps We have worked based on requirements and have looked at implementation models to operationalize accountability requirements. The change of reference model was to address comments from Board members (statutory rights etc). We have asked Board members to be constructive. We should remind ourselves that we are working towards the same goal. We should take Board comment as intent of good faith to take it to the next level. At this stage, we don't have enough details to assess Board comments. Our perception was that the Board had identified gaps. We can expect written input from the Board highlighting areas of agreements and variations of proposals. We should remain open-minded to good faith criticism and not be prematurely defensive. We should wait for Board's written input and carefully analyze it. We need to make clear to community that we are still in public comment period and do not want to discourage community members from providing comments. All community input is welcome and will be treated with same diligence as 1st PC period. We need to emphasize this. We need to be responsive and consider writing a note to the Board to help them navigate through this process as well. Feedback: - Any change to process creates discomfort. It is a human reaction. Some of concerns may be due to misunderstandings (e.g. budget). Creation of subgroups (CCWG & Board) may help. - Open to learning from criticism. Welcome same level of education from ICANN Board and Jones Day. Sharing this input with us could be done much sooner instead of waiting for them to flesh out their comments. We should be given chance to digest information. - It is unhelpful for the Board to state that it is "changing the model". The work of this group sustains and strengthens the multistakeholder model. It would be appropriate for us to request that the Board not treat our proposal as a proposal that changes the model. - Has the CCWG's legal counsel spoken yet with ICANN legal and/or Jones Day? --> The call has taken place. It primarily informed lawyers and JD of respective perspectives. This information will go into Board's deliberations. - JD has indicated that they are not in disagreement with legal analysis we have provided. We are awaiting to hear from JD. We will inquire whether these calls are recorded. --> We did not want discussion to be a battle of experts, but rather a discussion to exchange views. - Board focused a lot on enforceability. Disagreement is appropriate. - If we can give Board guidance, it would be to prioritize issues with our proposal. - We don't need a new proposal by Board. We must insist we are not waiting for an alternative proposal but waiting for comments on our proposal. - CCWG disappointment and frustration. Answers are contradicting. Suggest making reference to comments that have been made on the list. - We need further detail to take action and assess Board position. Board will be asked to prioritize concerns. The note will refer to comments shared on list (e.g. Avri's note) ACTION ITEM: CoChairs to send a notification to Bruce to ensure the message is relayed to the Board. Documenting our Work We need to be aware of expectations placed upon on us regarding documentation. It is part of our Charter that when we submit our final report, our group is expected to provide information on process, including PC consultations. We have received feedback in PC2 indicating that further documentation might be needed. We should prepare for further documenting. On principles - Becky has proposed synopsis of proposed changes. On IRP: we need process details for selection of panelists and need to compose rules of procedure. On RfR: Rules of procedure might be needed. CMSM: We need to document rationale as well as initial feedback for detail on community forum. In addition, there is a need for details on Bylaws. We have had a call with ICANN legal, counsel and CWG leadership to coordinate. ICANN project management will provide a plan by the end of this week. This document will be shared with the CCWG. We have received question of how GAC advice will be factored into new process. It would be valuable for our group to flesh out how community forum would work. We could go as far as suggesting showcasing it so that we answer any concerns about details of this process. Feedback: - Rationale for changes in princples, core values, commitments is needed. ACTION ITEM: Recirculate the synopsis paper to determine if rationale is appropriately documented. - WP1 started initial work on community forum. It would be viable to get more work done on this. Note to be sent out to WP1 list. - WP2 had produced draft set of Bylaws on IRP. --> Recommend discussing with lawyers ACTION ITEM: WP1 to further flesh out details of community forum and WP2 to initiate a call regarding draft Bylaws of IRP. Legal counsel to participate in initial WP2 call to determine workload (prior to certification of request) - ST 18 appears in two places. --> We need to update number of stress tests. 14 and 18 appear twice to illustrate why we need Bylaws changes. ACTION ITEM: Double check that there is no inconsistency in Stress Test section September Face-to-Face Meeting Pros and cons were exchanged on list. Feedback: - It should not be deemed a negotiation. If substantive input, the meeting would be useful. If not, it is a good opportunity to address all comments. Whether Board is active or not, meeting would be useful. - We should decide on our work flow. If meeting is to discuss with Board, opposed to it. - Agenda needed - We need to understand if Board is to talk about issues or if there to enhance their proposal. Their approach needs adjustments. Funding will be an issue. Cost benefit analysis is needed. - Meeting should not be held unless it is clear what expected outcomes are. Do not understand how this meeting fits in overall public comment period. Are the Board's views to be given more weight? Let's be cautious - how will this meeting fit in evaluation of comments - We have a lot of work to do ourselves. For that reason, meeting would be helpful to hammer out details. We can take Board's concerns with all other comments and evaluate them. Agenda needs to be set as CCWG and we need to focus on our work flow. - It will be useful for our work but we cannot tell Board we do not want to talk with them. It is an opportunity to have all Board members with us. It is important. - Unclear whether in person/remote. - If we go to LA, we should leave antagonism behind and need to work together. - If meeting goes ahead - it must be a full discussion. - Disagree that we need more funding. It is already a large group. This meeting must be a balanced meeting. We need to ensure that meeting is webcast. - Many valid comments came from participants. We should not be limiting participants' attendance. The group is in agreement that a face-to-face meeting if conducted must be well-prepared and fit in the CCWG workflow. It must be as inclusive as possible, including additional travel funding. We need to have a good documentation of Board's thoughts. There should not be any suggestions that this is a negotiation between Board and CCWG. Meeting should be kept more open to community input as such. At same time, we have heard comments that we should embrace opportunity to work with Board. We are lacking information to make a decision of whether this fits work flow. We will let Board know that we are continuing to make a decision about this and will share with them discussion that took place today. We will be able to make a decision once all comments received. A.O.B - How will we deal with comments --> Staff summarizing comments and we will need to analyze and potentially adjust our report. - Confusion about which comments should be addressed --> Let's keep comments on existing proposal.

