January 2016 - Accountability-Cross-Community

Rec 2 - escalation process - second reading draft
by Jordan Carter Jan. 15, 2016

Jan. 15, 2016

Hi all Attached in PDF and Word are my tracked changes building on the work Bernie/Alice did to do the changes to the timeframes for escalation. Thanks for kicking it off, Alice and Bernie and others! The comments together form a second reading draft for the call on Thursday. This approach, in essence: - has a two-SO/AC requirement to petition for any of the powers (except whole Board recall - that would be three SOs/ACs) - ditches the Conference Call stage - extends timeframes for SO/AC decision This new approach is in recognition of the desire noted by SOs and ACs to have longer timeframes than the previous process allowed, and in recognition that in exercising any of the community powers, a reasonable amount of informal community dialogue and discussion is highly likely - and so SOs and ACs will have had several weeks to consider the issue before the final 21 days allowed to decide after the Forum. The new timeframes flow as follows, with this showing maximum possible time: 21 days: Petition deadline for first SO/AC + 7 days: Time for a second/third SO/AC to sign on for the petition [if no valid petition, lapses] + 21 days: Time within which Community Forum must be organised {note - within 7 days of valid petition, written rationale must be circulated - this does not go "on top of" the 21 days for the Forum, it is within it.} + 21 days: Time within which SOs and ACs must decide whether to exercise the power. So the longest possible time is 70 days. There's included an ability by the SO or ACs petitioning to extent to the next in-person meeting, EXCEPT (a new exception) where it's about the Budget power - we cannot put the budgets on hold for months, in my view..... cheers Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz <javascript:_e(%7B%7D,'cvml','jordan(a)internetnz.net.nz');> Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet * -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan(a)internetnz.net.nz Sent on the run, apologies for brevity

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FW: Question regarding AoC and "consumer trust"
by Burr, Becky Jan. 15, 2016

Jan. 15, 2016

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<http://www.neustar.biz> From: <Alexander>, Fiona Alexander <falexander(a)ntia.doc.gov<mailto:falexander@ntia.doc.gov>> Date: Thursday, January 14, 2016 at 5:58 PM To: Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@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<http://www.neustar.biz>

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Further Board feedback on Inspection rights
by Bruce Tonkin Jan. 14, 2016

Jan. 14, 2016

First, the Board agrees with an inspection right that limited to accounting books and records. The Board also agrees that the inspection right can be invoked by a single SO or AC. The inspection right, however, does not need to be a right reserved to the Sole Designator. As explained in the Board's Comments on the Third Draft Proposal, the inspection right should be a community right, and not a right reserved to the Sole Designator. Giving the Sole Designator a right of inspection - as opposed to making it a right held by the community - represents a significant and inappropriate change to the Sole Designator. The Sole Designator can be used to enforce the community's right of inspection (through the escalation process, if ICANN errs in response). Particularly when a single SO or AC could invoke the inspection right, requiring that demand to go through a community process to direct the Sole Designator seems to add complexity that is not necessary. The Board therefore recommends changing the words of Paragraph 20 to "the CCWG-Accountability recommends including in the ICANN Bylaws the right for SOs or ACs to inspect as outlined in California Corporations Code 6333, although this specific article reference would not be mentioned in the Bylaws." For Paragraph 21, "This inspection right is distinct from the Document Information Disclosure Policy (DIDP). While any eligible party can file a request according to the DIDP, Inspection Rights are only accessible to SOs or ACs. The scopes are also different as explained below." "Unlike the exercise of the other community powers, which require community engagement and escalation before initiating a request for action by the EC, the CCWG-Accountability recommends that a petition for inspection be brought directly by a single SO/AC or by multiple SO/ACs through making a written demand on ICANN for the requested materials. If the Board refused or ignored the request, the petitioning SO/AC(s) could then initiate an escalating community decision-making process to enforce the demand on the Board, requiring community consensus." The Board agrees with the inclusion of an investigation right, and notes that the language proposed in the redline reflects the Board's comments. Finally, the Board reaffirms its commitment to addressing improvements to the DIDP in WS2, and thanks the CCWG for the clarification in the document on the differences between the inspection right and the DIDP. Regards, Bruce Tonkin Board Liaison to the CCWG

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Question regarding AoC and "consumer trust"
by Burr, Becky Jan. 14, 2016

Jan. 14, 2016

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<http://www.neustar.biz>

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"Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws
by Burr, Becky Jan. 14, 2016

