January 2016 - Accountability-Cross-Community

AGENDA - Call #79
by Alice Jansen Jan. 20, 2016

Jan. 20, 2016

Dear all, In anticipation of your call #79<https://community.icann.org/pages/viewpage.action?pageId=56990860> – Thursday, 21 January 2016 - 12:00-15:00 UTC - (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>), please find below a proposed agenda. Note: item # 13 is TBD. Timing for agenda items will be communicated as soon as possible. 1. Welcome, Roll Call & SOI (2 min) 2 Update from Chartering Organizations 3 Timeline and next steps 4 Rec 2 - Escalation timeframes (third reading) - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 5 Rec 3 - Fundamental Bylaws (second reading) - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 6 Rec 4 – Scope of community IRP and separation power (second reading) - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… & http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 7 Rec 11 – GAC advice (continued) http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 8 Rec 1 – GAC as decisional participant - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 9 Rec 10 – SO/AC accountability (first reading) - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 10 Rec 8 – Reconsideration - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 11 Mission (TBD) 12 Update on Board removal liability mitigation - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 13 A.O.B (3 min) Link to Adobe Connect: https://icann.adobeconnect.com/accountability/ Thanks Best regards Alice

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Board remarks on Human Rights, IRP and Community IRP
by Theresa Swinehart Jan. 20, 2016