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Board consideration and interaction with CCWG Accountability
by Mathieu Weill Sept. 8, 2015

Sept. 8, 2015

Dear Colleagues, As requested in the chat during the meeting, here is the extract from our Charter, which is actually simply quoting the Board resolution of 2014-10-16 regarding Board consideration and interaction with our group. Full Charter is available here : https://community.icann.org/display/acctcrosscomm/Charter Extract from Section V : Rules of Engagement, decision making methodologies. [...] /Resolved (2014.10.16.17), the Board commits to following the following principles when considering the Cross Community Working Group Recommendations on Enhancing ICANN Accountability and Governance:/ 1. /These principles apply to consensus-based recommendations from the Cross Community Working Group on Enhancing ICANN Accountability and Governance./// 2. /If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board./// 3. /The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution./// 4. /The CCWG will have an opportunity to address the Board's concerns and report back to the Board on further deliberations regarding the Board's concerns. The CCWG shall discuss the Board's concerns within 30 days of the Board's initiation of the dialogue./// 5. /If a recommendation is modified through the CCWG, it is returned back to the Board for further consideration. The CCWG is to provide detailed rationale on how the modification addresses the concerns raised by the Board./// 6. /If, after modification, the Board still believes the CCWG Recommendation is not in the global public interest to implement the CCWG Recommendation, the Board may send the item back to the CCWG for further consideration, again requiring a 2/3 vote of the Board for that action. Detailed rationale for the Board's action is again required. In the event the Board determines not to accept a modification, then the Board shall not be entitled to set a solution on the issue addressed by the recommendation until such time as CCWG and the Board reach agreement./ Before submitting a modified recommendation to the ICANN Board of Directors, as envisioned under 5. of the Board resolution, the CCWG-Accountability will submit a Draft Supplemental Board Report to the chartering organizations [...] best, -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Fwd: Response to request for public comment on the IANA transition
by Nigel Roberts Sept. 8, 2015

Sept. 8, 2015

Colleagues, FYI -------- Forwarded Message -------- Subject: Response to request for public comment on the IANA transition Date: Tue, 08 Sep 2015 16:18:14 +0100 From: Nigel Roberts <nigel(a)roberts.co.uk> To: public-comments(a)ianacg.org -- Nigel Roberts P O Box 1065, Alderney (C.I.) GY9 3JZ Tel. +44 1481 520618 or +44 7973 263842 (mobile)

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Re: [CCWG-ACCT] AGENDA - Call #52
by James M. Bladel Sept. 8, 2015

Sept. 8, 2015

Hello Alice & CCWG. I will be in the air during this time and likely unable to attend. I'll jump on the bridge if I'm able (flight delays, etc.) Thanks- J. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: Monday, September 7, 2015 at 2:09 To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] AGENDA - Call #52 Dear all, In anticipation of your call #52 - Tuesday, 8 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. Board interaction & next steps 3. Documenting our work 4. Community forum 5. September face-to-face meeting* 6. A.O.B Thank you, Kind regards Alice * Be kindly reminded to record your availability by today, 23:59 UTC - Doodle poll --> http://doodle.com/c8iexds666hv6ygt

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AGENDA - Call #52
by Alice Jansen Sept. 8, 2015

Sept. 8, 2015

Dear all, In anticipation of your call #52 - Tuesday, 8 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. Board interaction & next steps 3. Documenting our work 4. Community forum 5. September face-to-face meeting* 6. A.O.B Thank you, Kind regards Alice * Be kindly reminded to record your availability by today, 23:59 UTC - Doodle poll --> http://doodle.com/c8iexds666hv6ygt

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Human rights - way forward
by Mathieu Weill Sept. 8, 2015

Sept. 8, 2015

Dear Colleagues, As announced during our last call, the co-Chairs have reviewed where we are on this issue. Our group is tasked to work on the basis of consensus, and we have focused on assessing where this condition was met. It is our conclusion that : 1) our group has achieved consensus on including a human rights related Commitment in Icann's Bylaws. 2) no particular wording currently proposed achieved consensus. As a consequence, we propose to include into the public comment 2 report (in the Mission & Core value section, a draft is included below) - this assessment and a firm commitment to add a human rights related Commitment into Icann's Bylaws, - the underlying requirements expressed during the debate, - the concrete language proposals that were considered by our group so far, as examples Finally, given the strong momentum on the issue, both during the meeting and on list before and after, and taking into account the high level of complexity involved, we suggest to kick off ASAP a subgroup to further refine the requirements and assess potential options based on further studies of the current situation and "agreed-on" language. We thank you all for your understanding and commitment on this topic, as well as the extensive discussions both on list and during the calls about this. As a reminder, Minority statements filed until Saturday 12.00 UTC will be incorporated into the report to be published on Monday. Statements filed after this deadline will be published online but not incorporated into the report. Best regards, Leon, Thomas & Mathieu Co-chairs ----------------------------------------------- NEW SUBSECTION IN 3A Mission, Commitmennts & Core Values Elaborating an Icann Commitment to Human Rights The CCWG-Accountability extensively discussed the opportunity to include into Icann Bylaws a Comittment related to Human Rights. The group commissioned a legal analysis of whether the termination of the IANA contract would induce changes into Icann's obligations with regards to Human Rights (LINK). While no significant issue was found to be directly linked to the termination of the IANA contract, the group acknowledged the recurring debates around the nature of Icann's accountability towards the respect of fundamental human rights. These discussions identified the following, non-exhaustive, list of accountability-related requirements : - the NTIA criteria to maintain the openness of the Internet, including free expression and the free flow of information - the need to avoid extending Icann's mission into content regulation - the importance of assessing the impact of Icann policies on Human rights Examples of language that could serve as a Commitment were as follows : - Within its mission and in its operations, ICANN will be committed to respect the fundamental human rights of the exercise of free expression and the free flow of information. - Within its mission and in it operations, ICANN will be committed to respect internationally recognized fundamental human rights. The group has achieved consensus on including a human rights related Commitment in Icann's Bylaws. However no particular wording currently proposed achieved consensus. Reiterating its commitment to elaborate concrete proposals as part of its mandate, the CCWG-Accountability is calling for comments on this approach and the underlying requirements. -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Blog: Upcoming Comments from the ICANN Board to the ICG and CCWG-Accountability
by Grace Abuhamad Sept. 8, 2015

