January 2016 - Accountability-Cross-Community

Notes-Recordings-Transcript link for CCWG ACCT Meeting #81 - 28 January
by Brenda Brewer Jan. 28, 2016

Jan. 28, 2016

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #81 28 January will be available here: https://community.icann.org/x/6QJ1Aw 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. 1. Welcome, Roll Call & SOI (5 min) LS On audio only: Seun Ojedeji, Barrack Otieno No updated SOI. 2. Rec 1 GAC as decisional participant (30 min) Second reading TR <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… TR - First conclusion was that the GAC could be included as a decisional participant. RGross - NCSG objects and is going against the basic structural arrangements which created ICANN - grave mistake. BSchaefer - Not really a second reading because last time this was discussed. GAC still has not decided if it will. Thresholds would be affected if GAC does not join or if they cannot decide how to vote if they do join. Should have GAC as an advisory member to the empowered community. KAresteh - We have to allow the GAC to decide if the wish to participate. How would we handle the EC handling an issue which directly affects the GAC. This is the second reading. OCavalli - The GAC must have the right to decide if they want to participate. PIvoSilva - The GAC has not objected to this. The GAC will decide and has the right to participate if it so wishes. SBachollet - this is a new arrangement and should include the GAC. Alan Greenberg: @Robin, and GNSO is no longer developing and recommending policy, but taking on a VERY different role. Decision - TR - There are no new objections. It will be possible for RG and others to add minority statements in the final report. As such we should confirm that the conclusion of the second reading is that the GAC can be a decisional participant in the EC if it so decides. 3. Rec 10 SO/AC accountability - (30 min) Second reading LS <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… LS - SOAC accountability should be handled in WS2. AGreenberg - include in current Bylaws revisions. LS - reviews vs GAC ? KArasteh - GAC representatives have a special responsibility as representatives of their govts. LS - this could be discussed in WS2. TRickert - GAC is evolving. Suggesting that GAC proposes review processes as to how the GAC is accountable for how it interacts with the community but not about how the GAC works internally. FBadii - Are we amending article 4 of section 4? LSanchez - this will update that Bylaw. OCavalli - Thanks TR for his proposal. CDispain - Board generally supportive - The SOAC reviews are independent. FBadii - Object to 4,4 as a great mistake, please reconsider. LS - We should proceed as proposed and include some reference to the possibility of some type of GAC accountability reviews. SDelBianco - The ATRT currently reviews the effectiveness of GAC interaction with the Board. We could a minor review which would include the interaction of the GAC with all the community vs only the Board. Decision - LS - Good suggestion. Any objections.? (none). Way forward is to make the amendment to 44 and include the suggested language to ATRT (SDB). Any other objections to WS2 plan? (none). This concludes this item. 4. Rec 8 Reconsideration (20 min) Second reading TR <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… Decision - TR - Second reading, any new arguments vs the consensus? the issues noted should be handled in implementation. Any further discussion? (none) - Recommendation approved as it. 5. Rec 11 GAC Advice (60 min) Second reading TR <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… TR - SDB can you do a recap of where are and the 6 discussion points. Discussion 1 - No change in voting requirements. PIvoSilva - no new requirement. SDelBianco - this is a response to IPC that the recommendation was creating new obligations. This was verified with our lawyers - and we are simply confirming that there are no changes. GShatan - Just confirming we are continuing as is. TR - Any objections (None). we will ask again after all questions. Discussion 2 - Rationale requirement was too weak - this has been strengthened for all ACs and it is the Board that decides if it is adequate. TR - important to note - this is for all ACs. KArasteh - what happens if the Board decides the rationale is not acceptable. SDelBianco - The Board if it rejects the rationale and request revisions and clarification which is not required to be a formal process. TR - interesting discussion in chat: Bruce Tonkin: One of the struggles in our ICANN format is that the Board meets with the GAC early n the ICANN week. The GAC uses that discussions to develop their communique. The challenge is that the Board doesn't generally have an opportunity to meet with the GAC and seek clarifications. There are some process improvements that could be made there. Jonathan Zuck: unclear and unconvincing are two different things Bruce Tonkin: I would love to have statements from ACs before the Board meetins with them at a public meeting. In some cases that might mean there are two separate meetings. - Sabine Meyer 2: Bruce, so you would like to meet the GAC after the communiqué is published? Bruce Tonkin: Good point @Jonathan! Often ICANN people assume that their arguments are convincing so the recipient can't be listening - so speak louder, restate the same position etc. I think we are all a bit guilty of that. Bruce Tonkin: Yes @Sabine - I think that would be a way to have more constructive discussions on some topics. Kavouss Arasteh: tHAT IS A POSITIVE STEP OCavalli - Similar concerns for 1 and 2. TR - we are making good progress. KArasteh - clarification is good. Decision - TR - seems to be consensus - any objections? (none). Discussion 3 - Decisions on GAC advice by Board need to be consistent with the Bylaws. TR discussion? MHutty - Support. GShatan - Supports. Decision - TR - seems to be consensus - any objections? (none). Discussion 4 - addressing lawyer comments received over the weekend. SDelBianco - Discussion 4.1 - Duly taken into account - this is in no way changed in the current proposal. So there is no need for change and not accept the suggestion. SDelBianco -all other comments are useful clarifications but there is no need to make any changes. TR any objections to proceeding like this? KArasteh - supports Decision - TR - no objections - approach is accepted. Discussion 5 - 2/3rds Board Threshold to reject GAc advice. History of this point. KArasteh - The only GAC support for this recommendation is based on 2/3rds. AGreenberg - Supports PRosensweig - Granting greater power to GAC and goes against NTIA requirements - If we go forward with this we put the entire transition at risk. TRickert - We are not changing the relative balance of power. GShatan - It is change and do not support. MWeill - clarification of CCWG meeting 70 (American Thanksgiving). MHutty - against. OCavalli - This is important for the GAC and was supported by consensus in the GAC. RGross - Against. Significant empowerment of govts.Puts the entire transition at risk. KDrazek - The GNSO has voting rules and procedures. The approval or rejection of the CCWG proposal (or portions thereof) will require a simple majority of EACH house (non-contracted and contracted). Neither GNSO house currently supports the addition of 2/3. That said, the amendments made in response to the RySG comments are welcomed by the RySG, but they may not be sufficient to sway other groups. It's not clear to me that the GAC will reach consensus on Recommendation 11 however it ends up on 2/3. PIvoSilva - PDPs can be rejected by 2/3rds - so it would just create a level playing field. 10-minute Break >From chat: Keith Drazek: Following up the earlier comment on GNSO PDP advice thresholds, there are several important distinctions: one key part of that threshold for the GNSO is that the Board only has to show any deference to the GNSO IF AND ONLY IF that advice come through a formal PDP. This means not all GNSO resolutions (call it advice) gets the Board deference even if the vote of the GNSO Council is unanimous. In addition, the GNSO may only issue a formal PDP under certain restrictions in both scope and jurisdiction. Not every topic can be properly considered in scope for a GNSO PDP. In fact, as part of every issue report in the GNSO PDP process, the General Counsel is asked to opine as to whether the proposed issue is properly within the jurisdiction of the GNSO. If it is not, that does not prevent the PDP from continuing, but arguably, the increased Board threshold would not apply in such a case. JCancio - this was a community compromise. Both the gNSO and the GAC are unhappy with it. Supports. TRickert No consensus we will move to the next discussion point. Discussion 6 - Original ST18 recommendation PRosenzweig - Support. How are we going to resolve this? TRickert will propose a way forward after the comments on this point. BSchaefer - Assumes this includes para 5 from the Bylaws and object to the example as it contravenes what is proposed here. SDelBianco Disagree with BS as per discussion 5 or 6. KArasteh - 6 is not an alternative to 5. Do these address ST 18. SDelBianco - both do. OCavalli - similar to KA. Decision - TRickert - this ends discussion on rec. 11. We have consensus on items 1 to 4. We do not on 5 or 6. We will poll on those issues at the next meeting given we see no alternative. We would ask that members try and be present at the next CCWG meeting next week for the polling. We would encourage participants to continue seeking a compromise position before the next meeting. 6 AOB MW MW - Any other items to be discussed? (none). Next call is February 2nd @ 06:00 UTC. Call adjourned.