Jan. 14, 2016

I reject the argument that we have turned Article 1 into a “ Christmas tree” already and should thus not object to adding an additional consumer protection role for ICANN. I commend folks to look at the three column side by side analysis of the changes to Commitments and Core Values in the 3rd Draft Report. The relevant chart starts on page 11 of Annex 5. I believe that it demonstrates pretty conclusively that in transposing the AoC and the NTIA requirements into Section 1 of the Bylaws we have not YET introduced an entirely new concept into ICANN’s wheelhouse. The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself. I urge you to review this argument by reference to the actual text in the proposal, which includes the 3 column comparison. Here’s my analysis below for those who are interested. At the end I explain again why I am deeply opposed to including a reference to “consumer trust” untethered to the new gTLD context. Commitment 1. You can see (from the blue text at the top of page 12) that we added language regarding operation “consistent with its bylaws for the benefit of the Internet community as a whole, international law, open and transparent process, and competition. The obligation to comply with bylaws (limited Mission) appears now in (existing) Core Value 2; the competition provisions appear in (existing Core Values 5 and 6); the reference to international law appears in the existing Articles of Incorporation, as does the reference to the benefit of the Internet community as a whole; transparency gets a whole section in ICANN’s existing Bylaws. Commitment 2 incorporates the concept of neutral and judgment free [operation of the DNS], which we agreed would become "Preserve and enhance the neutral and judgment free administration of the technical DNS.” We also added direct references to interoperability, resilience, and openness. I don’t think any of these concepts are new. To the extent that they are, they are specifically cited as a requirement for the transition to proceed. Commitment 3 requires ICANN to maintain the capacity and ability to do its work in support of a singer interoperable Internet. While this language is new, it strikes me as basic service to its stability and security Mission. Commitment 4 is a very modest restatement of existing Core Value 2. Commitment 5 restates existing Core Value 7, and restates clearly accepted commitments to bottom-up, multistakeholder processes, private sector leadership informed by public policy advice, etc. All of these concepts appear in the existing Bylaws. While the phrases "bottom-up" and “multistakeholder” may not appear, they are echoes from the White Paper and the PDP spelled out in the Bylaws. Commitment 6 restates existing Core Value 8. Commitment 7 restates existing Core Value 10. Core Value 2 (which is really 1, but for some reason the chapeau is numbered here) restates existing Core Value 3, Core Value 7, and Core Value 9. Core Value 3 (should be 2) restates existing Core Value 4 and again references the use of bottom-up, multistakeholder processes. Core Value 4 (should be 3) restates existing Core Value 5. Core Value 5 (should be 4) restates existing Core Value 6 and again references the use of bottom-up, multistakeholder processes. Core Value 6 (should be 5) restates existing Core Value 9 and adds the concept of fiscal responsibility and accountability. Accountability already appears in the ICANN Bylaws, and it is hard to make the case that requiring ICANN to be fiscally responsible reflects a new role or obligation. Core Value 7 (should be 6) restates existing Core Value 11. Core Value 8 (should be 7) is new – but references the need to employ processes and procedures to prevent capture. Again, that strikes me as inherent in being accountable, serving the Internet community as a whole, etc. Accordingly, I remain strongly opposed to introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs. Some argue that promoting “consumer trust” in general (as opposed to in the context of new gTLDs) is demonstrably separable from sovereign legal concepts governing consumer protection, but don’t (and really can’t) support that by reference to national or international law. We really do not have a grip on the unintended consequences that this language could have, in particular, on registries – both gTLDs and ccTLDs – registrars, and entities that services that use the Internet’s unique identifiers. I am particularly concerned that this raises issues related to content regulation – consumer protection law is at its heart involves regulation of speech (albeit, commercial speech). I am happy to further explore this concept as part of Work Stream 2 (or separately). Becky 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<http://www.neustar.biz> From: David Post <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com>> Date: Tuesday, January 12, 2016 at 9:40 AM To: Alan Greenberg <alan.greenberg(a)mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Cc: Jonathan Zuck <jzuck(a)actonline.org<mailto:jzuck@actonline.org>>, Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>>, Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Jonathan Zuck wrote: Agree with Steve here. We need to keep core values minimal. This Christmas Tree is already getting weighed down a bit too much for my tastes. Alan Greenberg wrote: Oh I agree. But it got heavy a long time ago. If we want to start stripping stuff out that we have added, I am all for it. Why all this vehemence about this one item? I would suggest that it's because (a) while we may not have reached a tipping point of weighing down the Christmas Tree with so many values and commitments that ICANN will be able, in effect, to do whatever it likes itn the future, we're perilously close, and we should resist the temptation to add any new ones (including this one). And (b) there are far too many things ICANN would be able to justify (in good faith) as being designed to "increase consumer trust" that would take it very far from its core mission - instituting a program to investigate and remedy false, fraudulent, or defamatory claims on websites, for instance. David Alan From: < accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org> > Date: Saturday, January 9, 2016 at 11:10 AM To: Becky Burr <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz> >, Accountability Community < accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Our recommendation #9 is Incorporating the Affirmation of Commitments in ICANNâ€™s Bylaws. That includes commitments made by ICANN in the AoC, such as the commitment cited by Becky, to "promote competition, consumer trust, and consumer choice in the DNS marketplace." First, I donâ€™t think we should casually discard any of those three commitment items just because it is difficult to define. The AoC review thatâ€™s just begun will develop working definitions as part of its review. I would answer 'No' to both of Beckyâ€™s questions. This commitment does not need to be part of Core Values, and could live in the bylaws section describing the required AoC review of any expansion of new gTLDs. Since it is in the bylaws, ICANNâ€™s fulfillment of this commitment could be the subject of an IRP. And any changes to this commitment would be subject to veto by the empowered community. From: < accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz> > Date: Friday, January 8, 2016 at 2:10 PM To: Accountability Community < accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] "Consumer Trust" in the Mission Statement As discussed in our call yesterday, we would like to get some discussion started on some of the issues with the Mission Statement, Commitments & Core Values elements of the CCWG Proposal. One of those issues relates to the inclusion of the concept of promoting â€œconsumer trustâ€ in the Commitments and/or Core Values. The USCIB comment, for example, urged inclusion of a Commitment/Core Value of â€œpromoting competition, consumer trust, and consumer choice in the DNS marketplace.â€ ALAC urged inclusion of the consumer trust language. This is the topic we will discuss on Monday, during the Ad Hoc meeting just announced. Feel free to contribute your views in this thread, particularly if you are not going to be able to participate on Monday. ISSUE: Paragraph 3 of the Affirmation of Commitments describes the goals of the AoC, saying: "This document affirms key commitments by DOC and ICANN, including commitments to: … (c) promote competition, consumer trust, and consumer choice in the DNS marketplace….â€ Paragraph 9.3 of the AoC says: … IIf and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice …. ICANN will organize a further review of its execution of the above commitments two years after the first review, and then no less frequently than every four years. In the Initial Draft Proposal, this AoC language was transposed into the Core Values by requiring ICANN to depend â€œon market mechanisms to proote and sustain a healthy competitive environment in the DNS market that enhances consumer trust and choice.â€ (Para 107, page 27 Initial Draft Proposal) In the 2nd Draft Proposal we elected to delete the reference to consumer trust in the Mission statement and include it in the Review section of the Bylaws (See 3rd Report, Appendix 9, Para. 33). The reason we agreed to make this switch was because it is not a standalone ICANN commitment in the AoC, rather, it is specifically tied to new gTLD expansion and specifically tied to a required review. Several commenters in both the 2nd and 3rd comment round argued that the Core Values should specifically call out consumer trust. Some have disputed my characterization of Paragraph 3 of the AoC (i.e., it states the goals of the AoC but does not recite a specific commitment), on the grounds that my characterization is an opinion and not a fact. QUESTIONS: Should an AoC provision specific to TLD expansion be leveraged to impose generalized, independent, and affirmative competition and consumer trust protection obligations on ICANN? Does ICANNâ€™s fundamental Mission to ensure â€œstable and secure operationâ€ of the DNS, and its various Commitments (i.e., to use processes that enable competition, and to preserve stability, reliability, security, global interoperability, resilience, and openness) adequately address this concern? 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<http://www.neustar.biz> _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_…>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A…> music http://tinyurl.com/davidpostmusic<https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmu…> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25EF-…> *******************************

