September 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] Your public comment re replacement of IANA provider
by Alan Greenberg Sept. 23, 2015

Sept. 23, 2015

I happen to largely agree with the Panel's findings, but this seems to be the week for my seeing humour and irony in lots of places. At 21/09/2015 10:57 PM, Aikman-Scalese, Anne wrote: >The panel also thought it inappropriate that ICANN filed arguments >resisting live testimony before the panelists. They thus issued an >interim ruling that the judges would be able to question the >witnesses and ultimately did so. So the Board was seen by the panel >as uncooperative in this respect. Article IV, Section 3.12 of the Bylaws reads: "In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only; all evidence, including witness statements, must be submitted in writing in advance." By agreeing to live testimony and questioning witnesses, ICANN would have been in violation of its Bylaws. Alan

4 3

Re: [CCWG-ACCT] Fwd: Sub-group on ICANN Accountability and Fundamental Rights
by avri doria Sept. 23, 2015

Sept. 23, 2015

Hi, Figure people are already fed up with me on this topic. I will understand, and can save all my comments for the end. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Greg Shatan <gregshatanipc(a)gmail.com> </div><div>Date:08/02/2015 3:42 PM (GMT-05:00) </div><div>To: Jorge.Cancio(a)bakom.admin.ch </div><div>Cc: accountability-cross-community(a)icann.org </div><div>Subject: Re: [CCWG-ACCT] Fwd: Sub-group on ICANN Accountability and Fundamental Rights </div><div> </div>I responded initially. Please include me as well. Thank you. I note that Avri Doria's name is not included. I have a sneaking suspicion she would wish to be included as well. Greg Shatan On Sun, Aug 2, 2015 at 3:32 PM, <Jorge.Cancio(a)bakom.admin.ch> wrote: Dear Nigel and all, please add me to the subgroup. thanks! Jorge Cancio Von meinem iPhone gesendet Am 02.08.2015 um 21:30 schrieb Nigel Roberts <nigel(a)channelisles.net<mailto:nigel@channelisles.net>>: Dear All I was wondering if somehow we might arrange a get-together of those interested in the topic, in Dublin. If you are one of the people who expressed a 'me too', you should have just received the below, from me. (If you didn't but would have expected to, please say!). N. -------- Forwarded Message -------- Subject: Sub-group on ICANN Accountability and Fundamental Rights Date: Sun, 02 Aug 2015 20:16:25 +0100 From: Nigel Roberts <nigel(a)channelisles.net><mailto:nigel@channelisles.net> To: deinhorn(a)bakerlaw.com<mailto:deinhorn@bakerlaw.com>, stephanie.perrin(a)mail.utoronto.ca<mailto:stephanie.perrin@mail.utoronto.ca>, seun.ojedeji(a)gmail.com<mailto:seun.ojedeji@gmail.com>, Dr Eberhard W Lisse <el(a)lisse.na><mailto:el@lisse.na>, jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>, malcolm(a)linx.net<mailto:malcolm@linx.net>, leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>, mshears(a)cdt.org<mailto:mshears@cdt.org>, robin(a)ipjustice.org<mailto:robin@ipjustice.org>, dmcauley(a)verisign.com<mailto:dmcauley@verisign.com>, egmorris1(a)toast.net<mailto:egmorris1@toast.net> CC: mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>, rickert(a)anwaelte.de<mailto:rickert@anwaelte.de> Dear Colleagues I have just spent the last 10 minutes or so going through the 'metoo' messages on the main list. I think I have collected here the list of all Members and Participants who have expressed an interest in either participating in the work of the proposed sub-team, or alternatively who wish to lurk and read the mail (I make no distinction at this stage between the two). The purpose of this mail is, essentially, a check call. Unless you have received this email in error (i.e. you are NOT wishing to be involved), you need not reply. I'll post something to the main listshortly . . _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

19 20

ICANN Community Forum document
by Jordan Carter Sept. 23, 2015

Sept. 23, 2015

hi all Please see attached doc for the Los Angeles meeting if we choose to use it - this notes current discussions and ideas about improving the level of detail about the ICANN Community Forum, and sets out my view of some key questions the CCWG might like to focus on if the conversation has time to deal with this. To be clear - those "key issues" are just my take and haven't been signed off by the WP. They are to help you think about some of the key issues. You may have others. Staff - please include it in the reading pack for LA. cheers Jordan -- Jordan Carter