1 0

Board comments on Rec 11
by Chris Disspain Jan. 28, 2016

Jan. 28, 2016

Here are the current Board comments on Recommendation 11 (GAC Advice): The Board provides the following comments on Recommendation #11: 1. The Board supports the consensus text included in the Third Draft proposal on the acceptance of GAC advice. 2. The Board understands that this recommendation was not intended to impose any new requirements for the Board to take decisions on GAC advice, and that this issue can be addressed in the Bylaws drafting notes by indicating that the Board should not be obligated to act on all GAC advice through a vote. 3. The Board supports that ACs should be required to provide rationale to accompany advice. The Board understands the CCWG recommendation to place an obligation on the Board, when taking a decision on a piece of advice, to consider whether the Board found the rationale sufficient. The Board would always be in a position to indicate if additional information is needed prior to completing consideration of any piece of advice. The Board does not consider this recommendation to impose a requirement that the Board must provide a specific determination for each piece of advice received regarding whether the Board felt the rationale was sufficient, and urges the CCWG to clarify for Bylaws drafting that the Board is not required to make a determination on whether every piece of formal advice has adequate rationale. 4. The Board agrees with the CCWG-Accountability’s clarification that, if the Board takes action inconsistent with the Bylaws – even if that action is based upon following the advice of an AC – the Board can be subject to an IRP. To the extent that the CCWG believes that it is important to specifically identify this in the Bylaws, the text used should apply to all Advisory Committees, and not solely refer to the GAC. Cheers, Chris

