January 2016 - Accountability-Cross-Community

Re: [CCWG-ACCT] FW: Question regarding AoC and "consumer trust"
by avri Jan. 15, 2016

Jan. 15, 2016

Thanks. Convinced me. Avri Sent from my T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: "Burr, Becky" <Becky.Burr(a)neustar.biz> </div><div>Date:01/14/2016 5:59 PM (GMT-05:00) </div><div>To: Accountability Community <accountability-cross-community(a)icann.org> </div><div>Cc: </div><div>Subject: [CCWG-ACCT] FW: Question regarding AoC and "consumer trust" </div><div> </div> Fiona’s response, just in case she is unable to post to the list J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz From: <Alexander>, Fiona Alexander <falexander(a)ntia.doc.gov> Date: Thursday, January 14, 2016 at 5:58 PM To: Becky Burr <becky.burr(a)neustar.biz> Cc: Accountability Community <accountability-cross-community(a)icann.org> Subject: RE: Question regarding AoC and "consumer trust" Hi Becky In the drafting of the Affirmation of Commitments, NTIA’s intent was to ensure that consumer trust was considered as part of the new gTLD expansion process. It was not to broadly include consumer trust as an obligation of ICANN. If the community wants to have a discussion about consumer trust as a broad ICANN obligation, that is a community decision. The Affirmation of Commitments, though, should not be read or used to justify an expansion, if one is to take place. Please let me know if I can assist further. Fiona ------------------------------------------------------------------------------------------- Fiona M. Alexander Associate Administrator for International Affairs National Telecommunications and Information Administration (NTIA) (202) 482-1866 www.ntia.doc.gov From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Thursday, January 14, 2016 5:49 PM To: Alexander, Fiona Cc: Accountability Community Subject: Question regarding AoC and "consumer trust" Fiona – I am hoping you can shed some light on ICANN’s obligations with respect to “consumer trust” under the Affirmation of Commitments (AoC). Paragraph 3 of the AoC states that the document “affirms key commitments by DOC and ICANN, including commitments to: … (c) promote competition, consumer trust, and consumer choice in the DNS marketplace.” Paragraph 9.3, entitled “Promoting competition, consumer trust, and consumer choice,” obligates ICANN to “ensure” that “as it contemplates expanding the top-level domain space, the various issues that are involved (including competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection) will be adequately addressed prior to implementation.” It goes on to require ICANN to conduct specific reviews at specified intervals following the introduction of new gTLDs. In transposing ICANN’s AoC commitments into the ICANN Bylaws, the CCWG Proposal contemplates adding a Bylaws provision requiring the specific reviews called for in the AoC, including review of competition, consumer trust, and consumer choice in relation to expansion of the gTLD space. Some members of the CCWG believe that this approach faithfully transposes the consumer trust obligations which are referenced in Paragraph 3 but explained in Paragraph 9.3 to apply exclusively to ICANN’s expansion of the TLD space. Other members of the CCWG interpret the AoC to obligate ICANN also to undertake a general role in promoting consumer trust “in the DNS marketplace.” It would be very helpful if you could help us understand the intent of the drafters with respect to ICANN’s “consumer trust” obligations ICANN under the Affirmation of Commitments. Many thanks on behalf of the CCWG, Becky Burr Rapporteur for Work Party 2 J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz

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Recommendation 4 - Board removal liability mitigation - 2nd reading conclusions
by Alice Jansen Jan. 15, 2016

Jan. 15, 2016

Sent on behalf of CoChairs Please find below the main conclusions of our deliberations during call #76. The updated document is attached. 1. Pre service letters: (page 9, paragraph 39) a. to mitigate risk of litigation in case of Board removal, pre-service letters for Board members could be required b. Lawyers provided language to provide adequate direction for implementation. c. Board confirmed it is comfortable with pre service letters d. Board does not support the use of waiver and indemnification. e. Awaiting further Board input and legal analysis. 2. a. Agreement to add a requirement for a dialogue with the affected director and a requirement for a written rationale. b. Icann Board confirmed that the written rationale was not a restriction on the type of motives / rationale / argument. Best regards Mathieu, Thomas, León

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DOCUMENT - Rec 9 - AOC reviews (first reading)
by Alice Jansen Jan. 15, 2016

Jan. 15, 2016

Sent on behalf of CCWG-ACCT Co-Chairs In preparation for your Recommendation 9 – AOC review (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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Recommendation 12 - Work Stream 2 - 2nd reading conclusions
by Alice Jansen Jan. 15, 2016

