September 2015 - Accountability-Cross-Community

W Currie and auDA comments to CCWG
by Jordan Carter Sept. 14, 2015

Sept. 14, 2015

Hi all I thought that the comments lodged by auDA and by Willie Currie were both useful reading. auDA does provide several constructive criticisms that will certainly be useful to WP1, and no doubt more broadly. Willie provides a defence of the multistakeholder model, and of the CCWG's core proposals, and sets out in clear and direct language why the discussion with the Board last week was rather problematic for the majority of those who took part in the call. Willie, as a reminder, is one of the Expert Advisors appointed to assist the CCWG with its work. Worth reading both. auDA: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00009.… Currie: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00016.… cheers, Jordan

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Board comments now in
by Jordan Carter Sept. 14, 2015

Sept. 14, 2015

hi all You may be interested to read the comments from the ICANN board which have now been lodged: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00045.… I'd draw your attention to the cover note / summary and to the memo on the MEM. It's good to see some concrete proposals from the Board to take into account as we refine the proposal. An initial observation - there is a lot of detail that would need to be developed if the alternative proposal was to be complete enough to undergo stress testing, based on an initial scan. Happy reading! Cheers Jordan -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan(a)internetnz.net.nz Sent on the run, apologies for brevity

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Fiduciary duties and MEM / CMSM
by Jordan Carter Sept. 14, 2015

Sept. 14, 2015

Hi Bruce, Thanks to you and Chris for your replies. Just want to focus on the fiduciaries bit: On 13 September 2015 at 16:02, Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au > wrote: > > > > >> Relatedly - has the board analysed whether the model is viable > without a membership approach given the obligations directors hold > (fiduciary obligations) in a non-membership system? > > > > I don’t understand the question. From my understanding Directors of a > board have the same fiduciary obligations regardless of where it is > membership or non-membership organization. The arbitration model I think > could apply to either type of organization as well. > > > My understanding of this issue is as follows. [I too, joyously, am not a lawyer...!] The fiduciary obligations of the Board to the organisation etc have been well discussed. In particular, they create some issues in terms of ensuring that accountability mechanisms without a member leave the Board as the final decision-maker. That is why for instance ICANN has long opposed binding arbitration - having an external decision-maker who could bind the Board could be incompatible with those obligations and place the Board in an impossible position. Same with the various community powers that have been proposed - in the current situation, they could erode the ability of those obligations. In creating the Community Mechanism as Single Member, this problem was resolved. The fiduciary duties directors face in a membership-based organisation are subtly but significantly different. Because the "membership body" is one with various rights, there are no conflicts between its ability to make decisions and the Board operating with integrity in response to them. This difference is implicit in many of the Board's suggestions about how to change the community powers etc in the feedback lodged at the end of last week, and in how the MEM would operate. It is not surprising it's important, because it goes to the heart of who has final authority in the ICANN system - the Board, as it does today & would under the Board's proposed alternative, or the community organised through the CMSM, as it would under the CCWG's proposal. To me this is a core difference in approach we should tease out carefully and accurately. It is why on the call with the Board on 3 Sept, I tried to be clear that the issue goes well beyond the ability to "enforce the powers in Court". It is this shift in fiduciary responsibility that is an important difference. I hope this is clear, but recognise it is a brief effort at clarity.... cheers Jordan

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Notes-Recordings-Transcript links for WP4 Meeting | 11 September
by Brenda Brewer Sept. 14, 2015

Sept. 14, 2015

Hello all, The notes, recordings and transcripts for the WP-4 meeting on 11 September will be available here: https://community.icann.org/x/MIRYAw 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. Agenda: 1. Review Greg's document Greg's agenda: 1. Confirm tasks: (a) Briefing and Discussion Paper; (b) Proposed Bylaw language 2. Briefing and Discussion Paper to become part of next CCWG Report 3. Is there any further use for the text in the "High Level Wording"? (Should all or any part of it be brought into the Briefing and Discussion Paper Draft) 4. Confirm which Google Doc we are working in going forward 5. Outline major points for Briefing and Discussion Paper * Why is this needed now -- NTIA "backstop" / "duty bearer" role going away * What Human Rights are we referring to? -- UDHR, United Nations Guiding Principles on Business and Human Rights (Ruggie Principles), International Covenant on Civil and Political Rights, ICT Sector Guide on implementing Ruggie Principles, etc. * Fundamental Rights vs. Human RIghts * What does "respecting" Human Rights mean [assumes we adopt that language in Bylaw]? * How do Human Rights apply in the ICANN context? * How will this be implemented? * Does this create new rights/obligations within ICANN or simply confirm existing ones?

