January 2016 - Accountability-Cross-Community

CCWG ACCT Agenda - Call #81
by Brenda Brewer Jan. 28, 2016

Jan. 28, 2016

Dear all, In preparation for your call #81 <https://community.icann.org/x/6QJ1Aw> - Thursday, 28 January 2016 - 19:00 - 22:00 UTC (time converter <http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&… ah=3> ), see below a proposed agenda: 1. Welcome, Roll Call & SOI (5 min) 2. Rec 1 - GAC as decisional participant - (30 min) Second reading see - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 3. Rec 10 - SO/AC accountability - (30 min) Second reading see - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 4. Rec 8 - Reconsideration - (20 min) Second reading see - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… BREAK (10 min) 5. Rec 11 - GAC Advice - (60 min) Second reading see - http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… 6. A.O.B (5 min) Link to Adobe Connect: https://icann.adobeconnect.com/accountability/ Thank you. Kind regards, Brenda

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Rec 9-AOC reviews - 2nd reading conclusions and Rec 11-GAC Advice -First reading conclusions
by Brenda Brewer Jan. 27, 2016

Jan. 27, 2016

Sent on behalf of CoChairs In preparation for CCWG ACCT Meeting #81 on 28 January, please find attached the documents for Recommendation 9 - AOC Reviews and Recommendation 11 - GAC Advice. Best regards, Mathieu, Thomas, Leon

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Re: [CCWG-ACCT] Open ALAC Issues
by Alan Greenberg Jan. 27, 2016

Jan. 27, 2016

I REALLY did not meant to open any wounds or start a long thread. At yesterday's meeting, I said I would send a message listing the open issues for the ALAC. One of them was that we noticed that there was a reference to the members of the UA comprising the Empowered Community being representatives of the SO/ACs (exactly as we have been saying for ages), but felt that it needed an additional sentence saying that each would need to be duly selected by their respective organizations. If the CCWG feels that the elaboration is not needed, fine. But we called it out because we thought it should be looked at. Period. There was no intent to re-open any issues or rethink how this overall empowerment was being structured. Alan At 27/01/2016 04:07 PM, Jordan Carter wrote: >I apologise for my overenthusiastic rush to >completely agree with Chris - the part I thought >was completely right is that this issue has been resolved satisfactorily. > >Greg, your explanation is as ever lucid, clear, >and comprehensive (but not excessive). > >:-) > >Jordan > >On 28 January 2016 at 10:05, Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com> wrote: >I don't think Chris is quite right, though he's >close. We are not heading back to anything. A >basic premise of the Third Draft Proposal is >that there will be a legal entity -- an >unincorporated association that will be the tool >by which the community exercises the Community >Powers after a decision is made to do so by the participating SO/ACs. > >But individuals will not themselves provide >legal personhood -- that is accomplished through >the unincorporated association (the Empowered >Community/Single Designator Entity (ECSDE) (or >GOLEM, if you prefer that acronym)). > >I suppose there is one open question, which is >the process by which the unincorporated >association is set up, and whether any legal or >natural persons need to be involved in that. I >believe it is clear that a SO/AC can be a >decisional entity without having any legal or >natural persons involved in setting up the >unincorporated association/ECSDE/GOLEM entity. > >Greg > >On Wed, Jan 27, 2016 at 3:36 PM, Jordan Carter ><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz> wrote: >Chris is completely right. The UA doesn't make >decisions - it acts only on the instructions of >the SOs and ACs. It has to have one or two >humans (or entities) as members to exist, but >they won't have the decision rights. > >I am sure that the lawyers can point to their >memos that set this all out in depth. It was >discussed in great detail in the middle of 2015, and resolved.... > > >bests >Jordan > > >On 28 January 2016 at 09:25, Chris Disspain ><<mailto:ceo@auda.org.au>ceo(a)auda.org.au> wrote: >Hello All, > >I thought the basis of the model was that either >each so/ac would appoint a person to be the >legal persons or a small number of nominated >individuals (2 was discussed I think) would >provide the required legal personhood but would >not be empowered to do anything without >instruction from the so/acs. We now seem to be >heading back to a requirement that so/acs for >lead entities in some way which is challenging for some to say the least! > >Could we please get clarity on where we are at with this? > > >Cheers, > > >Chris > >>On 28 Jan 2016, at 05:16 , Nigel Roberts >><<mailto:nigel@channelisles.net>nigel(a)channelisles.net> wrote: >> >>I don't mean to be pedantic about this, but are >>the SOs and ACs also going to be constituted as UAs??? >> >>Otherwise, I see an issue -- surely to form the >>EC as a UA, the members of the UA need to be >>persons (whether natural or legal matters not). >> >>So it seems to me that all the SOs and ACs need to have legal personality. >> >>Or will the members of the EC just be the >>Chairs of the SOs and ACs in a personal capacity?? >> >> >> >> >>On 27/01/16 18:11, Gregory, Holly wrote: >>>We agree that the language that ALAC points to (reproduced directly >>>below) could be clarified: >>> >>>â 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.â >>> >>>The notion is that some persons are needed to ensure that the decisions >>>of the Empowered Community are implemented. While the participating SOs >>>and ACs will be members of the unincorporated association, each >>>participating SO and AC should have a representative , and for >>>simplicity we recommend that in each instance it be the chair of the AC >>>or SO. We have addressed this notion in our memo about implementation >>>of the unincorporated association, which we circulated a link to last >>>week in our high level comments regarding the IRP. >>> >>>HOLLY J. GREGORY >>>Partner and Co-Chair >>>Global Corporate Governance & Executive Compensation Practice >>> >>>*Sidley Austin LLP** >>>*<tel:%2B1%20212%20839%205853>+1 212 839 5853 >>><mailto:holly.gregory@sidley.com>holly.gregory(a)sidley.com >>><mailto:holly.gregory@sidley.com> >>> >>>*From:*<mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >>>[<mailto:accountability-cross-community-bounces@icann.org>mailto:accountability-cross-community-bounces@icann.org] >>>*On Behalf Of >>>*Seun Ojedeji >>>*Sent:* Wednesday, January 27, 2016 9:47 AM >>>*To:* Kavouss Arasteh >>>*Cc:* >>><mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org >>>*Subject:* Re: [CCWG-ACCT] Open ALAC Issues >>> >>>Well even if we don't need it now. It will be good to recognise that >>>it's yet to be discussed. However considering that the UA is required >>>once board approves the proposal then it may be good to determine and >>>conclude on this soon enough. >>> >>>That said, it may be good to be sure that those member representatives >>>have no power to act unilaterally. I would have thought using 1 stone to >>>kill to birds will be good i.e making the various chairs/leaders of >>>SO/AC to serve is such capacity. That gives some level of responsibility >>>and security on that various SO/AC can always boot out their leader >>>whenever required. >>> >>>Regards >>> >>>On 27 Jan 2016 15:02, "Kavouss Arasteh" >>><<mailto:kavouss.arasteh@gmail.com>kavouss.arasteh(a)gmail.com >>><mailto:kavouss.arasteh@gmail.com>> wrote: >>> >>>Dear All, >>> >>>I think people contuinue to go to the last milimiter of the road and >>>generate a new discussion and debate about the number of reprÃ©sentatives >>>in Unincorprated associattion reprÃ©sentatives and start a new round of >>>bebates and dispute >>> >>>Do we need this information now pls ? >>> >>>Kavouss >>> >>>2016-01-27 6:14 GMT+01:00 Alan Greenberg >>><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca >>><mailto:alan.greenberg@mcgill.ca>>: >>> >>>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. >>> >>> >>> >>> >>> >>>_______________________________________________ >>>Accountability-Cross-Community mailing list >>><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >>><mailto:Accountability-Cross-Community@icann.org> >>><https://mm.icann.org/mailman/listinfo/accountability-cross-community>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 >>><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >>><mailto:Accountability-Cross-Community@icann.org> >>><https://mm.icann.org/mailman/listinfo/accountability-cross-community>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>><https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> >>> >>>**************************************************************************************************** >>>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. >>> >>>**************************************************************************************************** >>> >>> >>> >>>_______________________________________________ >>>Accountability-Cross-Community mailing list >>><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >>>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >>https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > >-- >Jordan Carter > >Chief Executive >InternetNZ > ><tel:%2B64-4-495-2118>+64-4-495-2118 (office) | ><tel:%2B64-21-442-649>+64-21-442-649 (mob) >Email: <mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >Skype: jordancarter >Web: <http://www.internetnz.nz>www.internetnz.nz > >A better world through a better Internet > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > >-- >Jordan Carter > >Chief Executive >InternetNZ > >+64-4-495-2118 (office) | +64-21-442-649 (mob) >Email: <mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >Skype: jordancarter >Web: <http://www.internetnz.nz>www.internetnz.nz > >A better world through a better Internet > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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CCWG - Recommendation 3 - Final draft for CCWG comments
by Bernard Turcotte Jan. 27, 2016