Sept. 8, 2015

Original link: https://www.icann.org/news/blog/upcoming-comments-from-the-icann-board-to-th e-icg-and-ccwg-accountability Upcoming Comments from the ICANN Board to the ICG and CCWG-Accountability <https://www.icann.org/news/blog/upcoming-comments-from-the-icann-board-to- the-icg-and-ccwg-accountability#> <https://www.icann.org/news/blog/upcoming-comments-from-the-icann-board-to-t he-icg-and-ccwg-accountability#> <https://www.icann.org/news/blog/upcoming-comments-from-the-icann-board-to-t he-icg-and-ccwg-accountability#> <https://www.icann.org/news/blog/upcoming-comments-from-the-icann-board-to-t he-icg-and-ccwg-accountability#> <https://www.icann.org/news/blog/upcoming-comments-from-the-icann-board-to-t he-icg-and-ccwg-accountability#> <https://www.icann.org/news/blog/upcoming-comments-from-the-icann-board-to-t he-icg-and-ccwg-accountability#> This is a very important week as we work towards the end of phase one of the IANA Stewardship Transition. With both the ICG and CCWG-Accountability public comments coming to a close, the ICANNBoard plans to submit comments into each process. Firstly, the Board will submit comments on the ICG IANA Stewardship Transition Proposal. We are very appreciative of all the hard work done by the ICG members and the three operational communities to produce the ICG proposal. The main focus of our comments will be on the implementation of the proposals by ICANN as the current IANA Functions Operator. Secondly, as discussed extensively <https://www.icann.org/news/blog/working-together-through-the-last-mile> over the past week, the ICANN Board will submit comments on the CCWG-Accountability 2nd Draft Proposal on Enhancing ICANN Accountability. These inputs will include: * Comments on the mission and core values; and * Suggested enhancements of elements of the draft report; and * A matrix of the key elements proposed by the CCWG-Accountability highlighting the elements of alignment between the Board and the CCWG-Accountability as well as the elements where the Board has suggested enhancements. We thank the community for their consideration of our comments and continued trust in the multistakeholder process that has got us this far. The continued back and forth of ideas and opinions is how we will together build the strongest proposal for the IANA Stewardship Transition, and we look forward to the next steps in the process and encourage all interested parties to submit their comments before the deadline.

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The Proposed F2F Meeting in LA
by Paul Rosenzweig Sept. 8, 2015

Sept. 8, 2015

Colleagues I want to pick up on something that Phil just mentioned (more as an aside) and make it an affirmative point of discussion within the list - whether or not we should have a F2F meeting with the Board in Los Angeles. By way of background, I think the general sense is that the dialogue with the Board was not a success (in the sense that it was a positive step toward resolution and a successful transition). While I am sure that some on this list disagree (most notably the Board members) I have a clear sense from reading the transcript, the chat log and the messages on this list (including Malcolm's excellent discussion of the issue which highlights the ambiguity in the Board's statements) that most of us see the meeting as, at best, a wash and at worst the harbinger of bad results. >From my personal vantage point, I think the reasons for that is clear - lack of preparation and definition. There was no pre-meeting exchange of written views from the Board to narrow the issues; there was no agreement on a concrete set of discussion points; and quite clearly the Board has not yet coalesced around a uniform viewpoint. On many occasions, the Board was left saying "we don't know for sure but we have many questions" and on the few points that they were firm on (e.g. the opposition to the Single Member model) the Board's reasons were not well-articulated and, to some degree, a surprise to the community. That kind of poor preparation of significant meetings is a formula for failure - and it is precisely why the dialog did not go as well as anyone would have liked. If we rush to the F2F in Los Angeles (in 2 weeks time! Or maybe 3) without better preparation, that meeting, too will be unsatisfactory. Here, in my view, is what needs to happen: 1) The Board needs to adopt a formal written response to the CCWG proposal - not a set of bullet points and not a summary of legal analysis by an outside lawyer with which it may not completely agree, but a full response with both its objections to the CCWG model; its reasons for the objections; its alternate proposal; and its justification for the same. 2) The CCWG needs to take those comments and conduct a thorough analysis of them; responding as appropriate. Again, not just a quick lawyers analysis (which was helpful but does not answer the fundamental questions) but rather a full-scale justification for accepting/rejecting/modifying the Board's views. And this response needs to take into account, as well, the responses of others in the community (all of which will not be compiled until the end of this week). 3) Only when the disagreements remaining between the Board and the CCWG are narrowed; well-defined; and clearly articulated would it be worth having a F2F meeting at which views can be expressed; compromises (perhaps) reached; and agreements to disagree finalized. That process CANNOT happen on the time line of a late September meeting with the Board. I have no doubt that such a meeting will fail for being ill-prepared if we attempt it. It is very likely that such a meeting COULD happen in Dublin in the days immediately before the ICANN meeting, but no sooner. I realize that this likely means that no final proposal will be available to the community in Dublin - but given the Board's fundamental objections that is now beyond possibility. If the Board were to recede and agree that the CCWG proposal is the fundamental core of what will go to the NTIA, then the timing can be restored - but if it insists on discussing its proposal (which, I am sorry Wolfgang, is absolutely NOT basic agreement - no matter how hard you wish it to be) in detail and attempting to modify the CCWG proposal then the timeline must shift. I am, of course, only a participant, not a member. So I have no "vote" in this matter. But it would be my firm recommendation that the Co-Chairs respectfully decline the Board's invitation to Los Angeles and schedule a meeting with the Board in due course once the Board actually has a formal position to put forward. Cheers Paul Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/> Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9>

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ICANN's Expected Standards of Behavior
by Thomas Rickert Sept. 3, 2015