1 0

Notes-Recordings-Transcript links for CCWG ACCT Meeting #54 - 22 September 2015
by Brenda Brewer Sept. 23, 2015

Sept. 23, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT meeting #54 - 22 September will be available here: https://community.icann.org/x/8otYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM: ASO to forward statement on confirmation of participate in model 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. CLO and Greg Shatan are not connected to the AC room. Public comment Tool 2 You are all encouraged to review the PC tool 2 in preparation for LA. A common understanding of comments received is a prerequisite for the LA meeting. It can be agreements, issues etc. Community forum discussion will also be added to Los Angeles readlng list. Memo prepared by lawyers on MEM (to be circulated) will also be material to review for LA. Note: we are expecting a communication from SSAC shortly. Comments are also in translation. Feedback: - Statement from ASO on whether plan to participate in model would be helpful. ACTION ITEM: ASO to forward statement on confirmation of participate in model Legal team will be sending us a comparison of MEM and our model. LA Face-to-Face Meeting Review of intro slides put together for the meeting. Work Stream 1 relates to accountability requirements needed for transition. Accountability enhancements the community feels need to be in place to replace backstop. We should provide recommendation that offer implementable solutions. It may be good to clarify that we need final set of Bylaws drafted with our final report. Review of slides prepared Feedback - We should not be reopening model discussion from bottom-up. We should be looking at tweaking model. We can't sacrifice designing a good governance model. We need to be primary. We should be improving what we have. --> This overview is meant to assess what needs ot be made. It is not a judgement on criteria - We need to distinguish between shape of community powers and what is best legal vehicle to implement them. - Chart should compare sole model and MEM. Stick to Paris model. - All should be encouraged to review comments on model and step back from perception that is only Board who raises concern about model - We need to be more open-minded - Concerns about simplification of our processes - real burden lies in ability to communicate model. Communication skills to explain solution and not solution itself that makes it understandable. Mixed points regarding using Ease of Explanation Tijani suggest use Simplicity and Clarity vs ease. AG - in line with Tijani - Ease of explanation should not be an overall criterai. Simplicity is a major factor. JZ - My point is simply that we need to prioritize the measures. Ease of implementation can be a criteria but it's still comes AFTER a comparison to community powers. The sequence here is important GS - Ease of operation and implementation are important. Any system that is easily operationable should be explainable. KA - SMM vs MEM - no need to take strong general positions, need to judge vs requirements - look for areas of reconciliation Izumi O - rephrase to minimum changes to meet CWG requirements to avoid unexpected consequences and for ease of operaiton. Also must be conscious of the time line - we must meet the time requirements. TR - should go offlist with this. TR - Political dimension - how would a model vs another would be received by Congress - very sensitive point given our group not tasked with meeting political requirements - should we have this as a criteria? Full disclosure - co-Chairs will be talking later this week with an ICANN political advisor regarding this.If the group feels it necessary we can pursue this more than this. HG - two staffers that have deep experience and insight on this if necessary. TR - need to understand if the CCWG needs to take the political aspect into account. PK - re political acceptabiltiy - should not be a big issue. the .COM act is not yet passed. Focus on having a plan that has strong accountability and broad support. KA - not criticize ICANN for late comments. would like a comparison table of IRP in SMM and MEM. TR - JC notes on political sensitivies beyond the US is a good point. Just looking to uderstand what is required for the US to approve the proposal. WSIS is important. Understand that some feel political aspect less important. Does the group want to be informed on this in LA? (no support for this- continue discussion on list). TR points 3 and 4 can b e discussed on the list (identify your priorities.....) TR ends this section. LS - point 4 memos from lawyers - high level memos to come today. 3 documents comparing various points. HG - it has been difficult given the Board proposal is spread over a number of documents. 2 calls have taken place with Jones Day for more information. Still a bit of a struggle. JD and ICANN legal wanted to review matrix prior to publication (agreed by co-chairs). they should reply by 5PM today. LS - thanks for the great work. Tijani - support approach but need documents before we leave to LA. Would also like TR slides. LS - ends this section. MW - AOB - we n eed to make progress. IraM and LS will be participating in person in LA meeting. KA - wish to report on ICG meeting RoloefM - request, given he cannot join, but many will participate remotely - it would therefore be very useful to have an early and fixed agenda would be appreciated. MW - we will have a best effort on this given we will need some flexibility. Interest of remote participants will be considered. Comment from HG - all lawyers should formally be itnroduced at the meeting. MW - KA update on ICG meeting. KA - ICG discussed all comments received - modified part 0 of the proposal. some points to raise to CWG - note being sent anon - CWG requirements must be met. CCWG output for Dublin is not probable - ICG waiting for results of LA meeting. MW - meeting closed