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Notes-Recordings-Transcript links for IRP Implementation Oversight Team (IOT) Meeting #1 - 14 January 2016
by Brenda Brewer Jan. 14, 2016

Jan. 14, 2016

Hello all, The notes, recordings and transcripts for the IRP Implementation Oversight Team (IOT) Meeting #1 - 14 January 2016 will be available here: https://community.icann.org/x/WJllAw 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. This should be a short call to cover functioning and scheduling. (12 participants.) We have received a draft of the Bylaws provisions which will be circulated to this group. This is a first draft which will probably generate significant discussion and debate. Probably best to go through this at a slightly later stage when other things begin to settle. We should establish a standard weekly meeting time. We should pick 2 consistent times for rotating calls. Calls may be brief initially but it would be useful to keep to a weekly schedule. Bylaws should address the basic operational practicalities. Instead of re-inventing the wheel we could collect and distribute examples of how these issues have been addressed by others. An eg. of this is rules of procedures of courts. The International Monetary Fund has an independent review process which has many similar features to what we are looking to creating. Would propose that institutions that have potentially useful rule books from which we could pick and choose. I have asked persons from different legal systems to get examples from different types of legal systems. Any suggestions on where we could look for this. I have the World Bank, (AC audio issues) Jeff LeVee (Jones Day) - could be useful to reach out to lawyers who have participated in ICANN IRPs in the past since there are only a few of these. Will be happy to provide input if requested. BB - ICDR and ICANN supplementary rules should be added to consideration. Understanding that this is more a constitutional court vs a straight commercial arbitration body and is very important to participants. Simplicity should be the rule of the day. Good suggestion that attorneys who participated in IRP proceedings should present to this group. Jeff LeVee (Jones Day): The 3 lawyers who have been most active in representing claimants are: John Genga (based in LA), Arif Ali (Dechert based in DC), and Flip Petillion (Crowell, based in Brussels). DM - for such a panel this would have to be managed very well to ensure we get what is needed - have a set of questions. MH - good idea, have to be intelligent how we do that, uncertain how well they will be tracking what is going on in the CCWG - however it is a substantially different process - so it's not about tweaks to the current process vs getting their views on our needs. GS - We are the recommending body so we will have to assess what is presenting. But prepping them properly would probably be useful. Another potential input is recent IRP decisions (.Africa). BB - useful input. JL question - how about decision makers from the current IRP panels? JL - that may work. I can recommend some names for this. BB - for the call next week we will circulated the draft Bylaws and circulate some documentation from various bodies. Participants should be assigned one the these each to analyze for their usefulness. BB - to what extent will participants be in Marrakech and if it makes sense to have a face to face to face there? This is more exploration at this point. We should act only on real consensus and there is no difference bet members and participants in this group. BB - plan a meeting next week at the same time. BB - important project and look forward to working with everyone. Adjourned 18:38 UTC

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TR: GAC advice and Board override issue
by Mathieu Weill Jan. 14, 2016