Sept. 3, 2015

All, following the call with the Board yesterday, I went through the chat history and feel compelled to remind everyone of ICANN's Expected Standards of Behavior. We may disagree on substance, but please let us treat each other with respect. We have challenging times before us. Let's keep up the collaborative spirit. Best, Thomas

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Chris's summary of current thinking
by Bruce Tonkin Sept. 3, 2015

Sept. 3, 2015

Hello All, Below are some notes relating to Chris's summary that reflects a DRAFT of current thinking. We will refine these and post the final points into the public comment forum, once we get feedback during this call. Regards, Bruce Tonkin CCWG-Accountability Proposal Delivery Framework 1. Develop Fundamental Bylaws and Process for Modification a. Bylaws areas: i. ICANN's Mission and Core Values. ii. Reviews imported from the Affirmation of Commitments, including modifications with community consensus. iii. The requirements for having community input and consultation on development of ICANN Budget, Strategic Plans, Operating Plans and Standard Bylaws. This includes the IANA Functions Budget as well. iv. Commitment to fund IANA Functions housed within ICANN. v. IANA Functions Reviews called for within the CWG Report, with commitment to implement recommendations from those reviews. b. Change process - When Board proposes changes to Fundamental Bylaws (including amendments, additions or deletions): i. Incorporate into the Bylaws a requirement for community comment and input. ii. Empower the community to support such a change through a demonstration of consensus in the community. Consensus in this situation is demonstrated through meeting the specified threshold of numbers of SOs or ACs needed to support the proposed change. iii. Once there is community consensus to support the change, the change is effective upon 3/4 of the Board voting in favour of the change. 2. IRP Enhancements a. Roll back modification of standard of review that was in place before 2013. b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements. 3. Expand Reconsideration Process and Define Clear Escalation Path For Accountability a. Expand scope of reconsideration process to define as an initial step in seeking challenge against Board or staff action. Expansion could include: i. Allowance of Reconsideration Process to be used in allegations that the Board acted in violation of the Articles of Incorporation or Bylaws. ii. Increase from current process-driven bases to areas of more substantive concern, such as unfairness of a decision or inconsistency of logic. b. Following Reconsideration Process, use IRP and build escalation through accountability mechanisms, resulting in development of full appeals process. 4. Establish new Multistakeholder Enforcement Mechanism (MEM): =============================================================== a. Process for community to bring challenges against Board action that is alleged to be inconsistent with specified fundamental Bylaws. b. Binding arbitration process that is enforceable in California Courts c. ICANN funds MEM arbitrations. d. The MEM shall not be available for challenges based upon the adoption of ICANN's annual budget or annual operating plan. 5. Community Involvement in Development of Standard Bylaws Changes, Budgets, Operating Plans and Strategic Plans a. Incorporate into the Bylaws a requirement for community comment and input on each of these areas. b. Empower the community to raise timely consensus-based issues or concerns on a proposed Board action ("Community Concerns"). Consensus in this situation is demonstrated through meeting the specified threshold of numbers of SOs or ACs needed to support the raising of an issue or concern. c. ICANN commits to working with the community to resolve areas of Community Concerns, through a consultation process. d. Provide a consultation process (borrowing from the GAC/Board consultation requirement), if the Board intends to take action that is inconsistent with the Community Concerns, to work to resolve the inconsistencies where possible, or if not possible, then a 2/3 Board threshold needed for Board to act against the general Community Concerns. 6. Board Removal/Recall =========================== a. Institute pre-service letters to require the resignation of each director upon the occurrence of specific events: i. Serious violation of governance standard, including statutory causes for removal (such as fraud). ii. Refusal to abide by the processes set forth to enable new community empowerment areas. iii. Failure to abide by outcome of Multistakeholder Enforcement Mechanism (defined in #5 below). b. Process for invoking the resignation requirement. Any removal of a director is a very serious action, which must include a special community rationale and justification for removal of any individual directors and a special process for removals that would impact a significant number of voting directors. The process should allow for Board members to have an opportunity to defend against allegations that could support removal, and also include the potential for the imposition of sanctions less severe than removal. 7. Incorporate Affirmation of Commitments Reviews into Bylaws a. Consider proper edits to WHOIS review. b. Commitment to work with community on guidelines for reviews: i. Review team size and composition. ii. Budget. iii. Access to experts. iv. Access to ICANN documentation. v. Expectations on process for adoption and implementation of reviews. vi. Optimization and standardization of review team processes. 8. Implement All ICG Contingencies a. Confirm CSC is included in enhancements. b. Work with ccNSO and GNSO to confirm ability to address performance-related issues is appropriately documented. 9. Institutionalize in Bylaws the current practice of Board/GAC consultation requirement used only over consensus advice 10. Identify and commit to a process for defining continuous improvement work how the Board will consider those recommendations a. Bylaws requirement that continuous improvement ideas must be supported by a high threshold of the community and to uphold the following criteria consistent with the lines of the NTIA Criteria, which are: i. Support and enhance the multistakeholder model; ii. Maintain the security, stability, and resiliency of the Internet DNS; iii. Meet the needs and expectation of the global customers and partners of the IANA services; iv. Maintain the openness of the Internet; and v. Not result in ICANN becoming a government-led or an inter-governmental organization. b. Utilize existing mechanisms as home for some of the other identified areas of continuous improvement, including ATRT3.