Jan. 15, 2016

Sent on behalf of CoChairs Please find below the main conclusions of our deliberations during call #76. The updated document is attached. 1. Interim Bylaws clarifications confirmed to be addressing most of the Board’s concerns (pending further confirmation by Icann Board), by highlighting that WS2 will be following similar rules as WS1 : consensus recommendations, endorsement by Chartering Orgs, ability for the Board to engage special dialogue, 2/3 threshold for such Board decisions…. 2. Edits to the documents will include focus on fact that WS2 deliberations will be open to all (similar to WS1) 3. List of WS2 items is “limited to” instead of “related to”. A note is added that clarifies that further items beyond this list can be accommodated through regular review cycles, or specific CCWG. 4. Timeframe discussion : target dates are needed, but hard deadlines would not be appropriate or helpful. Document will be reviewed in line with that direction. 5. Agreed to incorporate PEG Advisor input to strengthen diversity requirement 6. Enhancing Ombudsman role and function is confirmed as a WS2 item 1. Summary graphics has been updated (see page 4) 2. Becky and Avri to provide a paragraph to describe the type of enhancements that will be considered (to be clarified on list) Best regards Mathieu, Thomas, León

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Timing and incorporation of Lawyers input
by Mathieu Weill Jan. 15, 2016

Jan. 15, 2016

Dear Colleagues, Last week, the co chairs and lawyers held a call to coordinate the collection and incorporation of lawyers input into our report. As was mentioned on this list, during finalization of the 3rd draft report, some comments from our lawyers could not be taken into account and we wanted to remedy this issue going forward. We have agreed that lawyers will provide feedback, through the co chairs, on the various recommendations in two steps : - After first reading, lawyers will share high level feedbacks or concerns so they can be discussed as part of the 2nd reading meeting ; - After second reading, lawyers will provide detailed edits when appropriate. These edits will be incorporated unless they create a substantial change. In this case, new discussion on the list would take place. With this process, our group can draw upon the vary valuable skills and experience from our lawyers all through our discussions. This memo can be considered as certifying request for review for the lawyers. Best regards, Thomas, Leon and Mathieu De : accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Brenda Brewer Envoyé : lundi 11 janvier 2016 20:37 À : CCWG-Accountability Objet : [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Co-Chairs and Lawyers Meeting (8 January) Hello all, The notes, recordings and transcripts for CCWG ACCT Co-Chairs and Lawyers (8 January) will be available here: https://community.icann.org/x/15dlAw 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. HJGregory - reasoning for call - at this critical time in the project want to discuss if the team could be more useful to the process. Concerns regarding the edition of documents since their comments are not being included. Also need greater clarity about which of our comments get posted. Uncomfortable with the certification requirements but this should not apply to the drafting of documents. We would also expect to understand what is expected for implementation so we can reserve the resources accordingly. Finally need guidance on Marrakech given participation by phone would not be practical. MWeill - Thank you for your directness. Looking at your questions. On integrating comments - the timeframe did not allow us to work with smaller comments. The co-chairs initially focused on any major comments. TRickert - we are going through different phases. Making too many changes in any version of the document would cause concern to the community. Going into details too much can distract people from focusing on the major issues. So a balance must found between what legal and staff can do. HJGregory - we understand you concerns but wanted to ensure that our concerns were clear. This being said we would recommend posting our comments to the entire group and that the group is our client. Often we are not involved on an issue does not mean we have opined in any fashion. There may be a misconception on the level of comments from the lawyers wrt the 3rd draft. MWeill - we are editing the 3rd version currently - we have to consider your input more up front. But we have to find a way to make this efficient for everyone. Given we are working on recommendation by recommendation we could ask for legal comments on a per recommendation which has had a first reading. HJGregory - this sounds like a good idea, but the answer to dealing with lawyer comments is not to ignore them. TRickert - We agree with you but we have been working to incredibly tight schedules. RMFrei - we need to understand why our comments are taken or not. TRickert - Understand but the new interactive approach should handle this issue. Documents that go out after the first reading will include all the lawyer comments. We should also document which comments are accepted or not. HJGregory - this sounds acceptable. MWeill - next implementation HJGregory - support using the details to implementation. At some point the implementation cannot be made by the full CCWG. Also understand the cost implications for ICANN. As such implementation should not be with done with the full group. MWeill - was not the strategy of oversight groups for implementation not ok. HJGregory - concern that using the same group of people for oversight and uncertain they can get above trying to line edit vs checking for consistency. MWeill - Understand that this is a challenge and there is no way around it. This is in part because of community experience with other implementation exercises having generated unexpected results. HJGregory - Would encourage the co-chairs to help the oversight participants that the process is going to be different - it will not be interactive drafting - lawyers will draft the documents and the oversight will group can comment on if it matches the guidelines. We will get there. Implementation needs to be a different process. TRicket - Implementation is about ensuring that the group's wishes and the work product. But understand we have to streamline to make it efficient. HJGregory - Marrakesh - we have real concerns that we can be effective via the telephone. Understands it depends on what the requirements are given where we are. MWeill - currently expecting ICANN55 to scope WS2 and would not expect lawyers would be required for this. There would also implementation work on WS1. So we do not expect the draft Bylaws will be ready for ICANN 55. HJGregory - one approach could be for us to book refundable airline tickets and as time progresses we can decide if we are needed. As such we should make reservations which can be cancelled. MWeill - the IRP skill set would be needed in Marrakesh - but we would expect that the total number of lawyers on the ground would be less than previously. RMFei - I will probably sit this one out if the focus will be IRP. So I will wait to figure this out. HJGregory - what could we be doing to help you more.? please let us know. TRickert - thanks for the offer we will need to think about it some more. Things are moving quite a bit, commenting ad hoc on every suggestion that is circulated. After the first reading we publish this to the list and lawyer comments would be best there. HJGregory - agree with this. HJGregory - maybe the first step should be to reach out to Jones Day to understand their risk analysis of this. RMFrei - also not everything is black and white - there are some judgement call. TR and MW - in case lawyers have concerns about provisions that currently exist in the Bylaws, and may not be within the CCWG remit, they should discuss with JD first. RMFrei - on current process for reviewing changes to recs.? HJGregory - we should review materials from scratch? TRickert - the lawyers would share their high level comments on each recommendation / agenda item after 1st reading, then provide detailed feedback after 2nd reading . best to get your input after the first reading where you can insert your comments. Acceptable? HJGregory - yes. TRickert - certification of human rights question. The reason it makes sense to certify this because ICANN believes it is opening significant risk. Need to understand vs current risks. HJGregory - need to understand what you mean by human rights. HJGregory - this is it for us. Conclusion of the call.