Jan. 14, 2016

Dear Colleagues, During the co-chair lawyer call last week, Rosemary raised a concern regarding whether requirements of 2/3 majority within the Board could be legally imposed. Since Icann Bylaws have such provisions today, it was decided that Rosemary would reach out to Jones Day to understand any prior legal analysis conducted by Icann on the matter. Below is a report on these discussions from Rosemary, which clarifies how this requirement can be legally imposed. Apart from mentioning this memo in the list of certified requests, we do not foresee any specific action as a follow up. Best Mathieu De : Rosemary E. Fei [mailto:rfei@adlercolvin.com] Envoyé : mercredi 13 janvier 2016 23:49 À : Mathieu Weill (Mathieu.Weill(a)afnic.fr) Thomas Rickert; León Felipe Sánchez Ambía (leonfelipe(a)sanchez.mx) Cc : ACCT-Staff (acct-staff(a)icann.org) Sidley ICANN CCWG (sidleyicannccwg(a)sidley.com) ICANN-Adler; Kevin B Espinola (kbespinola(a)jonesday.com) Objet : GAC advice and Board override issue Dear Co-Chairs, We spoke to Kevin Espinola at Jones Day earlier this week to discuss the current provisions in ICANN Bylaws that provide that a 2/3 Board vote is necessary to override certain advice from the GNSO and ccNSO consistent with the Boards governance role and individual directors fiduciary duties under California nonprofit corporate law. As we discussed with you in our Friday call, we were interested in any legal analysis relating to these provisions that might also apply to the proposed requirement for a 2/3 Board vote to override consensus GAC advice. While Kevin was not aware of any pre-existing legal analysis to share, based on factual information he provided, we have now concluded that such a requirement can be legally imposed. As you noted in our call on Friday, the proposed GAC override requirement has precedent in the current Bylaws: namely, under Annexes A and B, PDP recommendations approved by a supermajority vote of the GNSO and ccNSO, respectively, are required to be implemented unless the Board determines by a 2/3 vote that the policy is not in the best interests of ICANN or the ICANN community. We asked Kevin if we could review any legal analysis by Jones Day from when ICANN initially adopted these provisions; Kevin indicated that he was not aware of any, but agreed to search Jones Day files. While Kevin acknowledged that there could be a risk that the proposed provision would be invalid, he said he was comfortable with it in light of (1) the longstanding, unchallenged practice under the GNSO and ccNSO provisions cited above, and (2) the special nature of the GAC and its members, who are appointed by their governments for their diplomatic and Internet expertise. Under the California Corporations Code, in fulfilling their fiduciary duties, directors may delegate to, and rely on, a committee composed of experts on matters within their expert competence, so long as the directors act in good faith, after reasonable inquiry when the need is indicated by the circumstances, and without knowledge that would cause the reliance to be unwarranted. (CA Nonprofit Public Benefit Corp. Code Section 5231(b)(3).) Accordingly, since we understand that the GNSO and ccNSO members are experts in their respective fields and their recommendations fall within the relatively narrow and technical realm of that expertise, directors may rely on them to discharge their fiduciary duties, subject to the override where a significant majority (2/3) of the Board determines that such delegation is not appropriate. Similarly, while the realm of GAC advice is substantially broader (but not unlimited), we conclude that insofar as the representatives in the GAC are professional diplomats with expertise on matters of public policy and the Internet, delegation to the GAC (subject to the 2/3 override) and reliance by directors on GAC consensus advice for matters within GAC expertise, should not give rise to a violation of corporate nonprofit law. We emphasize that the Board would retain its supervisory role through its ability to override any particular consensus advice with a 2/3 vote, as it can with GNSO and ccNSO supermajority PDP recommendations. (We note in this connection that California law permits bylaws to require a higher-than-majority threshold for Board action.) Moreover, the Board retains the power, with the approval of the community, to revoke the arrangement altogether through the process for fundamental bylaw amendments. On the basis of the foregoing, we believe that the proposed requirement to follow GAC advice unless rejected by a 2/3 vote of the Board would be consistent with California law. Sincerely, Rosemary and Holly Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555 (phone) 415/421-0712 (fax) <mailto:rfei@adlercolvin.com> rfei(a)adlercolvin.com <http://www.adlercolvin.com> www.adlercolvin.com _____________________________ Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.

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Notes-Recordings-Transcript links for CCWG ACCT Meeting #77 - 14 January
by Brenda Brewer Jan. 14, 2016