2 1

FW: gTLD Auctions vs Travel Costs
by Grace Abuhamad Jan. 28, 2016

Jan. 28, 2016

Forwarding on behalf of Marika Konings. From: Marika Konings <marika.konings(a)icann.org> Date: Thursday, January 28, 2016 at 1:49 PM To: "James M. Bladel" <jbladel(a)godaddy.com>, Greg Shatan <gregshatanipc(a)gmail.com>, Andrew Sullivan <ajs(a)anvilwalrusden.com> Cc: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] gTLD Auctions vs Travel Costs Please note that the updated discussion paper which factors in the input received as a result of the public comment forum can be found here: New gTLD Auction Proceeds Update <http://gnso.icann.org/en/drafts/new-gtld-auction-proceeds-07dec15-en.pdf> . Best regards, Marika From: <accountability-cross-community-bounces(a)icann.org> on behalf of "James M. Bladel" <jbladel(a)godaddy.com> Date: Thursday 28 January 2016 at 12:40 To: Greg Shatan <gregshatanipc(a)gmail.com>, Andrew Sullivan <ajs(a)anvilwalrusden.com> Cc: "accountability-cross-community(a)icann.org" <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] gTLD Auctions vs Travel Costs To clarify: the CWG itself has not yet been convened. It¹s only the Drafting Team is that is starting up. Thanks J. From: <accountability-cross-community-bounces(a)icann.org> on behalf of Greg Shatan <gregshatanipc(a)gmail.com> Date: Thursday, January 28, 2016 at 12:35 To: Andrew Sullivan <ajs(a)anvilwalrusden.com> Cc: "accountability-cross-community(a)icann.org" <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] gTLD Auctions vs Travel Costs Andrew, There was a discussion paper posted for public comment before Dublin, with comments ended November 8. https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-e n Subsequent to that, SO/AC chairs were invited on January 6 to propose members of the charter Drafting Team that James Bladel mentioned. Like you, I can't find evidence of this (other than having seen a copy of the email referred to above), but I expect that will change once the DT actually gets underway. Greg On Thu, Jan 28, 2016 at 12:53 PM, Andrew Sullivan <ajs(a)anvilwalrusden.com> wrote: > On Thu, Jan 28, 2016 at 12:28:48PM -0500, Avri Doria wrote: >> > At the very least, I believe they are holding these funds in a separate >> > account, or something like that, until the Board decides what it want s >> > to do. Hard to know for sure. > > There was a session about this in BA: > > https://community.icann.org/display/gnsocouncilmeetings/Pre-CWG+Workshop+on… > w+gTLD+Auction+Proceeds > > I am unable to find evidence that the relevant CWG has in fact been > started, but I can never find anything on the ICANN website, so that's > no guide as to whether it's happened. > > A > > -- > Andrew Sullivan > ajs(a)anvilwalrusden.com > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

2 1

Re: [CCWG-ACCT] gTLD Auctions vs Travel Costs
by Nigel Roberts Jan. 28, 2016

Jan. 28, 2016

"Under what law does this money belong to ICANN ..." On 28/01/16 16:51, Kathryn Kleiman wrote: > $41 million for .SHOP. That's a nice chunk of change! > I think this money, however, does not go into the ICANN budget (FWIW). > Best, > K > > -----Original Message----- > From: Dr Eberhard W Lisse [mailto:el@lisse.NA] > Sent: Thursday, January 28, 2016 4:48 AM > To: accountability-cross-community(a)icann.org > Cc: directors(a)omadhina.net > Subject: gTLD Auctions vs Travel Costs > > Not that I want to have any more travel, but I am sure ICANN can afford the transition costs: > > https://gtldresult.icann.org/application-result/applicationstatus/auctionre… > > So far 105510127 USD :-)-O > > el >

5 7

CCWG Calendar invite for February meetings updates
by Brenda Brewer Jan. 28, 2016