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

Sept. 3, 2015

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

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Proposed WHOIS language
by Bruce Tonkin Sept. 3, 2015

Sept. 3, 2015

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

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

Sept. 3, 2015

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

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

Sept. 3, 2015

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

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

Sept. 3, 2015

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

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

Sept. 3, 2015

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

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

Sept. 3, 2015

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

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

Sept. 2, 2015

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

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

Sept. 2, 2015

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

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

Sept. 2, 2015

Dear all, Please find attached the final version of the synopsis Becky prepared. The document can also be found on your second draft proposal wiki page at https://community.icann.org/pages/viewpage.action?pageId=53783460 We will have a link to the chart added to the public comment period box - https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-20…. Thanks Best Alice From: "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, August 26, 2015 5:02 PM To: "Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>" <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>>, Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>, "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: AW: AW: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values Dear Beck, many thanks for your prompt and responsive answer. I feel many will benefit from this added explanations. Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Mittwoch, 26. August 2015 15:59 An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: AW: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values Dear Jorge, I will attempt to insert an explanatory column this morning. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Wednesday, August 26, 2015 at 1:43 AM To: Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>>, "alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>" <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>, Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: AW: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values Dear Becky, Thank you very much for this very useful comparison. I wonder whether a third column with an objective impact assessment of the changes would be available, in order to better understand what each and every change intends to achieve specifically and what impact this would have on current ICANN activities and operations. If this would to be done I would recommend that the explanation is inserted directly into the column and that we refrain from just inserting references to sections in the report as this makes the reading and understanding of the changes much more difficult. In addition to the foregoing, perhaps it would be useful to extend this comparison to any other specific Bylaw changes proposed in the Report, in order to benefit from a complete picture of what is being proposed at this level in one single document. Best regards, Jorge Cancio Von:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:-bounces@icann.org>] Im Auftrag von Burr, Becky Gesendet: Dienstag, 25. August 2015 22:31 An: Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Betreff: [CCWG-ACCT] chart comparing current Mission & Core Values with 2nd Draft Proposal Mission, Commitments & Core Values I’ve put together a chart with the requested comparison. Hope it helps. Alice, I assume someone will post as appropriate Thanks, Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: Monday, August 24, 2015 at 5:04 PM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Call with advisors Dear all, This is to inform you that as part of your outreach and public comment process, a call will be held on Monday, 31 August - 13:00-14:00 UTC to collect CCWG-Accountability Advisors' input on the Second Draft Proposal. May we also take this opportunity to remind you that your third webinar is scheduled for tomorrow – Tuesday, 25 August – 18:00-20:00 UTC – see https://www.icann.org/news/announcement-2015-08-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_ann…> for details. Webinar Q&As on your second draft proposal are compiled on a wiki page at: https://community.icann.org/pages/viewpage.action?pageId=54695403<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa…> Thank you, Kind regards Alice

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Re: [CCWG-ACCT] proposed agenda for the upcoming call
by Steve Crocker Sept. 2, 2015

Sept. 2, 2015

Thomas, Thank you. Most members of the Board were on the briefing call on Monday when you went through your slides. All board members have seen the slides and read the report and the board has met for over 7 hours in the last seven days to discuss it. We have some comments and suggestions about the proposal which will not be efficiently and effectively discussed if we go through the report section by section. ] Let me proposal an alternative agenda as follows. 1. Welcome and opening remarks 2. Board presents its comments and suggestions on the overall proposal 3. Walk through sections of the report where necessary 4. Discussion of the transitional phase 5. Outlook, next steps and closing remarks Thanks, Steve > From: Thomas Rickert <thomas(a)rickert.net> > Subject: proposed agenda for the upcoming call > Date: September 2, 2015 at 9:44:43 AM EDT > To: Steve Crocker <steve.crocker(a)icann.org>, Fadi Chehade <fadi.chehade(a)icann.org> > Cc: Accountability Cross Community <accountability-cross-community(a)icann.org> > > Dear Steve and Fadi, > in preparation of the upcoming call of the CCWG with the Board, we suggest using the following agenda. > > 1. Welcome and opening remarks > > 2. Walk through sections of the report > > During this part of the call, we would open it up for the Board to raise concerns and ask questions for the various sections of the report, as we did during the webinar. > > a) Mission / Commitments / Core Values > b) Fundamental Bylaws > c) IRP > d) RFR > e) Community Mechanism > f) Community Powers > g) Stress Tests > > We do know that some areas are more contentious than others, but by going through the items one by one, we can ensure to cover all aspects. > > We will primarily listen to the Board’s concerns and views, which we will have to discuss with the CCWG. No decisions will be taken during the call, but we would like to have a good exchange of thoughts on the Board’s view. Where possible, the Board should explain why it is concerned and what alternatives it is suggesting to test. Alternatives should reflect on how the alternative suggestion meets the requirements established by the CCWG based on NTIA requirements. > > 3. Discussion of the transitional phase > > During this part of the call, we should address how to best deal with the phase moving from the status quo until the enhanced accountability measures are in place and fully operational. > > 4. Outlook, next steps and closing remarks > > Kind regards, > Thomas > > > ___________________________________________________________ > Thomas Rickert, Attorney at Law > Director Names & Numbers > > ------------------------------------- > eco - Verband der deutschen Internetwirtschaft e.V. > > Lichtstraße 43h > 50825 Köln > > Fon: +49 (0) 221 - 70 00 48 - 0 > Fax: +49 (0) 221 - 70 00 48 - 111 > E-Mail: thomas.rickert(a)eco.de > Web: http://www.eco.de > > --------------------------------------------------- > > eco - Verband der deutschen Internetwirtschaft e.V. > Geschäftsführer: Harald A. Summa > Vorstand: Prof. Michael Rotert (Vorsitzender), Oliver Süme (stv. > Vorsitzender), Klaus Landefeld, Thomas von Bülow, Felix Höger > Vereinsregister: Amtsgericht Köln, VR 14478 > Sitz des Vereins: Köln

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Notes-Recordings-Transcript links for WP4 Meeting | 02 September
by Brenda Brewer Sept. 2, 2015