Jan. 14, 2016

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #77 - 14 January will be available here: https://community.icann.org/x/HpVlAw A copy of the notes and action items and notes may be found below. Thank you. Kind regards, Brenda Action Items * ACTION ITEM/Conclusion: Becky and David to work on language for carve-out that will be put for discussion on list. * ACTION ITEM/Conclusion: Board to reach out to ASO and come up with proposal. * ACTION ITEM/Conclusion: Board to reach out to RSSAC and come up with proposal. * ACTION ITEM/Conclusion: Get input from NTIA on whether it was meant to be a chapeau and share on list. 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. Rec 1 Inspection rights - Second reading Board input: Board agrees with inspection right that are limited to accounting books and can be invoked by single SO/AC. They should be a community right and not be reserved to the Sole Designator. The Sole Designator can enforce the right. When invoked, demand should go to and through ICANN i.e. a community process. Giving the Sole Designator an inspection right gives the model an inappropriate change. Text proposal: Paragraph 20: "the CCWG-Accountability recommends including in the ICANN Bylaws the right for SOs or ACs to inspect as outlined in California Corporations Code 6333, although this specific article reference would not be mentioned in the Bylaws." Paragraph 21: "This inspection right is distinct from the Document Information Disclosure Policy (DIDP). While any eligible party can file a request according to the DIDP, Inspection Rights are only accessible to SOs or ACs. The scopes are also different as explained below." "Unlike the exercise of the other community powers, which require community engagement and escalation before initiating a request for action by the EC, the CCWG-Accountability recommends that a petition for inspection be brought directly by a single SO/AC or by multiple SO/ACs through making a written demand on ICANN for the requested materials. If the Board refused or ignored the request, the petitioning SO/AC(s) could then initiate an escalating community decision-making process to enforce demand on the Board requiring community consensus. On Investigation Rights: The Board agrees with the inclusion of an investigatory right, and notes that the language proposed in redline reflects the Board's comments. On DIDP: The Board reaffirms its commitment to addressing improvements to the DIDP in WS2, and thanks the CCWG for the clarification in the document on the differences between the inspection right and the DIDP. Feedback: - It is unclear that there will be an expanded process for DIDP. Is that the case? --> DIDP is not on agenda of recommendation 1. This discussion will take place on Thursday. Conclusion: We will be moving forward with inspection rights section. We will reopen second item - GAC as decisional participant - once we have input from GAC. ---- Rec 2 - Escalation timeline - Second reading Edits include: timeframe lengthened for SO/ACs to make a decision and conference call step removed. Once petition is launched, it will go to Community Forum. This has an impact on threshold and overall timeframe. Rationale for giving additional time is to give more time for SO/ACs to exchange on why they would want power to be used. Extension is not available for ICANN or IANA budget. On timeframe Feedback: - (1) The CF format allows for a "second or third" session if needed - because the CF is the best chance to amicably resolve an issue that makes sense but won't these added sessions need an extension "as appropriate" as 21 days may be inadequate ---> Community Forum might take 1-2 days. Cannot imagine it would but there could be a Community Forum where separate sessions to give a global conversation (e.g. session at 06:00 UTC - 14:00 UTC etc). We have set deadlines for when Forum should be started but may want to set tighter limits for duration of Forum. - (2) Suggest step six get 3 days, not 1 - there may be communication issues or human error. ---> Board will be advised. SO/AC decision will be recording decisions publicly. - (3) Could the "days" specified be limited to week days - remember that holidays vary widely across the globe and August is virtually work-free almost everywhere ---> Intention is not that 21 days would be business days. If we want to extend timeframe, we should have discussion but the days in this document are calendar days. - There is encouragement to socialize other information required before the Community Forum is held. We cannot be too prescriptive on number of days (depending on difficulty of issue). We should allow for flexibility. We should not be too prescriptive on process - when resolution has been found. Feedback: - Use calendar days instead of week. ---> Natural days will be used. - Community Forum is opportunity to resolve differences between community and Board. If there is opportunity for resolution of issues, there will need to be multiple sessions. It is inevitable that there will be multiple sessions. - Escalation timeframe has been issue for some GAC members. How many days did the process have before the changes (at a maximum) and how many days will it have when the changes proposed by Jordan will be inserted? We might be compressing too much. Jumping to the Community Forum needs to be considered with care. Sessions does not mean meeting on same days. We should allow for further deliberations. If Board comes up with new solution/reasoning, we need to go back to our SO or AC. More time is needed for meaningful deliberations. By suppressing conference call, we are diminishing elements of deliberation. ---> In the previous process, we were rushing SO/ACs (conference call within 7 days). By deleting this step, we are saving two decision points. We may want to give timeframe for which discussions should happen. On formal structure, there will be informal discussions going on. We need to juggle community need for dialogue with exercise of powers. - Our objective is to streamline the process. There are discussion steps before the Community Forum. Community will be informed for Community Forum discussion. Feedback: - Unclear that there will be deliberations Board input: The Board will support the community in making reasonable adjustments to the escalation timeframes to support the community's ability to take quick action to exercise its powers, while still having the time it needs to socialize the issues appropriately. Where the community believes that some of the tight timeframes might require adjustment by a matter of days, or have flexibility to simplify some of the steps when broad community support is clear, these are all areas that the Board can support adjusting. As the CCWG works to finalize a revised proposal on this, the Board notes that it would not support an extension of the initial petition phase beyond 30 days, and urges the timelines to be drafted with efficiency and quick action in mind. On thresholds, the Board supports the CCWG modification at Paragraph 62. On Board removal, the Board does not support the change at Paragraph 64. Demonstration of full community support for the exercise of this ultimate power is essential, and the Board does not support a change to lower this threshold. The other areas where this reduced threshold is proposed (blocking budget, fundamental Bylaws changes) do not raise this same concern. A proposed redline of Paragraph 64 to address this concern is: The CCWG-Accountability also recommends that in a situation where use of the community powers of either blocking a budget or approving changes to Fundamental Bylaws, where only four Decisional SOs or ACs participate, and the threshold is set at four in support these two powers will still be validly exercised if three are in support and no more than one objects. The CCWG-Accountability