Jan. 20, 2016

Dear CCWG, Please find below the Board's remarks for the discussions on the next CCWG call, which I'm sending on behalf of Bruce and Markus. Kind regards, Theresa ____ The Board appreciates the work by the community on the first readings of reactions to the public comment on the Third Draft Proposal from the CCWG-Accountability. In preparation for the second reading, the Board provides these inputs to the CCWG-Accountability on inclusion of Human Rights in the Bylaws, Scope of IRP and Scope of Community IRP On Inclusion of Human Rights in the Bylaws, the Board has the following reactions to the points identified in the redline distributed after the first reading before the CCWG. The Board notes the continued discussion of this issue on the CCWG-Accountability list, and that there continues to be some divergence among the CCWG-Accountability on how to proceed among the options presented. As noted in its comments to the Third Draft Report, the Board remains committed to developing a Human Rights Statement for ICANN, and will report to the community at ICANN 55 Marrakech on progress on this work. The Board appreciates the import of this issue to the ICANN community, and remains committed to working alongside the community towards a meaningful framework to guide human rights considerations within ICANN¹s mission. Regarding inclusion in the ICANN Bylaws, the Board supports Option B, or allowing the WS2 effort on defining a framework to proceed prior to considering whether to include a human rights obligation in the Bylaws. The Board appreciates the consideration the CCWG-Accountability has given to the timing concerns raised by the Board in its comments. Of note, the Board¹s concerns in introducing a human rights consideration in its Bylaws today prior to the completion of a framework was not the only concern raised. The language presented by the CCWG-Accountability for the Bylaws also raised concerns. As stated in the Board¹s comments: While the Board appreciates that the proposed interim Bylaw text is intended to not place any additional obligations on ICANN, the language could actually be used to greatly expand ICANN¹s human rights obligations. Some specific examples of concern include: * Inclusion of a human rights commitment in the Bylaws would immediately allow for IRPs to be brought on human rights grounds. Similarly, there could be lawsuits relying on the Bylaws language filed against ICANN. When the Bylaws commitment is vaguely stated, any interpretation of the Bylaws language will be against ICANN, and have binding impact on the community¹s ability to define a framework. Neither the IRP or the Courts will have any legal reason to wait for the community to complete the next step, and could make their own interpretations of the language. * The proposed Bylaws text, with reference to ³applicable law² to judge the acts of ICANN and those with relationships with ICANN, leaves open the question of which law should be applicable. This language expands, as opposed to limits, the potential scope of human rights challenges. * The language about ³any entity having a relationship with ICANN ³ raises the suggestion that the ICANN Bylaws have the power to bind those with relationships with ICANN in how those entities respect, consider or enforce human rights. ICANN does not have this power. For example, registries and registrars contracted with ICANN do not take on any human rights obligations because they contract with ICANN. This language suggests that because they have a relationship with ICANN, there are human rights concerns that they could be obligated to address. * The language suggests that there is already a framework within which ICANN processes complaints, requests or demands for ICANN to enforce human rights issues, which there is not. Indeed, there still appears to be divergence within the community about what should be considered as human rights considerations within ICANN¹s Mission. Without a framework, challenges could be raised around issues that are not agreed to be within ICANN¹s Mission, such as access, content or education. Leaving these types of issues open puts the community, ICANN stakeholders such as contracted parties, and ICANN itself at risk. Courts or binding IRP panels could be used to create precedent defining what human rights are within ICANN¹s Mission. These determinations are better left for the ICANN community to sort out, instead of being imposed. Leaving these questions open for others outside of the ICANN community to define is not consistent with enhancing ICANN¹s accountability. The Board urges that the full scope of defined work on human rights should include consideration of impacts across all of ICANN¹s activities. As noted by ICANN¹s legal counsel, the concern raised by the Board is not primarily about an increase in the potential litigation across ICANN, but rather about the impact of that litigation on the ICANN community, in the potential to define ICANN¹s human rights obligations before the community has the opportunity to complete that work. The proposed limitation of applicable laws does not provide much comfort, as there are no limitations of which laws will be suggested to be applicable to which parties. This is not a trivial concern. Which court and which law will be relied upon to decide if human rights includes a requirement to make all registrant data public in an attempt to protect against abusive content on websites? Or which court and which law will be relied upon to require all registrant data to be made private to recognize privacy interests or the potential impact to third parties with which ICANN does business? It is examples such as these that demonstrate why the ICANN community needs to weigh in on where ICANN¹s human rights obligations start and stop, before a court is invited to make those determinations. Recommendation 7, Scope of IRP: The Board previously expressed concerns about the IRP being used for substantive appeals from process-specific expert panels, and notes the apparent agreement on the CCWG-Accountability to remove the expert appeals language from the scope of the IRP. Even with this removal, the Board notes that any violation of the ICANN Articles of Incorporation or Bylaws that occurs in conjunction with the consideration of an expert panel can appropriately be the basis of an IRP. The Board has the following additional comments: 1. The IRP should not be used to determine what documents are to be released as part of ICANN¹s Documentary Information Disclosure Policy (DIDP). If a DIDP response is in violation of ICANN¹s Bylaws/AoI, then an IRP can lie on the grounds of a Bylaws/AoI violation. The Board notes that a more substantive appeal process for the DIDP could be developed as part of the DIDP review in WS2. The development of a substantive DIDP appeal process was not previously identified as a WS1 effort. 1. The Board supports the CWG-Stewardship contingency that the IRP is made available as part of the accountability for the performance of the naming function work by PTI. The implementation of this must be done carefully so as to not confuse ICANN¹s obligations with PTI¹s obligations. 1. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP. 1. The Board notes that there should be a broad range of participants for the work of the IRP implementation team (including jurists and those versed in international arbitration). 1. The Board discourages the use of exemptions to the already limited world of ³loser pays² outcomes of IRPs, such as a proposed exemption for non-profit entities, as there should not be incentive for a certain group of complainants to more easily bring IRPs if they are not faced with the potential recourse for bringing IRPs on suspect grounds. Recommendation 4, Scope of Community IRP: The Board reiterates its concerns regarding the inclusion of expert panel appeals and substantive DIDP appeals, as stated in regards to Recommendation 7. The Board appreciates the community discussion regarding a carve-out of the Community IRP as it relates to PDP outcomes. The Board notes that, particularly with a threshold of 3 SOs or ACs, there other potential for the filing of a Community IRP to pit parts of the community against other parts of the community, such as countering the Board¹s acceptance of advice from Advisory Committees. The Board encourages the CCWG-Accountability to see if there are additional protections that can be introduced so that community resources are not used to challenge properly taken actions from another part of the community.