1 0

Re: [CCWG-ACCT] [ccnso-members] FW: Your public comment re replacement of IANA provider
by Nigel Roberts Sept. 22, 2015

Sept. 22, 2015

> by inexperienced ICANN staff in the first few weeks of ICANNs existence. A most charitable interpretation, I feel.

1 0

Re: [CCWG-ACCT] FW: Your public comment re replacement of IANA provider
by Seun Ojedeji Sept. 22, 2015

Sept. 22, 2015

Figured i did not write to the list. IMO it will really be good to know whether the point you made further calls for a review of the CCWG proposal or NOT; Saying the board did certain things in the past under existing constitution(bylaw) without indicating/confirming whether such act will continue to happen under the newly proposed constitution (bylaw amendments) does not seem to be helpful to this discussion. We can dwell on the past for all I care, but it has little or no effect on the present nor the future if the past is not put in perspective. Regards On Tue, Sep 22, 2015 at 8:52 AM, Seun Ojedeji <seun.ojedeji(a)gmail.com> wrote: > Hi Nigel, > > I disagree, and maybe its why i will always be of the opinion that too > much history is clouding many people's judgement/view of things. > > Regards > > On Tue, Sep 22, 2015 at 8:48 AM, Nigel Roberts <nigel(a)channelisles.net> > wrote: > >> Don't be silly. A prime example of accountability failure. >> >> >> On 22/09/15 08:30, Seun Ojedeji wrote: >> >>> On Tue, Sep 22, 2015 at 8:25 AM, Bruce Tonkin < >>> >> >> Is this part of the CCWG proposal in some way? >>>> >>>> >>> Good question. >>> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> > > > > -- > ------------------------------------------------------------------------ > > > > > > *Seun Ojedeji,Federal University Oye-Ekitiweb: > http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt > email: <http://goog_1872880453>seun.ojedeji(a)fuoye.edu.ng > <seun.ojedeji(a)fuoye.edu.ng>* > > Bringing another down does not take you up - think about your action! > > > -- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji(a)fuoye.edu.ng <seun.ojedeji(a)fuoye.edu.ng>* Bringing another down does not take you up - think about your action!

2 2

exchange between lawyers
by Thomas Rickert Sept. 22, 2015

Sept. 22, 2015

All, this is just to let you know that we expect our lawyers assessment of the Board papers shortly. The lawyers are currently running their assessment by Jones Day to ensure there are no misunderstandings of the Board's position. We will update you shortly. Kind regards, Thomas --- rickert.net

3 2

AGENDA - Call #54
by Alice Jansen Sept. 22, 2015

Sept. 22, 2015

Dear all, In anticipation of your call #54 <https://community.icann.org/pages/viewpage.action?pageId=56134642> - Tuesday, 22 September from 12:00-14:00 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. Public Comment Tool 2<http://mm.icann.org/pipermail/accountability-cross-community/2015-September…> - Clarification of expectations in anticipation of LA 3. Prepare for our LA face-to-face meeting 4. Discuss memo prepared by lawyers on MEM (tentative - if memo received) 5. AOB Thank you, Kind regards Alice

2 1

Measure of Community Consensus on the final recommendations from the CCWG
by Bruce Tonkin Sept. 22, 2015

Sept. 22, 2015

Hello Anne, >> I would have to disagree with the notion that “Community Consensus” requires consensus with the ICANN Board. It is CCWG consensus that is required. Just to clarify my understanding here of the process steps from the CCWG charter. - The CCWG produces a Draft Proposal - Each of the chartering organizations then decide whether to adopt the recommendations - the CCWG will then submit a CCWG-Accountability Board Report which will contain: - the proposal as adopted by the CCWG-Accountability - the notifications of the decisions from the chartering organizations - documentation of the process that was followed The level of "Community Consensus" on the final proposal will be judged based on whether all or most of the chartering organizations adopt the recommendations. Regards, Bruce Tonkin