Jan. 28, 2016

Hello all, As an FYI, I am resending the CCWG meeting invites for 2nd and 9th of February. There seems to be a glitch for some with invites sent earlier today. Please accept my apologies for the extra emails, but I want your information to be accurate. Kind regards, Brenda

1 0

From Holly Gregory & Rosemary Fei - Lawyers' Comments on Annexes 8, 9, 10 and 11
by Grapsas, Rebecca Jan. 28, 2016

Jan. 28, 2016

From Holly Gregory and Rosemary Fei: Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff, Attached please find comments from Sidley and Adler on the First Reading Conclusions Drafts of Annexes 8 (Reconsideration), 9 (AoC Reviews), 10 (SO/AC Accountability) and 11 (GAC Advice). For your convenience, in addition to our comments we have attached the drafts that we are commenting on. Please note that while we are providing detailed comments on the Annexes on a rolling basis, we should have the opportunity to review the entire draft of the CCWG Proposal in full when it is in closer to final form. 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 0

Open ALAC Issues
by Alan Greenberg Jan. 28, 2016

Jan. 28, 2016

As per my comment in the CCWG meeting earlier today, here is a list of the issues still to be resolved from the ALAC statement on the 3rd Draft Proposal. There are three issues currently under discussion. 1. ICANN Mission and ensuring that contract provisions will not be invalidated or be unenforceable. 2. The issue regarding market mechanisms. 3. Human Rights (original issue resolved but pending final wording). Issues to be addressed. 1. The first is a relatively trivial one and easily addressed. Rec# 4, in the section on replacing the Interim Board states: "SOs, ACs, and the Nominating Committee will develop replacement processes that ensure the Interim Board will not be in place for more than 120 days." The ALAC request that this be changed to: "SOs, ACs, and the Nominating Committee will develop processes designed to replace Interim Board members within 120 days." By removing the word "ensure", this change, while not altering the intent, goes along with the recent practice of not putting hard deadlines in the Bylaws, deadlines that for one reason or another may not be met in a particular instance. 2. Rec# 10, AoC. The Recommendation suggests that as part of organizational reviews, the AC/SO's accountability be included in the review. The ALAC suggests that this be enshrined in Article IV, Section 4.1 of the ICANN Bylaws. 3. On page 14, item 2 of the draft proposal (and on page 5 of Annex 1), it says "The members of the unincorporated association would be representatives of ICANN's Supporting Organizations and Advisory Committees that wish to participate." We have never discussed how such members are identified. Presumably we should to specify that each participating AC/SO must identify who it's representative will be.

10 15

Re: [CCWG-ACCT] Market Mechanisms and Competition
by Olivier MJ Crepin-Leblond Jan. 28, 2016

Jan. 28, 2016

Dear all, I am totally in agreement with Alan's points and would add that this is a position of the ALAC ad-hoc working group on IANA stewardship transition and ICANN accountability. Kind regards, Olivier Crépin-Leblond Chair of the aforementioned working group Sent from Samsung Mobile <div>-------- Original message --------</div><div>From: Tijani BEN JEMAA <tijani.benjemaa(a)benjemaa.com> </div><div>Date:28/01/2016 11:44 (GMT+00:00) </div><div>To: Alan Greenberg <alan.greenberg(a)mcgill.ca> </div><div>Cc: CCWG ACCT <accountability-cross-community(a)icann.org> </div><div>Subject: Re: [CCWG-ACCT] Market Mechanisms and Competition </div><div> </div>+++1 ----------------------------------------------------------------------------- Tijani BEN JEMAA Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 27 janv. 2016 à 16:11, Alan Greenberg <alan.greenberg(a)mcgill.ca> a écrit : Upon a bit of investigation following yesterday's discussion, I am even more convinced that we must give ICANN the latitude allowed by the phrase "where feasible and and appropriate". Moreover, I am no longer sure that the addition of "as identified through the bottom-up, multistakeholder policy development process" in core value 6 (now 5) is appropriate. There are a number of reasons: 1. It became clear that we have multiple definitions and interpretations of "market mechanisms". And it would seem that in the minds of some, actions that ICANN takes, as in introducing new gTLDs, are "market mechanisms" themselves and thus allowed. So some actions of ICANN in this area are proper market mechanism and allowed. Some actions would be deemed to be interfering with external-to-ICANN market mechanisms and forbidden. But we cannot use judgement to decide which is which. It is supposed to be intuitively obvious. It is not to me. 2. Depending on your definition of market mechanisms and to what extent ICANN is part of those mechanisms, Core value 4 and Core value 5 (new numbering) may well be in conflict with each other. 3. The open market may be sufficient for ensuring competition in the developed world, but it has proven insufficient on parts of the developing world. ICANN's African and Latin American and Caribbean Strategies have been praised for their efforts to strengthen (and in fact create) a vibrant DNS industry in their respective territories. ICANN has invested heavily in this and it is bearing fruit. Do we really want to send a message that this is not allowed? And can we really claim that these efforts are as the result of the multistakeholder policy development process? They certainly are the result of a multistakeholder process but not "policy development" in the sense of our Supporting Organizations (which is the only sense that this expression is used in our Bylaws). https://www.icann.org/news/blog/the-dns-entrepreneurial-center-for-the-midd… provides an recent example. 4. With the understanding that we are not an arbitrator of issues that fall under the domain of national regulatory laws (and I would support explicitly saying that), ICANN does have an interest and concern about competition, and this is shown in our including it as an issue in considering and approving new registry services (via the RSEP). Without discretion, we may not even be allowed to ask about it or perform an initial evaluation on the response. It may be clear to some that the existence of "where feasible and appropriate" in core value 4 and the omission of "as identified through the bottom-up, multistakeholder policy development process" in core value 5 have resulted in heinous crimes (yes, I know I am exaggerating), but I am not aware of them. And I believe that our recent enlightenment on ICANN's responsibility to support the development of the DNS industry in less advantaged parts of the world might not have been possible under the proposed restricted core values. As a result, I do not see what current problem we are fixing, and I do not like the implications of the changes on our ability to be a good custodian of the domain name space and to support less developed economies in benefiting from the Internet as many of us in the west and north have. Alan _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