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Fwd: Board remarks on Human Rights, IRP and Community IRP
by Mathieu Weill Jan. 20, 2016

Jan. 20, 2016

Dear colleagues, Our lawyers have suggested to engage with jones Day regarding some potential misunderstanding of their advice. The co chairs have agreed on the pragmatic approach and certified the request. Best, Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Début du message transféré : > Expéditeur: "Gregory, Holly" <holly.gregory(a)sidley.com> > Date: 20 janvier 2016 08:44:21 UTC+1 > Destinataire: "mathieu.weill(a)afnic.fr" <mathieu.weill(a)afnic.fr>, "thomas(a)rickert.net" <thomas(a)rickert.net>, 'León Felipe Sánchez Ambía' <leonfelipe(a)sanchez.mx> > Cc: "Rosemary E. Fei (rfei(a)adlercolvin.com)" <rfei(a)adlercolvin.com> > Objet: FW: Board remarks on Human Rights, IRP and Community IRP > > Dear Co-Chairs, The board position regarding the proposed human rights language stated below appears to rest on a fundamental misunderstanding of the “applicable law” point. Let us know if you would like us to explain. Perhaps you could suggest that we talk to Jones Day and the ICANN lawyers about our meaning in adding that language. Holly > > 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 > > From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Theresa Swinehart > Sent: Monday, January 18, 2016 9:15 PM > To: accountability-cross-community(a)icann.org > Subject: [CCWG-ACCT] Board remarks on Human Rights, IRP and Community IRP > > Dear CCWG, > > Please find below the Board's remarks for the discussions on the next CCWG call, which I'm sending on behalf of Bruce and Markus. > > Kind regards, > > Theresa > > ____ > > The Board appreciates the work by the community on the first readings of reactions to the public comment on the Third Draft Proposal from the CCWG-Accountability. In preparation for the second reading, the Board provides these inputs to the CCWG-Accountability on inclusion of Human Rights in the Bylaws, Scope of IRP and Scope of Community IRP > > On Inclusion of Human Rights in the Bylaws, the Board has the following reactions to the points identified in the redline distributed after the first reading before the CCWG. > > The Board notes the continued discussion of this issue on the CCWG-Accountability list, and that there continues to be some divergence among the CCWG-Accountability on how to proceed among the options presented. As noted in its comments to the Third Draft Report, the Board remains committed to developing a Human Rights Statement for ICANN, and will report to the community at ICANN 55 Marrakech on progress on this work. The Board appreciates the import of this issue to the ICANN community, and remains committed to working alongside the community towards a meaningful framework to guide human rights considerations within ICANN’s mission. > > Regarding inclusion in the ICANN Bylaws, the Board supports Option B, or allowing the WS2 effort on defining a framework to proceed prior to considering whether to include a human rights obligation in the Bylaws. > > The Board appreciates the consideration the CCWG-Accountability has given to the timing concerns raised by the Board in its comments. Of note, the Board’s concerns in introducing a human rights consideration in its Bylaws today prior to the completion of a framework was not the only concern raised. The language presented by the CCWG-Accountability for the Bylaws also raised concerns. As stated in the Board’s comments: > > While the Board appreciates that the proposed interim Bylaw text is intended to not place any additional obligations on ICANN, the language could actually be used to greatly expand ICANN’s human rights obligations. Some specific examples of concern include: > Inclusion of a human rights commitment in the Bylaws would immediately allow for IRPs to be brought on human rights grounds. Similarly, there could be lawsuits relying on the Bylaws language filed against ICANN. When the Bylaws commitment is vaguely stated, any interpretation of the Bylaws language will be against ICANN, and have binding impact on the community’s ability to define a framework. Neither the IRP or the Courts will have any legal reason to wait for the community to complete the next step, and could make their own interpretations of the language. > The proposed Bylaws text, with reference to “applicable law” to judge the acts of ICANN and those with relationships with ICANN, leaves open the question of which law should be applicable. This language expands, as opposed to limits, the potential scope of human rights challenges. > The language about “any entity having a relationship with ICANN “ raises the suggestion that the ICANN Bylaws have the power to bind those with relationships with ICANN in how those entities respect, consider or enforce human rights. ICANN does not have this power. For example, registries and registrars contracted with ICANN do not take on any human rights obligations because they contract with ICANN. This language suggests that because they have a relationship with ICANN, there are human rights concerns that they could be obligated to address. > The language suggests that there is already a framework within which ICANN processes complaints, requests