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Recommendation 4 - Budget (IANA) - 2nd reading conclusions
by Alice Jansen Jan. 15, 2016

Jan. 15, 2016

Sent on behalf of CoChairs Please find below the main conclusions of our deliberations during call #77. The updated document is attached. 1. Confirmed clarifications requested by CWG regarding transparency, rationale and role of CWG-Stewardship in elaborating a process for IANA Budget (see pages 5 and 6) 2. Updated paragraph 22 to reflect IAB input, with specific clarification regarding the need to protect SLAs (see page 6, paragraph 22) 3. Guidelines on caretaker budget : a. current principles in the document provide sufficient guidelines for implementation of the concept of caretaker budget, taking note of the work under way in DT-O within CWG. b. As proposed by the Board, the CCWG-Accountability also recommends that the caretaker budget approach be embedded in the Fundamental Bylaws, including the responsibility of the CFO to establish the caretaker budget in accordance with the defined approach. c. Align recommendation in paragraphs 13 and 19 to confirm that caretaker budget applies to Icann budget as well as IANA Budget. 4. Budget community power provisions will remain as Fundamental Bylaws (as required by CWG) Best regards Mathieu, Thomas, León

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Recommendation 2 - Escalation timeframes - 2nd reading conclusions
by Alice Jansen Jan. 15, 2016

Jan. 15, 2016

Sent on behalf of CoChairs Please find below the main conclusions of our deliberations during call #77. The updated document is attached. a. Discussed changes in the escalation timelines by simplifying some decision steps in the process, while ensuring that the issues remain widely discussed within the Community (tracked changes are shown below on page 3). b. Make it mandatory for petitioning party to reach out to SO/ACs to socialize relevant information before Community Forum. c. Removing the mandatory community conference call will allow for extension of timeline if so requested by an SO or AC. Additionally, should the petitioning group need a call, ICANN will provide resources upon request. d. Discussions focused on whether to keep the conference call (or a Webinar) as a standard instead of optional step (although not requiring decisions at the end of the call) => This point remains to be finalized. 2. Acknowledging concern raised by ALAC and others regarding the thresholds adjustment in case the number of Decisional Participant is lower (paragraph 62 – page 12), the group confirmed the option to lower the requirement of support for Fundamental Bylaw change only. a. Since the Fundamental Bylaw change process is a requirement for “approval” and not a “rejection” option, this would preserve the requirement for stronger protection of Fundamental Bylaws. (see page 11) b. Former paragraph 62 is therefore removed. 3. The use of percentage for thresholds can be suggested as guidelines for discussion basis in the event of the creation of new SO/ACs but there would need to be a conscious decision, depending on the circumstances. a. Clarify that if such a new SO/AC were to become a decisional participant in the Empowered Community, this change would require a change to the Fundamental Bylaws. Best regards Mathieu, Thomas, León