came to this decision after considering the extended escalation process now proposed prior to the use of Community Powers, and to avoid the risk of powers being un-useable (especially the risk of making changes to ICANN's Fundamental Bylaws effectively impossible. Conclusion: We are trying to have a process that is efficient and flexible. Documentation should be exchanged prior to Community Forum. We will continue collecting ideas and refining on the list. We will conclude this item next week. On thresholds Feedback: - If at stage where SO/ACs cannot take action (3 out of 5), we will end up with situation where organization is frozen and Bylaw cannot be changed. If Community Forum is called and no one attends, the Board could act unilaterally past a defined period of time. There needs to be an escape patch. ---> Let's move this concern and suggestion to the list. If it gets traction, we will move it to the plenary. - Disagree with suggestion above. Conclusion: No objection to thresholds proposed in Jordan's revised document. Rec 4 - Budget (IANA) Board input: Paragraph 21: Board is very supportive of text - it addresses concerns. We are properly delivering services. The whole caretaker budget should be embedded in Fundamental Bylaws. 1) e. Board Proposal on ICANN Caretaker Budget. In the event that the process for community power to reject the Operating Plan and Budget is invoked, and after the preceding escalation mechanism (as described in Recommendation #2) has failed to resolve an issue, the rejection is triggered. While the rejection is in effect and being resolved, ICANN needs an operating plan and a budget so that it can continue to operate on a day-to-day basis. The notion of a caretaker Operating Plan and Budget has been defined to address this need. The caretaker budget is in substance a replacement Operating Plan and Budget designed to allow the organization to operate its basic and primary functions, while avoiding "non-indispensable" work during the period of the rejection is in effect. The conceptual definition of the caretaker budget has been formulated, but the more detailed definition of what is "indispensable" or not now must be further documented. The Board accepts the above described approach to the veto process and corresponding caretaker Operating Plan and Budget. The Board 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. The Board's acceptance of this approach is also predicated on the consistency of the implemented solution with the conceptual definition described above. In paragraph between 19 and 20, the caretaker budget would be enacted and details are under development. We can have it in line with paragraph 13. Caretaker budget will be developed in implementation in line with guidelines. Feedback: * Valid points. In favor of Board suggestions on Caretaker Budget. We want to ensure we have alignment with budget power. * Agree with Board suggestions Conclusion: We will be taking Board suggestions on board. ----- Rec 3 Fundamental Bylaws (first reading) Overview of comments/discussion items. Feedback: / Conclusion: We will take on these suggestions for second reading. Rec 4 Scope of community IRP & Separation Power (first reading) Overview of discussion items. On community IRP Thresholds Board input: Board is concerned that there should be protections built in against ganging up and recommends higher thresholds. Feedback: - Some comments required approval of PDP should not be subject of IRP unless the initiating party of PDP is part of the process. We could leave threshold at 3 SO/ACs and still address Board concern. - If appropriate carve-out, this could be acceptable subject to review of text. - Carve-out is a sensible approach. ACTION ITEM/Conclusion: Becky and David to work on language for carve-out that will be put for discussion on list. On Expert Panels Do we want IRP to resolve inconsistent outcomes? Decision-making bodies need to contemplate how to resolve issues and effects on community. It should be something that should be addressed in PDP and limited to addressing failures of Expert Panels outside of in conflict with Mission. Board input: IRP should be used for violations of Bylaws or Articles. We do not want people making decisions over opinion of panel. There are procedures to follow. Feedback: - Concern that practical solution to inconsistent panel decisions. On separation process Feedback: / Conclusion: We will be moving forward with first reading. Language on carve-out will be sent to the list. Rec 5 - Mission On Numbers ICANN Board has proposed alternative formulation for numbers. It has added substantive role of ratifying policy at global level that are reasonably related to IP and AS numbers. It creates a role that cannot be changed. MOU with RIRs provide alternate mechanism for changing this. We get into a disconnect between MOU and Bylaws. Feedback: Online discussions with Bruce. We still feel it is important to keep this reference to ASO MOU given that we are clearly defining ICANN's role based on an agreement between ICANN and RIRs. Board is okay with this. If no further concerns from Board, our strong preference is to keep Third Proposal language. Board input: Alternative may be paragraph in ASO MoU. ACTION ITEM/Conclusion: Board to reach out to ASO and come up with proposal. On Root Servers RSSAC has proposed that ICANN's role is to facilitate coordination of the operation. ICANN Board language indicates an operational role and considers inputs from the communities dependent on the root server system. Board input: Would support text from RSSAC but need to discuss first. ACTION ITEM/Conclusion: Board to reach out to RSSAC and come up with proposal. On Consumer Trust Robust discussions on list with respect to language. AOC creates an obligation in context of new gTLDs expansion. It is being carried over in review section of Bylaws. Significant concerns voiced on scope of ICANN's role. Suggestion that we put general consumer trust issue in Work Stream 2 for further discussion. Feedback: - Disagree with pushing it to WS2. Part of getting AOC in Work Stream 1 is dealing with that issue. It might be helpful to go back to original source to see if we may have any assistance on this. - Much of what we have in AoC is already in Bylaws. This, however, was not. It is important to look at the AoC paragraph. Item on Consumer Trust is a chapeau leading into the reviews. It is something that is generally applicable, not just new gTLDs. It is within mission of contractual compliance. - We are trying to discuss a broader issue than what was originally in the AOC. AOC review section is within our report. What is meant by market place, consumer trust etc is beyond AOC and should be discussed in WS2. - Paragraph 3 is an introductory text. a - b - c -d link to specific commitments in 7 - 8 - 9. It specifically relates to expansion of TLD space and calls for specific review with respect to that. Comment that 3 is only about gTLDs is incorrect. We have transposed the commitment that is referenced in 3 c and articulated in 9. - Agree with pushing to WS2. - Commitment to consumer trust in DNS market place means in gTLD space. Against pushing to WS2. - Paragraph 3 of AOC is a chapeau to reviews. Inappropriate to read it as brand new. - AOC points is for WS1. We are trying to go beyond what is in AOC and there is a lot of concern about applicability. It would be a game change if add components to WS1. This needs more work. - Language cannot be in use. We cannot proceed with expansive interpretation - It is obvious that goes beyond gTLDs but ok to go back to first references. ACTION item/Conclusion: Get input from NTIA on whether it was meant to be a chapeau and share on list. Conclusion: Incorporate the AoC as it stands as part of WS1 but continue to review the issue of extending Consumer Trust as part of WS2 AOB /