4 3

narrative - a first attempt
by Thomas Rickert Sept. 21, 2015

Sept. 21, 2015

All, we have discussed that we need to work on our messaging and document more what we have done. I have tried to write up an introduction to such document, which focuses more on what we build on and keep rather than on the changes. This is meant to start our discussion on how to present our work. At the end, you will only find headings where our work results need to be explained. As you know, the content of the document will need to be rephrased depending on what our final recommendations will look like. Nonetheless, we need to start working on this now. Best, Thomas The Multi Stakeholder Model is what makes ICANN unique and successful in managing a global resource that is essential for running the Internet. Security, stability and resiliency of the Internet unique Identifiers System are the focus of ICANN’s efforts. Since ICANN’s inception, the Supporting Organizations and Advisory Committees, who form the ICANN community, have developed and matured the policy development processes that, when necessary, set the rules that balance the interests of market players, end users and policy makers. The policy development includes public comment periods to ensure all interested parties globally can be heard and that their suggestions can be incorporated. Until today, the US Government has played a key stewardship role in ICANN’s governance. Not only has it obliged ICANN of its duty to regularly review and improve its accountability and transparence, but it also had the opportunity to find another contractor for the IANA functions. While the US government never had to make use of this power, its role has been rightfully characterized as a backstop by many. The CCWG Accountability has been tasked with working on consensus recommendations to enhance ICANN’s accountability for a post-transition era and to offer accountability enhancements that efficiently safeguard ICANN against contingencies, i.e. to replace the historic relationship with the US Government. The CCWG Accountability has analyzed carefully the accountability mechanisms that already exist in ICANN. It has carefully analyzed community input as well as criteria published by NTIA for accountability enhancements and transformed those to a list of requirements for improving ICANN’s accountability. Is has then considered different models and measures to implement and operationalize these requirements, it has listened to the advice of independent experts on corporate governance and accountability as well as independent legal advisers. It has discussed the pros and cons of different models and now suggests accountability enhancements that require least change, least unintended consequences while fulfilling the accountability requirements to the best possible extent. By nature, the focus of the group’s work was on identifying the need for change or amendment. However, it is important to also highlight what the group did not change. - Policy development in ICANN as well as the adoption of policies by the ICANN Board remain unaltered. - The unique advisory role of the Governmental Advisory Committee and the interaction on such advice with the ICANN Board remains unaltered. - The structure, decision-making and way SOs and ACs operate, remains unaltered. - The balance of power of the SOs and ACs is maintained. In order to preserve ICANN’s bottom-up, community-driven multi stakeholder approach, the recommended accountability enhancements include: - specifying ICANN’s role and mission and make it more robust against change to avoid mission creep and keep ICANN focused on its current mission - perpetuating the ATRT reviews required by ICANN’s current Affirmation of Commitment with the US Government, to ensure ICANN continuously works on its improvement - enhancing the Independent Review Process as an independent judiciary assessing whether ICANN operates in compliance or in violation of its bylaws. While strengthening this process the CCWG ensured that the IRP would not be empowered to circumvent the bottom-up nature of the policy processes. The IRP powers are strictly limited to confirming or cancelling ICANN’s decisions and it has no mandate to enforce specific outcomes on these decisions. These enhancements shall provide a basement and framework of enhanced trust and clear limits of what the organization can and cannot do. They ensure that ICANN follows the multi stakeholder model and follows bottom-up consensus-driven processes. In case of issues and contingencies, the CCWG has worked on a nuanced repertoire of community powers so that the community can choose the least invasive measure in case of alleged or actual wrongdoings. While all of the community powers could ultimately be enforced in court, the group has installed safeguards to make it highly unlikely this will ever be necessary. The community powers and the escalation processes for these are very nuanced to ensure they cannot be abused by individual groups or interests. Additionally, there is only a limited number of community powers. These 5 powers are relating to the - budget, strategic and operating plan - changing standard bylaws - changing fundamental bylaws, i.e. those bylaws that shall be made more robust against change (e.g. the mission, commitments and core values) - removing individual directors and - recalling the entire board Four out of five community powers only provide the community with a right to jointly exercise a right to ask the Board to redo a board