2 1

Market Mechanisms and Competition
by Alan Greenberg Jan. 28, 2016

Jan. 28, 2016

Upon a bit of investigation following yesterday's discussion, I am even more convinced that we must give ICANN the latitude allowed by the phrase "where feasible and and appropriate". Moreover, I am no longer sure that the addition of "as identified through the bottom-up, multistakeholder policy development process" in core value 6 (now 5) is appropriate. There are a number of reasons: 1. It became clear that we have multiple definitions and interpretations of "market mechanisms". And it would seem that in the minds of some, actions that ICANN takes, as in introducing new gTLDs, are "market mechanisms" themselves and thus allowed. So some actions of ICANN in this area are proper market mechanism and allowed. Some actions would be deemed to be interfering with external-to-ICANN market mechanisms and forbidden. But we cannot use judgement to decide which is which. It is supposed to be intuitively obvious. It is not to me. 2. Depending on your definition of market mechanisms and to what extent ICANN is part of those mechanisms, Core value 4 and Core value 5 (new numbering) may well be in conflict with each other. 3. The open market may be sufficient for ensuring competition in the developed world, but it has proven insufficient on parts of the developing world. ICANN's African and Latin American and Caribbean Strategies have been praised for their efforts to strengthen (and in fact create) a vibrant DNS industry in their respective territories. ICANN has invested heavily in this and it is bearing fruit. Do we really want to send a message that this is not allowed? And can we really claim that these efforts are as the result of the multistakeholder policy development process? They certainly are the result of a multistakeholder process but not "policy development" in the sense of our Supporting Organizations (which is the only sense that this expression is used in our Bylaws). https://www.icann.org/news/blog/the-dns-entrepreneurial-center-for-the-midd… provides an recent example. 4. With the understanding that we are not an arbitrator of issues that fall under the domain of national regulatory laws (and I would support explicitly saying that), ICANN does have an interest and concern about competition, and this is shown in our including it as an issue in considering and approving new registry services (via the RSEP). Without discretion, we may not even be allowed to ask about it or perform an initial evaluation on the response. It may be clear to some that the existence of "where feasible and appropriate" in core value 4 and the omission of "as identified through the bottom-up, multistakeholder policy development process" in core value 5 have resulted in heinous crimes (yes, I know I am exaggerating), but I am not aware of them. And I believe that our recent enlightenment on ICANN's responsibility to support the development of the DNS industry in less advantaged parts of the world might not have been possible under the proposed restricted core values. As a result, I do not see what current problem we are fixing, and I do not like the implications of the changes on our ability to be a good custodian of the domain name space and to support less developed economies in benefiting from the Internet as many of us in the west and north have. Alan

3 2

gTLD Auctions vs Travel Costs
by Dr Eberhard W Lisse Jan. 28, 2016

Jan. 28, 2016

Not that I want to have any more travel, but I am sure ICANN can afford the transition costs: https://gtldresult.icann.org/application-result/applicationstatus/auctionre… So far 105510127 USD :-)-O el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

1 0