Sept. 2, 2015

Hello all, The notes, recordings and transcripts for the WP-4 meeting on 02 September will be available here: https://community.icann.org/x/LYRYAw A copy of the notes and action item may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM: Include suggestion to drop "internationally recognized" for group consideration 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. Draft is available in google for edits/comments. Comments received on mailing list: - It does not capture discussions; Feedback: - Stick to alternatives in paragraph 151. This should be addressed in WS2. - Declare intent instead of a statement. It can be addressed in WS2. We need a rationale. --> Suggestion to stick to paragraph 151 and further develop this item in WS2. - We should have a document explaining why we need that statement in the report. - The rationale is going to require fact-based analysis. - Clarify whether replacing a human rights backstop had in place or are we rebalancing ICANN. We need a detailed proposal. --> Suggestion to continue to build document and put forward proposal to implement item 2 of paragraph 151 - We can agree a simple text with rationale and provide a supporting doc that outlines the issues that would be discussed in WS2 - Suggestion to remove "internationally recognized" ACTION ITEM: Include suggestion to drop "internationally recognized" for group consideration - Which rights are fundamental and which aren't? Unclear which is why rationale is important. Definitional work is needed. - Internationally recognized --> we refer to laws that have an international status. Recommend to leave it there. - "Fundamental and human rights" raises confusion. - Human rights are related to the inherent dignity of human kind and are equal and inalienable rights of all members of the human family, forming the foundation of freedom, justice and peace in the world." - <http://www.un.org/en/documents/udhr/> http://www.un.org/en/documents/udhr/ CONCLUSION: State in our document that we will propose the CCWG embraces the second proposal in paragraph 151 of the report and draft a very concrete guideline that could serve as a framework of interpretation that we will suggest including in Bylaws with a note that this would be developed in WS2. - How would it fit in public comment period? ---> We will have larger CCWG to approve, comment or modify whatever we are proposing to larger group. - We should bring in public comment from the community into our work.

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proposed agenda for the upcoming call
by Thomas Rickert Sept. 2, 2015

Sept. 2, 2015

Dear Steve and Fadi, in preparation of the upcoming call of the CCWG with the Board, we suggest using the following agenda. 1. Welcome and opening remarks 2. Walk through sections of the report During this part of the call, we would open it up for the Board to raise concerns and ask questions for the various sections of the report, as we did during the webinar. a) Mission / Commitments / Core Values b) Fundamental Bylaws c) IRP d) RFR e) Community Mechanism f) Community Powers g) Stress Tests We do know that some areas are more contentious than others, but by going through the items one by one, we can ensure to cover all aspects. We will primarily listen to the Board’s concerns and views, which we will have to discuss with the CCWG. No decisions will be taken during the call, but we would like to have a good exchange of thoughts on the Board’s view. Where possible, the Board should explain why it is concerned and what alternatives it is suggesting to test. Alternatives should reflect on how the alternative suggestion meets the requirements established by the CCWG based on NTIA requirements. 3. Discussion of the transitional phase During this part of the call, we should address how to best deal with the phase moving from the status quo until the enhanced accountability measures are in place and fully operational. 4. Outlook, next steps and closing remarks Kind regards, Thomas ___________________________________________________________ Thomas Rickert, Attorney at Law Director Names & Numbers ------------------------------------- eco - Verband der deutschen Internetwirtschaft e.V. Lichtstraße 43h 50825 Köln Fon: +49 (0) 221 - 70 00 48 - 0 Fax: +49 (0) 221 - 70 00 48 - 111 E-Mail: thomas.rickert(a)eco.de Web: http://www.eco.de --------------------------------------------------- eco - Verband der deutschen Internetwirtschaft e.V. Geschäftsführer: Harald A. Summa Vorstand: Prof. Michael Rotert (Vorsitzender), Oliver Süme (stv. Vorsitzender), Klaus Landefeld, Thomas von Bülow, Felix Höger Vereinsregister: Amtsgericht Köln, VR 14478 Sitz des Vereins: Köln

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Re: [CCWG-ACCT] Proposed WHOIS language
by Steve DelBianco Sept. 2, 2015

Sept. 2, 2015

Thanks, Bruce. For comparison purposes, I pasted the CCWG’s proposed language below your text. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Bruce Tonkin Date: Tuesday, September 1, 2015 at 9:24 PM To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" Subject: [CCWG-ACCT] Proposed WHOIS language Below is some suggested language regarding WHOIS reviews for consideration by the CCWG when considering what to incorporate into the bylaws regarding the AoC reviews. Note the Board has no plans to cancel the current AoC - so the language in the AoC - still stands until the community and NTIA wish to change it. This language however tries to contemplate an environment where we are introducing a new gTLD Directory Service as a result of policy development within the GNSO, as well as most likely continuing to run the existing WHOIS service for some time. Regards, Bruce Tonkin ICANN commits to enforcing its policy relating to the current WHOIS and any future gTLD Directory Service, subject to applicable laws, and working with the community to explore structural changes to improve accuracy and access to gTLD registration data, as well as consider safeguards for protecting data. This Review includes a commitment that becomes part of ICANN Bylaws, regarding enforcement of the current WHOIS and any future gTLD Directory Service policy requirements. The Board shall cause a periodic Review to assess the extent to which WHOIS/Directory Services policy is effective and its implementation meets the legitimate needs of law enforcement, promotes consumer trust, and safeguards data. The Review Team shall assess the extent to which prior Review recommendations have been completed, and the extent to which implementation has had the intended effect. This periodic Review shall be convened no less frequently than every five years, measured from the date the Board took action on previous review recommendations. _______________________________________________ From CCWG 2nd draft proposal, page 81: ICANN commits to enforcing its existing policy relating to WHOIS/Directory Services, subject to applicable laws. Such existing policy requires that ICANN implement measures to maintain timely, unrestricted and public access to accurate and complete WHOIS information, including registrant, technical, billing, and administrative contact information. The Board shall cause a periodic Review to assess the extent to which WHOIS/Directory Services policy is effective and its implementation meets the legitimate needs of law enforcement and promotes consumer trust. This Review will consider the OECD guidelines regarding privacy, as defined by the OECD in 1980 and amended in 2013. The Review Team shall assess the extent to which prior Review recommendations have been implemented. This periodic Review shall be convened no less frequently than every five years, measured from the date the previous Review was convened.