or demands for ICANN to enforce human rights issues, which there is not. Indeed, there still appears to be divergence within the community about what should be considered as human rights considerations within ICANN’s Mission. Without a framework, challenges could be raised around issues that are not agreed to be within ICANN’s Mission, such as access, content or education. > > Leaving these types of issues open puts the community, ICANN stakeholders such as contracted parties, and ICANN itself at risk. Courts or binding IRP panels could be used to create precedent defining what human rights are within ICANN’s Mission. These determinations are better left for the ICANN community to sort out, instead of being imposed. Leaving these questions open for others outside of the ICANN community to define is not consistent with enhancing ICANN’s accountability. The Board urges that the full scope of defined work on human rights should include consideration of impacts across all of ICANN’s activities. > > As noted by ICANN’s legal counsel, the concern raised by the Board is not primarily about an increase in the potential litigation across ICANN, but rather about the impact of that litigation on the ICANN community, in the potential to define ICANN’s human rights obligations before the community has the opportunity to complete that work. The proposed limitation of applicable laws does not provide much comfort, as there are no limitations of which laws will be suggested to be applicable to which parties. This is not a trivial concern. Which court and which law will be relied upon to decide if human rights includes a requirement to make all registrant data public in an attempt to protect against abusive content on websites? Or which court and which law will be relied upon to require all registrant data to be made private to recognize privacy interests or the potential impact to third parties with which ICANN does business? It is examples such as these that demonstrate why the ICANN community needs to weigh in on where ICANN’s human rights obligations start and stop, before a court is invited to make those determinations. > > Recommendation 7, Scope of IRP: > > The Board previously expressed concerns about the IRP being used for substantive appeals from process-specific expert panels, and notes the apparent agreement on the CCWG-Accountability to remove the expert appeals language from the scope of the IRP. Even with this removal, the Board notes that any violation of the ICANN Articles of Incorporation or Bylaws that occurs in conjunction with the consideration of an expert panel can appropriately be the basis of an IRP. The Board has the following additional comments: > > The IRP should not be used to determine what documents are to be released as part of ICANN’s Documentary Information Disclosure Policy (DIDP). If a DIDP response is in violation of ICANN’s Bylaws/AoI, then an IRP can lie on the grounds of a Bylaws/AoI violation. The Board notes that a more substantive appeal process for the DIDP could be developed as part of the DIDP review in WS2. The development of a substantive DIDP appeal process was not previously identified as a WS1 effort. > > The Board supports the CWG-Stewardship contingency that the IRP is made available as part of the accountability for the performance of the naming function work by PTI. The implementation of this must be done carefully so as to not confuse ICANN’s obligations with PTI’s obligations. > > The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP. > > The Board notes that there should be a broad range of participants for the work of the IRP implementation team (including jurists and those versed in international arbitration). > > The Board discourages the use of exemptions to the already limited world of “loser pays” outcomes of IRPs, such as a proposed exemption for non-profit entities, as there should not be incentive for a certain group of complainants to more easily bring IRPs if they are not faced with the potential recourse for bringing IRPs on suspect grounds. > > Recommendation 4, Scope of Community IRP: > > The Board reiterates its concerns regarding the inclusion of expert panel appeals and substantive DIDP appeals, as stated in regards to Recommendation 7. > > The Board appreciates the community discussion regarding a carve-out of the Community IRP as it relates to PDP outcomes. The Board notes that, particularly with a threshold of 3 SOs or ACs, there other potential for the filing of a Community IRP to pit parts of the community against other parts of the community, such as countering the Board’s acceptance of advice from Advisory Committees. The Board encourages the CCWG-Accountability to see if there are additional protections that can be introduced so that community resources are not used to challenge properly taken actions from another part of the community. > > > **************************************************************************************************** > 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. > > **************************************************************************************************** > > <smime.p7s> > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #78 - 19 January
by Brenda Brewer Jan. 19, 2016