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Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws
by Burr, Becky Jan. 14, 2016

Jan. 14, 2016

Jorge, please see Annex 9 of the Draft Proposal, which provides this documentation 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<http://www.neustar.biz> From: "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Thursday, January 14, 2016 at 1:06 AM To: Alan Greenberg <alan.greenberg(a)mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>>, "avri(a)acm.org<mailto:avri@acm.org>" <avri(a)acm.org<mailto:avri@acm.org>>, Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: AW: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Good question. A comparison table (text of AoC and way it is being introduced into the Bylaws) would be helpful for those (like me) who do not know by heart the AoC… Regards Jorge Von: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Alan Greenberg Gesendet: Donnerstag, 14. Januar 2016 06:50 An: Burr, Becky <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>>; avri(a)acm.org<mailto:avri@acm.org>; accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Becky, can you please explain why you think that 3.c is there solely as an introduction to 9.3, whereas 3.a, 3.b and 3.d clearly have a wider scope? For those who do not have an AoC handy, I reproduce the section in question here. 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. Alan At 13/01/2016 02:01 PM, Burr, Becky wrote: Come on Avri - I could say that we don¡¯t have sufficient cause - let alone authority - to amend the AoC, but I don¡¯t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue. One group reads Paragraph 3 as a ¡°chapeau¡± text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC. I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws. I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN¡¯s remit. I know what protecting and promoting ¡°consumer trust¡± means to a consumer protection regulator with sovereign authority. I don¡¯t think that¡¯s ICANN¡¯s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws. But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2. 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 < http://www.neustar.biz<http://www.neustar.biz/>> On 1/13/16, 12:12 PM, "Avri Doria" <avri(a)acm.org<mailto:avri@acm.org>> wrote: >Hi, > >In this case, I do not believe we will have sufficient cause to request >that the AOC be cancelled by mutual agreement. If all of the AOC >concerns can't be brought into the bylaws, then they can't be said to be >covered by the the By Laws. > >Of course ICANN can still unilaterally abandon the AOC. > >I also think we may need to be much more careful to make sure we have >agreed upon definitions for all terms in the By Laws and not just those >that belong to concepts some people are not comfortable with. I know >there are some terms for which I have not been absolutely sure of the >meaning and on which we have never had real dialogue. For example in an >international context what do we really mean by 'promote', >'competition', and 'consumer choice'. I know I am not comfortable with >the way some people define these terms. What are our criteria for these >terms and for knowing when we have achieved them? How can a review >decide that we have adequate global competition? How active do we need >to be about promoting competition, especially in a global context with >economies that have different capabilities. How much choice is >sufficient consumer choice? I do not believe we have any better idea, >or have had adequate dialogue and consensus on the meaning of these >terms and concepts. I do believe we generally understand them as well >as we understand consumer trust, but not better. > >I am also sure I can find lack of dialogue and ambiguity on many other >terms used in the By Laws. Is that the process we must now open up? > >Lastly I think it is in the process of the multistakeholder AOC type >reviews that we work on our evolving consensus definitions. I am >certain that we now have a much deeper understanding of Accountability >and Transparency after the two ATRT reviews than we did before those >reviews. > >avri > >On 13-Jan-16 10:59, Burr, Becky wrote: >> I understand your point Avri, but (as I said, unlike the HR issue) we >>have >> had no real dialogue on what ©øconsumer trust©÷ encompasses (outside of >>the >> new gTLD review context), so it seems to me that moving the issue to WS2 >> is the only possible approach. >> >> >> 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 >> < http://www.neustar.biz<http://www.neustar.biz/>> >> >> >> >> >> On 1/12/16, 5:42 PM, "Avri Doria" <avri(a)acm.org<mailto:avri@acm.org>> wrote: >> >>> Hi, >>> >>> Not sure I buy into the Xmas tree analogy, especially when trying to >>> delineate values. >>> >>> And while I have not had to make this argument in a while, I still >>> maintain that as a vassal of the NTIA, ICANN would have been >>>constrained >>> to respect human rights and that the loss of NTIA forces us to take >>>some >>> responsibility for that as a corporation, especially in regard to an >>> open Internet. >>> >>> I still find it rather shocking and depressing that many, including our >>> Board are fighting against human rights so hard at iCANN. Option 2b >>> would be a travesty and 2c is just a fig leaf, better than nothing, but >>> barely. >>> >>> As for consumer trust, that may be a similar situation. NTIA has shown >>> by its participation in the AOC how much it cares about consumer trust, >>> and I think that if the complaints against ICANN for consumer issues >>>got >>> any worse than they are, we would hear about from the NTIA and it >>>would >>> be a consideration for any IANA renewal. I would hope that they would >>> reject any plan that did not promise an effort to maintain and improve >>> ours. >>> >>> >>> avri >>> >>> On 12-Jan-16 16:30, Andrew Sullivan wrote: >>>> On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote: >>>> >>>>> The language on human rights would be a departure from that >>>>> standard, and the introduction of a generalized ©øconsumer trust©÷ role >>>>> would be yet another. Apart from these two concepts, all of the >>>>> assigned roles and responsibilities appear in ICANN©ös existing >>>>> Bylaws, Articles of Incorporation, and the White Paper itself. >>>> I think the above is an important argument, and it takes on more >>>> importance when we reflect on previous observations from the NTIA that >>>> this accountability work ought not to be an opportunity to remake >>>> ICANN. >>>> >>>> Best regards, >>>> >>>> A >>>> >>> >>> --- >>> This email has been checked for viruses by Avast antivirus software. >>> >>> https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_antiv >>>ir >>> >>>us&d=CwIGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahO >>>P8 >>> >>>WDDkMr4k&m=mPCiA33T_ipM9xYTRwc9mx-BySpmmwfZsdwlQRjVXhM&s=90feHGO6z1UakNU >>>Km >>> 1puqej2hiSN0i1qKEBXIp7F1sY&e= >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> >>> >>> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma >>>n_ >>> >>>listinfo_accountability-2Dcross-2Dcommunity&d=CwIGaQ&c=MOptNlVtIETeDALC_ >>>lU >>> >>>Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=mPCiA33T_ipM9xYTRwc9 >>>mx >>> -BySpmmwfZsdwlQRjVXhM&s=r-pEdrcIahOTlTQ9i-oail-6pa2AEY55jJwnzefh8U8&e= >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> >> >> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman >>_listinfo_accountability-2Dcross-2Dcommunity&d=CwIF-g&c=MOptNlVtIETeDALC_ >>lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=PF_NdosT4JCr5C4OVB8 >>QdQB7quVw9enLpLj_xII31sI&s=eMSU5H8PvaY5Mf0Gi1SEuiQhpT01vxOvZGJgpclgqyE&e= >> >> >> > > >--- >This email has been checked for viruses by Avast antivirus software. > https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_antivir >us&d=CwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8 >WDDkMr4k&m=PF_NdosT4JCr5C4OVB8QdQB7quVw9enLpLj_xII31sI&s=6CL2_4RFJr5TCJVan >JlKVPZ87BU4rKMhz9XZ7Hdz-XA&e= > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> > https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman _ >listinfo_accountability-2Dcross-2Dcommunity&d=CwIF-g&c=MOptNlVtIETeDALC_lU >Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=PF_NdosT4JCr5C4OVB8QdQ >B7quVw9enLpLj_xII31sI&s=eMSU5H8PvaY5Mf0Gi1SEuiQhpT01vxOvZGJgpclgqyE&e= _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…>