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High Level Review of Jones Day Analysis from Sidley/Adler
by Alice Jansen Sept. 2, 2015

Sept. 2, 2015

Dear all, Please find attached legal counsel's high level review of the Jones Day Impact Analysis. The memo is available on the wiki at: https://community.icann.org/display/acctcrosscomm/Responses+to+CCWG-Account… For full reference, the Jones Day Impact Analysis can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00007.… Thanks Best Alice

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #51 - 1 September
by Brenda Brewer Sept. 1, 2015

Sept. 1, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT Meeting #51 on 1 September will be available here: https://community.icann.org/x/1Y9CAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM: Clarify whether article 2 section 3 is deleted or not ACTION ITEM: Bruce to ensure proposed language on AoC WHOIS review is sent to CCWG ACTION ITEM - Ensure synopsis of changes is posted ACTION ITEM: Cochairs to debrief on September meeting and discuss polling (whether dates get tracting) ACTION ITEM: Staff to get back to CCWG with a clearer deadline. 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. Review input received To date we have received 10 submissions. The comment period will close on 12 September. The CCWG has also received Jones Day's impact analysis. We have relayed it to lawyers and expect to receive initial feedback on Jones Day's document by the end of today. It is also anticipated that legal counsel will speak with JD lawyers. A briefing with the ICANN Board and a call with Advisors took place on 31 Aug. The ccNSO organized two ccTLD webinars. Outreach is extremely active. 4 Advisors offered comments on the Advisors call. Most comments were supportive of our proposal. We received valuable feedback from Nell (proposal should dive deeper into outreach) and Jan (voting methodology). On the leadership call with NTIA, NTIA reminded us of the blog post and BA intervention. Larry asked us to document its process. It was also reported that there is too little rationale: pro and cons of models need to be highlighted etc. NTIA mentioned that there might be questions on IRP. We conveyed to NTIA that our group has worked strictly on a requirements basis. Feedback: - The BC is concerned about: 1) Board is suggesting that they would give us new wording for AoC WHOIS review - we have not received that text and need it; 2) the Human Rights draft is currently limited. - Synopsis of Bylaws changes implies a deletion of article 2 section 3. Is that the case? ACTION ITEM: Clarify whether article 2 section 3 is deleted or not - How do we intend to proceed with Jones Day advice? Are we envisionning a systematic answer? It is a complex and hard-to-read document. Jones Day is still arguing that the Board must remain final arbitror, IRP should be advice and that ICANN should not be subject to coercive reviews. ---> Board is calling for us to signal any misunderstandings there may be in the memo. Our core focus will be to read the memo and provide comments. We have asked legal counsel to provide overview of relevant points and points that may be based on wrong assumptions of proposal. Jones Day's memo does not mention key legal issues, technical problems, but only focuses on pointing Board to appropriate risk level they want to take. We will discuss with Board once we have the memo at hand. ---> Legal counsel: we have focused on sole member and IRP issues. We will provide in-depth comments by Friday. We suggest our memo be sent to Board and/or posted. ACTION ITEM: Bruce to ensure proposed language on AoC WHOIS review is sent to CCWG Prepare for discussion with ICANN Board Meeting on 2 September - 22:00-01:00 UTC Briefing (31 Aug) was organized to ensure Board had a good understanding of our proposal and that spirit of proposal is appropriately conveyed. No major concerns were raised on 31 Aug. The Board is continuing analysis of report. There were no questions on mission, commitments, core values, fundamental bylaws, building blocks. There were a lot of questions on CMSM and IRP. We can anticipate comment that there are gaps in the report on voting procedures, IRP etc - we have not spelled out details. Feedback: - Is the Board aware of all changes that need to be made? ACTION ITEM - Ensure synopsis of changes is posted * . SCWG Suggest closing this issue as it is not CCWG related. This is a CWG-ICG issue. Feedback: - This conversation is based on a misreading. There is nothing for the CCWG to do other than to form a community mechanism. There is no indication that CCWG input would be be needed on SCWG. - We need to be aware of glaring hole in process. The IETF is not part of community mechanism. Separation could include one or all IANA functions. - Section on ICG is a summary of CWG report. It is not intended to replace the CWG report. The CWG has a process with a special IFR. - The community mechanism does not participate in the SCWG. - Close coordination is needed. CONCLUSION: This issue is closed. Elaborate a work plan for analysis of PC2 comments and finalization of report (September meeting suggested by ICANN Board) Staff is getting organized to populate the PC tool by Sept 15. We have limited time to deliver an analysis of comments and the final report incorporating any additional amendments as appropriate for COs to endorse in Dublin. We need to set time aside for lawyers' reviews, We were invited by ICANN Board for a face-to-face on 23-24 Sept. Should we organize intensive call periods or double amount of calls per week. Feedback: - Do we expect to refine proposal or rebuild the proposal into a third draft? - interaction with Board is useful. We have to have as much interaction with the Board as possible. - We need to take the Board's offer. ACTION ITEM: Cochairs to debrief on September meeting and discuss polling (whether dates get tracting) Political communication We received feedback from NTIA, Board, community that implies our proposal is not adequately transparent and easy-to-read. Report describes differences between first and second report. We need to have a stand-alone version of the report or similar document that explains the proposal as it is now. We have received requests to provide realistic/theoretical examples of how powers are interlinked. We need to further work on explaining our proposal and spelling out the genesis of our proposal. We should be coming up with recommendations that are suitable to meet requirements but we need to be professional about how we populate and formulate recommendations. We must ensure our high quality outcomes are understood. We have started a dialogue with Tarek Kamel. Idea is to ensure that our proposal does not lose strength because we failed to use the language of the target group. Feedback: Each recommendation has to be well explained. Bylaws amendment discussion We have to take holistic of proposal to Bylaws. Both ICANN legal and legal counsel are working on amendments. No objections to process. Benefit of experimenting is that we will learn about what is effective and what is not effective. We wrote to John Jeffrey to kick off process. Sam has indicated that we would have more clarity towards the end of the week. ACTION ITEM: Staff to get back to CCWG with a clearer deadline. Feedback: - Timeline and role unclear. - We need to be clear on what process is going to be and division of roles. How will this be conducted from a transparency point of view? Clarity needed. A.O.B

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Re: [CCWG-ACCT] Regarding possible face-to-face meeting in LA
by Burr, Becky Sept. 1, 2015