Jan. 19, 2016

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #78 - 19 January will be available here: https://community.icann.org/x/ipxlAw A copy of the action items and notes may be found below. Thank you. Kind regards, Brenda Action Items * ACTION ITEM - Sebastien to signal whether objection sustained in 48 h. * CONCLUSION/ACTION ITEM: Becky to continue work on this scope and to clarify limits on applicability of IRP. This item will be considered closed unless we get objection from Sebastien within 48 hours that gets traction. * ACTION ITEM: Language to be circulated in second reading conclusions document. * CONCLUSION/ACTION ITEM: Use proposal language, add clarification that Bylaw will remain dormant until FOI is still developed. Circulate proposed language and ask for lawyers to confirm language. * ACTION ITEM: Add discussion point on market mechanism 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. Jeff Neuman, Greg Shatan on the phone. Scope of IRP Overview of conclusions. In addition - we have carve-out language for IRP challenges to a PDP: Notwithstanding the foregoing and notwithstanding any required threshold for launching a community IRP, no community IRP that challenges the result(s) of a supporting organization's policy development process (PDP) may be launched without the support of the supporting organization that developed such PDP or, in the case of joint PDPs, without the support of the supporting organizations that developed such PDP. Feedback: - Does this imply IRP can be used to challenge an action of SO/AC rather than ICANN the corporation? Clarify what limits are in terms of SO/AC activities. --> Clarification will be added. - Will this clause apply to challenging GAC, ALAC recommendations? --> This would be after the fact decision. It does not impact ability of Board to respond. - It will jeopardize the multistakeholder system. Can we re-discuss? --> Multistakeholder input is part of the process. ACTION ITEM - Sebastien to signal whether objection sustained in 48 h. - Carve-out ensures that the multistakeholder approach is functioning. We should anticipate that each PDP that is adopted is verified by the multistakeholder community. This carve-out should ensure it does not contravene wish of PDP. It preserves the approach more than anything else. - Drafting note: The term PDP is not used for the ASO in the Bylaws, so the full expression should be used in any Bylaws. - Without agreement we could not challenge PDP - that is all we are saying. - Against proposed drafting note. - We should not use abbreviation PDP because it is not used in ASO environment. --> We will avoid acronyms. - What is status of DIDP: are we going to handle it separately or will it be WS2? ---> We need escalation process first. - Would DIDP be available to individual or SO/ACs? ---> DIDP is available right now. Violation of Bylaws would be appealable to IRP. - Where will we give consideration to public comments? ---> We have tried to identify in discussion points all the comments with specific attention to COs, Board, constituencies, stakeholder groups. E.g. question of PTI was a CWG-Stewardship comment. It is intent to capture all comments. Anyone is welcome to challenge these key discussion items - if there is a concern, raise it on the call. e.g. Mike Charter raised an omission on list. A summary of comments per recommendation can be found at: <https://www.icann.org/en/system/files/files/summary-comments-draft-ccwg-acc… an16-en.xlsx> https://www.icann.org/en/system/files/files/summary-comments-draft-ccwg-acc… n16-en.xlsx CONCLUSION/ACTION ITEM: Becky to continue work on this scope and to clarify limits on applicability of IRP. This item will be considered closed unless we get objection from Sebastien within 48 hours that gets traction. --- Human Rights Review of current options. Feedback: - Option 2 C is not C reconsidered. It is the dormant Bylaw language that it should not be operational before FoI. --> 2 C is proposal by lawyers. - Why do we need a dormant Bylaw? Mention commitment in WS 1 but have all details in WS2. --> In WP4 commitment to include a transitional Bylaw that would allow commitment for Bylaw to remain dormant and for FoI to be developed. - Object to 3 c: there is significant confusion. Organization must abide by Bylaws. It has to be stated that it is not effective (i.e. Bylaw) otherwise it is effective (subject to IRP). Is it intended that Bylaw is not enforced as opposed to enforceable until FoI is put in place? A is significant departure from 3rd draft. C is closer to what was suggested. A does not take into account transitional Bylaw. Intent is to not have effective until FOI put in place. A deletes the transitional Bylaw and make Human Rights Bylaw immediately effective and binding in terms of action/inaction. That is different from proposal. C leaves the Bylaw effective and binds ICANN in actions/inactions - it is internally contradictory. Alternatives need to be well stated so we understand effect. - Options are not ready-to-go language. These are concepts. Option 3A is not big departure from draft. A is what we had in third draft - B Board/comments suggestions - C is dormant concept. - 3A is language as proposed in report. No big risks with IRP. 3B was discarded by lawyers (see 2A) - Board needs to give more argumentation to consider that further. - Go for something general and safe. - In PC period, strong record of support for that recommendation. Human Rights is an important signal. - Any implementation needs to come after FOI. Alternate A - there is belief it will be immediately effective. It deletes effect of transitional Bylaw. Will ICANN be immediately bound by IRP? Problems understanding between 3A and 3C. ---> Way forward could be to keep language we have in report and specify that implementation of human rights bylaw would be subject to framework of interpretation and that bylaw would remain dormant until then. This would be in line with what was discussed in WP4 and address Board concern. We have not received GAC feedback on this yet. Let's keep this in mind as we wait for GAC input. - Have Bylaw not operational until FOI is adopted. Option of dormant Bylaw is going to address comments, including Board. - We need text to