decision or to veto a decision. Under no circumstances can the Community take decisions itself, let alone overturn the bottom up policy processes. The ICANN Board already engages with the community before adopting a budget. The ICANN Board already engages with the community before it adopts changes to bylaw provisions. This approach remains the same and it will rather be strengthened as an efficient consultation decreases the need for the community to step in after a resolution has been passed. The Community would only need to step in case, for instance, the Board adopts a budget that does not sufficiently fund the operation of the IANA functions, or if a strategic plan approves new activities inconsistent with ICANN’s Mission. Before a community power can be exercised, at least one of ICANN’s existing structures (SOs or ACs) are required to petition for it. Also, different thresholds of support for the execution of the community power are required. A higher degree of community consent is required for recalling the entire board than for vetoing a strategic plan. The only community power that prevents the board from taking a decision before obtaining community approval is related to changes to fundamental bylaws. The CCWG Accountability is of the opinion that changes to ICANN’s mission, commitments and core values or changes to the independent review process, amongst others, i.e. the main pillars of ICANN’s accountability and governance, shall not be changed without very strong consensus within the Board as well as within the community. While mission creep needs to be prohibited, there might be the need for ICANN to adjust to a changing environment. However, the cornerstones of what grants security, stability and resilience of the DNS must get special protection. What is common for all community powers is that the level of support for the execution of a community power must always be close to what would be called „rough consensus“ in a consensus call. Only it is more specified by embracing this notion in a voting scheme giving all existing groups the same level of relative influence as they have today. As explained above the voting scheme proposed by the CCWG only happens in extreme cases, as a last resort check and balance, and is not empowered to replace the bottom up, consensus based processes that is at the basis of ICANN’s core processes. After community wide discussion has taken place, the voting happens within the existing, well tested SO and AC structures, thus avoiding the creation of any new body. Finally, the SO and ACs themselves will be subject to regular reviews of their accountability and transparency practices, to ensure that they remain accountable to the communities they are designed to represent. In sum, the community powers do replace the backstop the US Government has provided so far. These need to be made enforceable as a matter of last resort. In order to make them fully enforceable, a legal person is required for the community to be used as a vehicle for exercising the community powers. Again, the CCWG Accountability is building on existing structures. ICANN is incorporated as a membership organization, but currently does not have any members. Therefore, the CCWG Accountability recommends - to rely on ICANN’s existing strucure as a membership organization rather than changing it, - to only have the community as the one and only member, - to ensure no part of the community gets exceeding rights (either by the ability of pushing through their individual interests or blocking community consensus), and - to ensure the community can only jointly exercise rights, mostly based on consensus. Hence no single SO or AC can exercise community powers or other statutory rights. The community as a whole is empowered to replace the role of the US Government. The CCWG Accountability believes that this truly empowers the Multi Stakeholder Model, relying on each stakeholders within existing and tested structures, in their respective roles. Even more, the CCWG Accountability believes that this community driven model is the only eligible candidate for replacing the historical relationship with the US Government. Finally, it shall be noted that in order to ensure proper checks and balances and a division of powers amongst the legislative (community), executive (ICANN Board), constitution (bylaws) and judiciary (IRP), enhancements to the accountability of the community are also suggested so that rogue players or interests inside the community cannot jeopardize ICANN and its operations. The whole proposal, as further described has been legally assessed by two independent expert law firms and successfully stress tested against various contingencies. [here comes the part that we need to work on] In the following chapters, we present I. an overview of the proposed accountability enhancement, II. an explanation of each component recommendation for of the proposed accountability architecture III. a rationale for i. why we are suggesting the changes ii. what alternative solutions have been discussed iii. why preference was given to the proposed solution iv.. why we are suggesting the changes at this time v. how we propose to deal with the interim phase until the accountability enhancements are fully implemented. IV. Omnibus volume of appendices and supporting documentation In the appendices, you find previous reports, legal assessments, the analysis of public comments received and information on the genesis of the proposed accountability enhancements.

9 9