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Board further comments on recommendation 4 - relating to the IANA Budget
by Bruce Tonkin Jan. 14, 2016

Jan. 14, 2016

Hello All, On Budget (IANA) Recommendation 4, the Board has the following comment: The Board supports the revisions provided in the 1st reading document of the CCWG for this provision. The addition of language reflected in paragraph 21 addresses the Board's comments and concerns that any process through which a portion or the whole of the IANA budget is subject to rejection must include the voice of the operational communities served by the IANA functions. Additionally, the Board supports the inclusion of the process ensuring the stable and continuous delivery of the IANA Functions, and proper delivery of contractual service levels to the respective operational communities. With regards to the caretaker budget (reference in paragraph 13) the Board wants to remind the CCWG of its comments on the ICANN Caretaker budget, and the recommendation that the whole of the caretaker budget approach is embedded in the Fundamental Bylaws, including the responsibility of the CFO to establish the caretaker budget in accordance with the defined approach. The board's proposal can be found on page 10, paragraph 1e of its comments. The language in the redline could be read as a commitment to only include caretaker budget considerations for the IANA budget. Copied here for convenience: 1) e. Board Proposal on ICANN Caretaker Budget In the event that the process for community power to reject the Operating Plan and Budget is invoked, and after the preceding escalation mechanism (as described in Recommendation #2) has failed to resolve an issue, the rejection is triggered. While the rejection is in effect and being resolved, ICANN needs an operating plan and a budget so that it can continue to operate on a day-to-day basis. The notion of a caretaker Operating Plan and Budget has been defined to address this need. The caretaker budget is in substance a replacement Operating Plan and Budget designed to allow the organization to operate its basic and primary functions, while avoiding "non-indispensable" work during the period of the rejection is in effect. The conceptual definition of the caretaker budget has been formulated, but the more detailed definition of what is "indispensable" or not now must be further documented. The Board accepts the above described approach to the veto process and corresponding caretaker Operating Plan and Budget. The Board 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. The Board's acceptance of this approach is also predicated on the consistency of the implemented solution with the conceptual definition described above. Regards, Bruce Tonkin ICANN Board Liaison to the CCWG

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