solidify understanding. C cannot be viewed as an option. Board input: Deferring to WS 2 would be cleanest option. The Board is committed to having a commitment to Human rights. We should not have language in Bylaw before framework is developped. We need to see language before considering in detail. --> ACTION ITEM: Language to be circulated in second reading conclusions document. Feedback: - We should all converge towards a single point of agreement. - Do not wait from external input but translate opinions of this group into language. CONCLUSION/ACTION ITEM: Use proposal language, add clarification that Bylaw will remain dormant until FOI is still developed. Circulate proposed language and ask for lawyers to confirm language. Board removal liability mitigation We have concluded discussion with request for our legal counsel to work with Jones Day on finding language. AOC Reviews Overview of discussion items. On 1 & 2 Feedback: / Conclusion: We will move forward with these. On 3 - Any objection to including mid-term review of IRP? This discussion would be deal with IRP IOT Feedback: / Conclusion: No objection On 4 - increase presence of GNSO in gTLD reviews (consumer trust, WHOIS) - Changing numbers might lead to change of number of seats on Review Teams. Does it serve the purpose to augment seats? Feedback: - ALAC will be vocal if this changes. Political pressure is high. ALAC has diversity as well and we will have no choice but to ensure regions are presented as well. - Size needs to be manageable and balance unchanged. Conclusion: No change to proposal. On 5 & 6 Feedback: - Member as different connotation as sole member. We should not reopen issue. It should remain standard bylaw. Conclusion: Our report will stay as it is. On 7 Conclusion: Support for inclusion of recommendation. On the understanding that specific recommendations in Annex 9 would be respected, such that this text addresses only implementation detail Mission Statement Suggesting to break discussion in subparts. We would like to take stock on some of these items and highlight challenges moving forward. Root server language is pending. We have received comment from lawyers on numbers language. In addition, we have text from Izumi. We are wordsmithing - no disagreement on substance. Consumer trust: we have received clarification from Fiona Alexander. Feedback: - Reference to MoU is inappropriate. It may change overtime. - ALAC recommendation on whether market mechanism should remain in Bylaws ACTION ITEM: Add discussion point on market mechanism - Commitments are necessary for expansion of new gTLD. CONCLUSION: We are keeping our Third Draft Proposal language. We are not discarding Consumer Trust per se - although it is not a Core Value, it is part of AoC reviews. ALAC had comment on preservation and enhancement of DNS which was not properly transposed from NTIA requirements. There are two large discussions: - Whether there should be any limitations on scope of ICANN's agreement with contracted parties - to what extent can ICANN enforce commitments. There is a degree of diversion on list. There are fundamental freedom of contract provisions and questions about security and stability of agreement, the extent to which they can rely upon. This debate is still polarized. - Grandfathering - specific request for provisions including PICs - can be renewed without being subject to questions. This is complicated by many operators proposing individual PICs. It involves freedom of contract as well. Expand the conversation to include people who are not participating. Feedback: - ICANN is enforcing terms under which it agreed to a delegation. We have to be able to permit enforcement. - We should accept advice from lawyer but Board will decide what is right. - It raises question of to what extent are applications part of agreement? Conclusion: We will have call to identify where agree on on the list in next few days to we may move to constructive phase to close on this discussion. We will reconvene on this discussion with language based on fruitful mailing-list discussions. GAC Advice Overview of key discussions. In addition we could add: - notion of rationale - add clarification that all ACs, not just GAC. On two suggestions: Feedback: - Agree with these two suggestions - OK with notion of rationale but is there a process if others think it is not a rationale? - Board should decide whether they have received a rationale - We are not singling out GAC. - At discretion of Board to identify whether rationale is sufficient Conclusion: These two suggestions will be taken onboard for second reading. Suggestion to clarify that we cannot restrict AC on advice they offer but that it is clear that ICANN may not take action if inconsistent with its Bylaws. Proposed text: While the GAC is not restricted as to the advice it can offer to ICANN, it is clear that ICANN may not take action that is inconsistent with its Bylaws. The empowered community will have standing to bring an IRP to challenge any board action or inaction that is inconsistent with its bylaws, even if the board acted on GAC advice. Feedback: - Uncontroversial. It should be consistent with Bylaws. - Important to clarify how community IRP. IRP is to bring a finding. Series of consequences flow. Conclusion: We are moving forward with this for second reading. Suggestion to add language: This recommendation is intended to limit the conditions under which the ICANN board must enter a try to find a mutually acceptable solution. This recommendation does not create any new obligations for ICANN board to consider and/or vote on GAC advice, relative to the bylaws in effect prior to the IANA transition. This recommendation does not create any new assumption that ICANN is bound to implement any advice that is not rejected by the board, relative to the bylaws in effect prior to the IANA transition. Feedback: - What are lawyers expected to do? --> Does the clarification help for clarity in drafting? - Support this addition. It is in line with IPC comments. There is no new obligation in way Board deals with GAC advice other than 2/3 majority. Conclusion: We will provide GAC and GNSO time to react on this but this discussion was useful to clarify. AOB We will discuss timeline on Thursday.

