January 2016 - Accountability-Cross-Community

Final Drafts of Annexes 8 and 10 - Lawyer Review
by Gregory, Holly Jan. 31, 2016

Jan. 31, 2016

Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find our light comments on the final drafts of Annexes 8 and 10. Our comments and Annexes 2 and 6 will follow shortly. One global comment: We assume that the notes about key discussion items and 1st reading comments that currently appear in the drafts will be removed before publication. Kind regards, Holly and Rosemary 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<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************

1 1

CCWG - Recommendation 8 - Final draft version for legal review - co-chair approval requested
by Bruce Tonkin Jan. 30, 2016

Jan. 30, 2016

From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Saturday, 30 January 2016 4:01 AM To: Accountability Cross Community <accountability-cross-community(a)icann.org>; ACCT-Staff (acct-staff(a)icann.org) <acct-staff(a)icann.org> Subject: [CCWG-ACCT] Fwd: CCWG - Recommendation 8 - Final draft version for legal review - co-chair approval requested All, Per the request of the co-chairs we are publishing the final draft version of Annex 8 for legal review. This version has been generated from the conclusion of the second reading document including the high level legal edit suggested by our lawyers . As such you will find attached 2 versions, Word and PDF of the marked up text. Once this legal review is completed (48 hours - 1 8 :00UTC Sunday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments. Thank You. Bernard Turcotte ICANN Staff Support for CCWG

1 0

let's stick to the substantive issues on over-empowering GAC and not get personal and start name-calling
by Robin Gross Jan. 29, 2016

Jan. 29, 2016

I was rather disappointed by the approach taken in yesterday’s meeting to address concerns about the excessive and improperly balanced power being given to GAC in this “accountability” process. Rather than trying to paint people as unsympathetic or “anti-government”, it is better to address the arguments presented by those who are uncomfortable with this level of control being handed to GAC through this process. There are legitimate concerns about over-empowering one segment relative the existing structure and balance among SO-ACs, and those concerns should be addressed on their merit, without the need to resort to name-calling. Please don’t make this a debate about people who hold concerns, but rather stick to the substantive issues. Thanks, Robin

3 3

Fwd: CCWG - Recommendation 10 - Final draft version for legal review
by Bernard Turcotte Jan. 29, 2016

Jan. 29, 2016

All, Per the request of the co-chairs we are publishing the final draft version of Annex 10 for legal review. This version has been generated from the conclusion of the second reading document with edits by lawyers, co-chairs and staff. As such you will find attached 2 versions, Word and PDF of the marked up text. Once this legal review is completed (48 hours - 21:00 UTC Sunday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments. Thank You. Bernard Turcotte ICANN Staff Support for CCWG

1 0

Expanding the GAC-oriented review in the AoC Accountability & Transparency Review
by Steve DelBianco Jan. 29, 2016

Jan. 29, 2016

On yesterday’s CCWG call, we reviewed Recommendation 10 – SO/AC Accountability (latest doc<https://community.icann.org/download/attachments/56989168/Rec%2010%20-%20SO…>). I suggested one way to improve the community’s review of GAC-oriented activities lies in the AoC’s Accountability and Transparency Review (known as ATRT). Here is the suggested edit [in red and brackets] to the AoC’s ATRT Review (Annex 9<https://community.icann.org/download/attachments/56989168/Rec%209%20-%20AOC…> para 85): (b) assessing the role and effectiveness of GAC interaction with the Board [and with the broader ICANN community], and making recommendations for improvement to ensure effective consideration by ICANN of GAC input on the public policy aspects of the technical coordination of the DNS If this is acceptable to CCWG, we should amend Annex 9 para 85 as above. It might also be helpful to note the GAC-oriented review in Annex 10<https://community.icann.org/download/attachments/56989168/Rec%2010%20-%20SO…>, under para 3 for Work Stream 1. As in: “The periodic review of ICANN Accountability and Transparency required under the Affirmation of Commitments is being incorporated into ICANN bylaws as part of Work Stream 1. In Recommendation 9 and Annex 9, the Accountability and Transparency Review will include this among issues that merit attention in the review: (b) assessing the role and effectiveness of GAC interaction with the Board [and with the broader ICANN community], and making recommendations for improvement to ensure effective consideration by ICANN of GAC input on the public policy aspects of the technical coordination of the DNS

5 6

Fwd: CCWG - Recommendation 8 - Final draft version for legal review - co-chair approval requested
by Bernard Turcotte Jan. 29, 2016

Jan. 29, 2016

All, Per the request of the co-chairs we are publishing the final draft version of Annex 8 for legal review. This version has been generated from the conclusion of the second reading document including the high level legal edit suggested by our lawyers . As such you will find attached 2 versions, Word and PDF of the marked up text. Once this legal review is completed (48 hours - 1 8 :00UTC Sunday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments. Thank You. Bernard Turcotte ICANN Staff Support for CCWG

1 0

CCWG - Recommendation 2 - Final draft version for legal review
by Bernard Turcotte Jan. 29, 2016

Jan. 29, 2016

All, Per the request of the co-chairs we are publishing the final draft version of Annex 2 for legal review. This version has been generated from the conclusion of the second reading document with edits by co-chairs and staff. As such you will find attached 2 versions, Word and PDF of the marked up text. Once this legal review is completed (48 hours - 16:00UTC Sunday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments. Thank You. Bernard Turcotte ICANN Staff Support for CCWG

1 0

CCWG - Recommendation 6 - Final draft version for legal review
by Bernard Turcotte Jan. 29, 2016

