September 2015 - Accountability-Cross-Community

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

4 3

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.

1 0

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

3 2

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.

7 8

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

2 1

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

1 0

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=

1 0

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

2 1

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

Aug. 31, 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

1 0