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Draft text for first reading of Rec #11 (Stress Test 18)
by Steve DelBianco Jan. 19, 2016

Jan. 19, 2016

Greg — here is what I proposed on first reading for Rec 11 (Stress Test 18) on today’s call. 1. To address concerns that AC advice should require accompanying rationale. Add this to supplemental draft, Rec 11 and Annex 11: Insert a requirement in ICANN Bylaws Article XI, Section 1 (regarding all Advisory Committees), such that Formal advice of Advisory Committees must be accompanied by rationale for such advice. 2. To address IPC concern that Rec 11 might have the unintended consequences of: “requiring a mandatory vote and creating the impression that any GAC advice that is not rejected by the Board is binding on ICANN.” Add this to supplemental draft, Rec 11 and Annex 11: This recommendation is intended to limit the conditions under which the ICANN board must enter a try to find a mutually acceptable solution. This recommendation does not create any new obligations for ICANN board to consider and/or vote on GAC advice, relative to the bylaws in effect prior to the IANA transition. This recommendation does not create any new assumption that ICANN is bound to implement any advice that is not rejected by the board, relative to the bylaws in effect prior to the IANA transition. 3. To address registry concern about consistent with ICANN bylaws. Add this to supplemental draft, Rec 11 and Annex 11: While the GAC is not restricted as to the advice it can offer to ICANN, it is clear that ICANN may not take action that is inconsistent with its Bylaws. The empowered community will have standing to bring an IRP to challenge whether a board action or inaction that is inconsistent with its bylaws, even if the board acted on GAC advice. Also, when we display Rec 11 in Adobe and in our supplemental draft, we should always highlight the new text being proposed: ICANN Bylaws Article XI, Section 2:j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of 2/3of the Board, and the Governmental Advisory Committee and the ICANN Board will then try,in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

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DOCUMENT - Recommendation 7 - Scope of IRP (conclusions of 1st reading)
by Brenda Brewer Jan. 19, 2016

Jan. 19, 2016

Sent on behalf of CCWG-ACCT Co-Chairs Recommendation 7 – Scope of IRP (conclusions of 1st reading) discussed on call #79 - Thursday, 21 January 2016 (12:00 – 15:00 UTC) - please find attached the material to review. The second reading document will soon follow. Please use this email thread to circulate any comments you may have. Thank you Mathieu, Thomas, León

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Re: [CCWG-ACCT] DOCUMENT - Rec 11 - GAC Advice (first reading)
by Steve DelBianco Jan. 19, 2016