Jan. 29, 2016

All, Per the request of the co-chairs we are publishing the final draft version of Annex 6 for legal review. This version has been generated from the conclusion of the third reading document with edits by co-chairs and staff. As such you will find attached 2 versions, Word and PDF of the marked up text. Once this legal review is completed (48 hours - 16:00UTC Sunday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments. Thank You. Bernard Turcotte ICANN Staff Support for CCWG

1 0

CCWG - Recommendation 1 - Final
by Bernard Turcotte Jan. 29, 2016

Jan. 29, 2016

All, As of the close of the comment period for Recommendation 1 no comments had been received. Therefore this recommendation is considered final The lawyers have suggested a few edits for consistency and these have been incorporated. Given there were no changes from the legal review version this will not be re-submitted for a final legal review (lawyers will review the complete package when it is completed). Red-lined and clean version attached for you convenience. Thank you. Bernard Turcotte ICANN Staff Support for CCWG On Tue, Jan 26, 2016 at 1:52 PM, Bernard Turcotte < turcotte.bernard(a)gmail.com> wrote: > > > Per the request of the co-chairs we are publishing the final draft > version of Annex 1 for comments by the CCWG. > > This version is the version produced by legal counsel with a few > additional edits for consistency by staff. > > You will find attached 2 documents, one with track changes (staff and > legal) and the other a clean version. > > The comment period for the CCWG will run from 18:00 UTC Tuesday 26 January > and will close at 18:00 UTC Thursday 28 January - providing the 48 hour > comment period. > > Please make your comments via email to the full CCWG list and use the > following subject line to identify your email as being a comment on this: > > *CCWG - Recommendation 1 - Final draft for CCWG comments* > > or simply reply to this email. > > Comments will be compiled in semi-real time by staff in a google sheet at: > > > https://docs.google.com/spreadsheets/d/18O37c6EQXHO3WYQWgGQzCGeSda_CKi6jao5… > > > > > Thank You. > > > Bernard Turcotte > ICANN Staff Support for CCWG > >

1 0

Re: [CCWG-ACCT] Regarding mission statement and human rights
by Dr Eberhard W Lisse Jan. 29, 2016

Jan. 29, 2016

Fundamental Rights are not the same as Human Rights, necessarily. Human Rights are fundamental (but perhaps not Fundamental everywhere), universal (perhaps even Universal) and inalienable (not even by applicable law) and they transcend all jurisdiction, even though they can be reinforced and strengthened nationally (by applicable law) There is no such thing as "international human rights". el -- Sent from Dr Lisse's iPad mini 4 > On 29 Jan 2016, at 11:58, Seth Johnson <seth.p.johnson(a)gmail.com> wrote: > > "Fundamental" is precisely what international human rights aren't. A > fundamental right is claimed by a people in their founding act for > their country, and elicits the strictest standard of review, wherein > any government act that touches them is unconstitutional unless it's > addressing an extremely compelling state interest and also narrowly > tailored to address that interest and affect the right to the least > extent possible. International human rights are enacted by > governments, so they are "statutory" and subject to a "balancing" > standard at best -- an international human rights treaty does not > create trump card fundamental rights so other treaties get cancelled > because they messed with the human rights -- since the same body > ("governments") enacted both, a judge can only assume other treaties > are intended to qualify the human rights treaty. It's equivalent to a > statutory right to drive, enacted by a legislature: they create the > right and they subsequently qualify it, with requirements to hold > insurance or wear seatbelts, etc. > > > Seth > >> On Fri, Jan 29, 2016 at 4:40 AM, Dr Eberhard W Lisse <epilisse(a)gmail.com> wrote: >> My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country. >> >> So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt. >> >> el >> >> >> >> -- >> Sent from Dr Lisse's iPad mini 4 >> >>> On 29 Jan 2016, at 10:52, Nigel Roberts <nigel(a)channelisles.net> wrote: >>> >>> >>> >>>> On 29/01/16 01:16, Bruce Tonkin wrote: >>>> Hello Nigel, >>>> >>>> >>>>>> With respect, the point that there is no applicable law has NOT been addressed, it has been ignored repeated. >>>> >>>> I think fundamentally as a global organization built on the multi-stakeholder model - the "applicable" law should be the rules we put in our bylaws. >>> >>> Finally! Thank you for this! >>> >>> This is the point exactly. >>> >>> There is no other law applicable to human and fundamental rights other than te corporation adopts voluntarily, such as in its by laws. This is because the corporation is a private sector body. Thus any reference to applicable law in the by law is entirely disingenouus as there is none applican;e to private companies. >>> >>> I would sugges, technically, the only 'applicable law' that could creates any binding obligation in respect of human rigths can only be the California company statutes that make the corporation legally bound to follow what decides and agrees to put in its by-laws and Articles. >>> >>> There's passing previous judicial examination of this -- see the Report of the .XXX IRP. >>> >>> So, it seems to me, what is needed is simply be a more detailed exploration of what the corporation committed to in by its original adoption of Article 4. >>> >>> What is needed is an overarching committment to the corporation carrying out its work with full respect for human rights. >>> >>> What is not needed are technical reservations and derogations, which on past form (see ICANN's submissions in the .XXX case) will be used by ICANN Legal to try weasel out of the corporations' basic obligations, instead of embracing them. >>> >>> >>> >>> >>> >>>> This is why we think that the effort should be on identifying the rules that ARE applicable to Internet protocol parameters (including IP addresses and domain names) and building those into the bylaws through a framework of interpretation. >>>> >>>> The "court" will then be the IRP to make sure that ICANN is abiding by the rules in the bylaws. >>>> >>>> I gather the reluctance to follow this path is a concern that this work will not happen. The Board can do what it can to commit to working with the community to develop the set of rules, assuming we can all reach agreement on what those rules are. >>>> >>>> Regards, >>>> Bruce Tonkin >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community(a)icann.org >>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community

2 1