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Two questions on MEM Arbitration
by Arun Sukumar Sept. 14, 2015

Sept. 14, 2015

Hello, A couple of questions on the proposed MEM arbitration process: a. How is it different from the Independent Review Panel Mechanism? In the Board's response to the CCWG proposal, it has correctly restated the three areas that IRP will be invoked for: 1. Hear and resolve claims that ICANN through its Board of Directors or staff has acted or has failed to act in violation of its Articles of Incorporation or Bylaws (including any violation of the Bylaws resulting from action taken in response to advice/input from any Advisory Committee or Supporting Organization); 2. Reconcile conflicting decisions of process-specific “expert panels”; and 3. Hear and resolve claims involving rights of the Sole Member under the Articles or Bylaws (subject to voting thresholds). The Board suggests the MEM arbitration mechanism would be more appropriate for No. 3. Given that the MEM and IRP mechanisms are strikingly similar (this is my understanding from a cursory reading of the MEM proposal), why create this distinction? From the MEM standpoint, what is special about this arbitration method that it is competent to adjudicate rights involving the community, that the IRP cannot? b. MEM Arbitration and enforceability in California courts. My concern (again from a preliminary understanding of the MEM proposal) is that the MEM arbitration ecosystem, thanks to its enforceability in Cali courts, will create a community of legal experts and arbitrators in the US that the ICANN community will become excessively reliant on. The influential role that lawyers have played in the CCWG's working is illustrative. If the nature of the ICANN community is expected to change over the course of the next few years (in terms of diverse and international representation), wouldn't this requirement of enforceability in California courts be an artificial obstacle? What stops the MEM model from being enforced in any court of law anywhere in the world - can't this can be incorporated in ICANN's bylaws? Arun -- -

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Summary Comparison Chart of Board Comments Matrix and Notes
by Greg Shatan Sept. 14, 2015

Sept. 14, 2015

All, I've reviewed the Board's Comments Matrix and Notes in some detail. I found it somewhat difficult to extract the key disagreements with and differences from our proposal, given the length and format of the document. I've prepared a chart attempting to summarize all of the key disagreements/differences (and mentioning a few but not all of the key points of agreement as well). I've also inserted my own notes, as well. I found this very helpful and I hope you will too. If desired, I can put this up as a Google Doc if others want to refine it or comment on it collaboratively. I'll send a PDF shortly. Many of the Board's key points have been mentioned in prior discussions or documents. There is one important point that I don't recall seeing earlier. The Board essentially rejects the idea of Work Stream 2 and wants all of this work done using other ICANN community processes instead. This is explained fully in point 47, but foreshadowed in a number of places throughout the document. I hope you find this useful. L'shana Tova and Happy New Year to those observing the holiday. Regards, Greg

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ICANN Board submissions to the CCWG public comment process
by Bruce Tonkin Sept. 13, 2015

Sept. 13, 2015

Hello All, For ease of access, attached are the documents posted to the public comment forum. Regards, Bruce Tonkin

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Venue & Travel - September Face-to-Face Meeting
by Alice Jansen Sept. 12, 2015

Sept. 12, 2015

Dear all, We would like to confirm the dates and location for your September face-to-face meeting: Dates: 25-26 September 2015 (two full working days) Venue: LE MERIDIEN DELFINA SANTA MONICA 530 Pico Boulevard, Santa Monica CA 90405 United States http://www.lemeridiendelfina.com/en/lemeridien We invite you to confirm your in-person presence by sending an RSVP to acct-staff(a)icann.org<mailto:acct-staff@icann.org> by Tuesday, 15 September COB. Please note that only the 26 members, the ATRT Expert, and the ICG Liaisons are eligible for travel funding. Participants are welcome to attend the F2F meeting at their own expense. Legal counsel and Advisors will be invited to join the CCWG in Los Angeles. Members unable to attend the meeting in-person may appoint an alternate. Alternates will be eligible for travel funding if they are a current participant of the CCWG-Accountability and are approved by their SO/AC to serve as an alternate. As always, remote participation will be available for this meeting. Feel free to contact ICANN staff (acct-staff(a)icann.org<mailto:acct-staff@icann.org>) should you have any questions. Thank you Best regards, Alice

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responding to your questions from 8-Sep-2015
by Steve DelBianco Sept. 12, 2015

Sept. 12, 2015

Kavouss — during our 8-September CCWG call, you raised two questions that I promised to look into. First, you noted that our 2nd draft proposal, para 642, shows we we did 26 stress tests — the number we had in our first draft report. In our final report we will correct to reflect that we did 34 stress tests. Second, you reported that stress test 18 was not consistently described in the two places it appeared in our draft. I compared the stress test 18 table on page 85 with the table on page 103 (shown below). You are correct — there is an inconsistency. Para 833 on page 103 includes the phrase “due deference to GAC Advice” whereas that phrase does not appear in para 612 on page 85. We’ll drop that phrase in our next/final report. Regards, Steve [cid:EE1F0F05-E5E1-40C1-BC8C-33707700BD91]

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Call(s) on Thursday
by Grace Abuhamad Sept. 12, 2015

Sept. 12, 2015

Dear all, The poll is now closed. Staff will proceed to schedule two calls for Thursday 30 July: * 11:00 13:00 UTC * 17:00 19:00 UTC (this call may need to be extended depending on progress made) Please look forward to calendar notices. The Agenda will follow later today. Best, Grace From: <accountability-cross-community-bounces(a)icann.org> on behalf of Grace Abuhamad <grace.abuhamad(a)icann.org> Date: Tuesday, July 28, 2015 at 10:24 AM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] IMPORTANT: Doodle Poll for Thursday Call Dear all, On today¹s call we did not complete the review of documents, so there is a need for another CCWG-Accountability plenary call on Thursday. We need to schedule this call with 24h notice, so this gives us a very short "Doodle-window². Please complete the Doodle below by 05:00 UTC on Wednesday 29 July. Doodle link: http://doodle.com/v7pnmag2puyba8g5 Thank you, Grace

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