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Recommendation 4 - Scope of community IRP & Separation power - 1st reading conclusions
by Alice Jansen Jan. 15, 2016

Jan. 15, 2016

Sent on behalf of CoChairs Please find below the main conclusions of our deliberations during call #77. The updated document is attached. 1. Scope of Community IRP : a. Propose draft wording for Board suggestion (also mentioned by RySG) to develop an exception process, similar to the PDP carve-out, whereby the impacted part of the community would have a required voice in the support to the decision to initiate a community IRP (ie, gNSO required if the decision is a gNSO policy action or inaction, etc.) (see page 23 – para 70) i. A specific provision will be included in the Bylaws to require specific SO or AC concurrence in support of community IRP challenge against Board decisions that relate directly to certain SOs, such as Policy Development Process outcomes. b. In light of this carveout, keep current level of required support for Community IRP (3 SO/ACs in support; 1 objection) c. Align position with Rec #7 discussion on Expert panels : IRP scope is focused on assessing whether decisions are compliant with the Bylaws 2. Separation process (page 24): a. Confirmed Icann Board suggestion to clarify that Separation process applies to domain name management function to IANA only b. Insert CWG conditions from their comment: i. The right to reject Board decisions Icann Board decisions relating to reviews of IANA Functions can be applied by the Empowered Community an unlimited number of times. ii. The relevant Icann Bylaw drafting process and related Separation process will continue to include involvement by the CWG-Stewardship. Second reading is planned for Thursday, 22 January. Best regards Mathieu, Thomas, León

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Recommendation 1 - Inspection rights - 2nd reading conclusions
by Alice Jansen Jan. 15, 2016

Jan. 15, 2016

Sent on behalf of CoChairs Please find below the main conclusions of our deliberations during call #77. The updated document is attached. 1. Scoping of Inspection rights (§19 and beyond) to address Board concerns, based on Board suggestion and lawyer memo (details on pages 5-6): a. Scope and limitations confirmed, stressing the difference between DIDP and Inspection Rights – Board confirmed agreement on new language b. Inspection rights for accounting books and records and minutes based on a one SO/AC threshold c. Introduce additional suggestion by Icann Board regarding Investigation right (audits), based on 3 SO/ACs threshold. d. Confirmed direction for implementation to avoid abusive claims e. Included Board comment edits (see below) 2. Discuss regarding GAC as Decisional Participant in the Community Powers differed awaiting final GAC input – see comment page 6 Best regards Mathieu, Thomas, León

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Fwd: Certification: Re: Recommendation 4 - power to remove Individual Board director - 1st reading conclusions
by Thomas Rickert Jan. 15, 2016

Jan. 15, 2016

All, please find below the certification on Rec 4 - individual Board member removal to find agreeable language for the waiver / indemnification issue. Thanks and kind regards, Thomas > g der weitergeleiteten Nachricht: > > Von: Thomas Rickert <thomas(a)rickert.net> > Datum: 15. Januar 2016 um 10:34:07 MEZ > An: Holly Gregory <holly.gregory(a)sidley.com>, "Rosemary E. Fei" <rfei(a)adlercolvin.com> > Kopie: Mathieu Weill <mathieu.weill(a)afnic.fr>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, ACCT-Staff <acct-staff(a)icann.org>, Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, ICANN-Adler <ICANN(a)adlercolvin.com>, "McNicholas, Edward R." <emcnicholas(a)sidley.com> > Betreff: Certification: Re: Recommendation 4 - power to remove Individual Board director - 1st reading conclusions > > Dear Holly and Rosemary, > thanks for helping us with the language on the power to remove Individual Board directors. As you know, there was the discussion on the use of a waiver to be signed by the directors in connection with their pre-service letter and an indemnification by ICANN for those SO/AC representatives that raise concerns about a director. > > Our discussions have shown there seems to be support for indemnifying the community representatives so that they do not have to be afraid of being sued if they raise concerns about directors and potentially trigger their dismissal. On the other hand, there were concerns expressed that a waiver would leave the director unprotected against defamation. The explanation that you gave, i.e. that a waiver would likely not be deemed valid in case of extreme cases of defamation, was not sufficient to remove the concerns. > > Hence, we concluded that it would be appropriate for you and your teams to reach out to Jones Day to come up with suitable language balancing the interests of the community representatives and Board members. > > Thank you for this. > > Kind regards, > Thomas

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