Jan. 19, 2016

Mathieu — Regarding formal advice from any Advisory Committee (AC), many commenters reiterated that a rationale should be a requirement for advice to be considered by the board. (BC, NPOC, Google, USCIB, RySG, Valideus, the US Chamber, RrSG, NCUC, I2C, Intel, IPC) It’s not enough to require that each AC "will make every effort”. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Monday, January 18, 2016 at 3:10 AM To: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>, Mike Chartier <mike.s.chartier(a)intel.com<mailto:mike.s.chartier@intel.com>> Cc: "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: Re: [CCWG-ACCT] DOCUMENT - Rec 11 - GAC Advice (first reading) Mike, Good catch indeed. Precisely the point of our first reading exercise. So we will add this to recommendation 11 agenda item tomorrow. I will note that the current annex includes a related recommendation : · Insert a mention for all ACs: “The AC will make every effort to ensure that the advice provided is clear and supported by a rationale.” Best, Mathieu De : accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] De la part de Greg Shatan Envoyé : lundi 18 janvier 2016 05:30 À : Chartier, Mike S Cc : accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Objet : Re: [CCWG-ACCT] DOCUMENT - Rec 11 - GAC Advice (first reading) Mike, Good point and good catch. This should not have been overlooked. Greg On Sun, Jan 17, 2016 at 9:52 PM, Chartier, Mike S <mike.s.chartier(a)intel.com<mailto:mike.s.chartier@intel.com>> wrote: I think this is another illustration of how we need to be careful in documenting the process for handling comments (other than the Boards). For Recommendation 11 several commenters offered the proposal to add a requirement for GAC advice to be accompanied by a rationale. Given the general acceptance of proposals for rationales in other areas, I would have thought it would have at least been given a note in the prep document. Look forward to discussing on Tues. From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Alice Jansen Sent: Friday, January 15, 2016 12:01 PM To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] DOCUMENT - Rec 11 - GAC Advice (first reading) Sent on behalf of CCWG-ACCT Co-Chairs In preparation for your Recommendation 11 – GAC Advice (first reading) discussion scheduled for your call #78 - Tuesday, 19 January 2016 (12:00 – 15:00 UTC) - please find attached the material to review. Please use this email thread to circulate any comments you may have in advance of the call. Thank you Mathieu, Thomas, León _______________________________________________ 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

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DOCUMENT - Rec 11 - GAC Advice (first reading)
by Alice Jansen Jan. 19, 2016

Jan. 19, 2016

Sent on behalf of CCWG-ACCT Co-Chairs In preparation for your Recommendation 11 – GAC Advice (first reading) discussion scheduled for your call #78 - Tuesday, 19 January 2016 (12:00 – 15:00 UTC) - please find attached the material to review. Please use this email thread to circulate any comments you may have in advance of the call. Thank you Mathieu, Thomas, León

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Analysis & Trends - Third Public Comment Period
by Alice Jansen Jan. 19, 2016

Jan. 19, 2016

Dear all, For your information - analysis and trends slides of your Third Public Comment period (see attached) can be found on your wiki page: https://community.icann.org/pages/viewpage.action?pageId=56984613 * Link to public comment box: https://www.icann.org/public-comments/draft-ccwg-accountability-proposal-20… * Link to public comments: http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30… * Link to public comment summary and analysis: https://www.icann.org/en/system/files/files/report-comments-draft-ccwg-acco… Best regards Alice

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AGENDA - Call #78
by Alice Jansen Jan. 19, 2016

Jan. 19, 2016

Dear all, In anticipation of your call #78 – Tuesday, 19 January 2016 - 12:00-15:00 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 min) 2. Rec 7 – Scope of IRP- Second reading (20 min) - Note: Becky will be sending the first reading conclusions document 3. Rec 6 – Human Rights – Second reading (30 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 4. Rec 4 – Board removal liability mitigation – Third reading (10 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 5. Rec 9 – AOC reviews (30 min) - First reading – see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… Break (10 min) 6. Rec 5 – Mission Statement (45 min) - Third reading - Note: Becky will be sending an update 7. Rec 11 – GAC Advice – First reading (45 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 8. A.O.B (3 min) As a reminder, all documents can be found on the wiki at: https://community.icann.org/display/acctcrosscomm/Final+Report Link to Adobe Connect: https://icann.adobeconnect.com/accountability/ Thanks Best regards Alice

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