Sept. 1, 2015

I will not be able to fly before Dublin, so could not attend any meeting in LA in person J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz / www.neustar.biz On 8/26/15, 6:04 PM, "Bruce Tonkin" <Bruce.Tonkin(a)melbourneit.com.au> wrote: >Note that the Los Angeles dates are not locked in I imagine they could >be moved +/- a few days. > > > >Also the CCWG could decide to have a face-to-face meeting in LA for its >own purposes in Sept. The benefit is that meeting facilities, and staff >are available in that time frame, The CCWG could decide that there is no >need to actually have any separate session with the Board during its >face-to-face meeting, but Board members are at least likely to sit in the >room and listen to the CCWG discussions in that time frame. > > > >We are just trying to plan out some dates for phone calls and >face-to-face sessions - and the content of those calls and sessions will >evolve in the next few weeks. > > > >Regards, > >Bruce Tonkin > > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ >listinfo_accountability-2Dcross-2Dcommunity&d=AwIGaQ&c=MOptNlVtIETeDALC_lU >Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=9Ju57MS8HvqZCBVmfjPaP- >boAL4tzQKqSr301k3JNp0&s=WjErJIJAZe2tc9CLMH8x7vto47aMZKWeHj24kvATzjg&e=

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Power Failure
by Dr Eberhard W Lisse Sept. 1, 2015

Sept. 1, 2015

We had us a power failure so I don't know if an when get back into the Adobe. el -- Sent from Dr Lisse's iPhone 6

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Notes-Recordings-Transcript links for CCWG Briefing to the Board - 31 August
by Brenda Brewer Sept. 1, 2015

Sept. 1, 2015

Hello all, The notes, recordings and transcripts for the CCWG Briefing to the Board - 31 August will be available here: https://community.icann.org/x/dYVYAw A copy of the notes may be found below. Thank you. Kind regards, Brenda 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. Mission, Core Values, Commitments - We are aligned on mission, core values, commitments. Independent Review Panel Strong agreement that we want to see stronger judicial function. Details need to be ironed out. ---> The proposal does move us into a constitutional model where legislative authority of community and executive authority are balanced with an independent judiciary. The reference to business judgement rule is not directly applicable. We had good reason for departing from that standard. We are proposing a very narrow scope. Conflicting results from IRP panels do seem to be a problem. There is no proposal to change the definition. We have a draft Bylaw that was circulated. The material harm standard is a concern. IRP is meant to be binding to the extent possible by law. The IRP would be limited to say whether action or inaction was consistent with ICANN bylaws. IRP has no say on GAC advice - it only has say on ICANN action/inaction. Community Mechanism - Slide 14: a petition needs to come from one SO or one AC. Do you have to be part of membership to be an SO/AC to trigger? --> We have different thresholds - e.g. Board recall. For Board recall you need 2 SOs or ACs, including one SO. In any triggering processes, it does not matter whether participating or not - it is open to all. Voting, on the other hand, is limited to those who are participating. - Is membership model really needed for WS1? Is it a bridge between WS1 and WS2? How can the implementation be realized in concrete details? How could this work? How would a new committee be added for instance? --> For new entries: it would require a Bylaw change. SO/ACs are rooted in Bylaws. The system is flexible to allow for new entries. Impact on relative weight of voting will be reassessed at that time. WS1 is either complete or committed to. We will discuss how the various area are being dealt with and time between now and implementation and will get back to Board - What is the CCWG's assessment on whether the inclusion of a voting GAC in the Community Mechanism would be acceptable to the US Government? ---> We are aware of NTIA criteria and are trying to assess our proposal against these criteria. We are aware of discussions taking place in GAC. It is premature to give a definitive answer on this. We do not think it would be crossing a line per se if GAC opted to be part of voting mechanism but this would need to be examined as a whole. - How would checks and balances on the CMSM be implemented? ---> There are procedural checks and balances. The restricted array of powers, and the usual checks and balances in the SO/AC structure work to limit what the CMSM could do. The other legal rights of a member will be constrained through very high thresholds. - Why is single member model required to obtain those five community powers? ---> The CMSM is not needed for the community powers per se. It is needed to make the communtiy powers enforceable. Enforceability is the only reason for proposing it. Legal vehicle for enforcing powers would be to have membership model. It could be enforceable in Court of Law if needed. --- Community Powers Bud/Strat/Ops What is the time period foreseen for budget vetoes to take place and how many vetoes can that time period accommodate without paralyzing certain aspects of ICANN's operation? Let's assume for this question that using past year's budget will not suffice for some aspects of ICANN operations. --> We see it as a reserve power. The paper proposes fitting in 40 days. The intention of the possible disruption of a second veto or a year of abiding by the previous year's Budget is all part of the incentives - on the community through the Board to plan a Budget that people support. Removal of individual Directors What is the CCWG assessment/analysis on the potential impact of Board director removal process on the independence of individual directors? ---> Balance between need for Directors to feel sufficiently empowered to conduct work and accountable to the community appointing them. We have struck the following balance: 1) ensure that no removal of Board director process would not take place without discussion in the process; 2) Clarification of understanding of fiduciary duties and expectations i.e. balancing between bringing perspective from community and fiduciary duties. The notion of independence of individual directors will need to be further refined. WS2/Implementation - Do you expect details to be filled in by Dublin? --> Details will be fleshed out. We are identifying principles for WS1 first. - What will you do if some of the proposal does not have consensus or lacks the shape of community forum? --> Our understanding is that NTIA is not waiting for a fully implementable solution. Operational detail would be dealt with by CCWG or by implementation team under CCWG supervision. - What is your feedback on the Jones Day impact analysis? ---> Our external counsel is reviewing Jones Day impact analysis. We will be receiving opinion on paper. Documents Presented <https://community.icann.org/download/attachments/56132981/XPL_CCWG%20Propos… L%20%281%29.pdf?version=1&modificationDate=1441057532000&api=v2> XPL_CCWG Proposal_Visual Summary_FINAL (1).pdf

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