Jan. 27, 2016

All, The CCWG comment period on recommendation 3 is now closed and no comments were received. However staff has noted that the Right of Investigation was not included in the list of elements to become Fundamental Bylaws in paragraphs 1 and 18. This is not considered a significant change given Recommendation 1 does list the Right of Investigation as a Fundamental Bylaw. As such this amendment has been made and the attached version is considered final. Given there were no significant 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). A red-lined version showing these amendments, as well as a clean version are attached for you convenience. Thank you. Bernard Turcotte ICANN Staff Support for CCWG On Mon, Jan 25, 2016 at 10:49 AM, Bernard Turcotte < turcotte.bernard(a)gmail.com> wrote: > > Per the request of the co-chairs we are publishing the final draft > version of Annex 3 for comments by the CCWG. > > This version is the version produced by legal counsel with the additional > edit of correcting 8 powers to 7 powers. > > 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 Monday 25 January > and will close at 18:00 UTC Wednesday 27 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 3 - 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/1YNvRyLsJ4EYXv83-Munrva6mgWW-bsGDmph… > > > > > Thank You. > > > Bernard Turcotte > ICANN Staff Support for CCWG > > >

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Regarding mission statement and human rights
by Bruce Tonkin Jan. 27, 2016

Jan. 27, 2016

Hello All, Of the various issues raised in the Board comments on the 3d draft, the two areas that still remain of great concern to the Board are the proposed new mission statement and the proposed new human rights bylaw. About half of the Board members were on the most recent CCWG call, so we will take the comments made by CCWG members on that call into account as well as notes posted to the CCWG list. The Board is meeting in Singapore next week, and the plan is to provide some further input on these two topics and in particular to provide a detailed rationale for any new comments on those topics. Regards, Bruce Tonkin

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Re: [CCWG-ACCT] Open ALAC Issues
by Alan Greenberg Jan. 27, 2016

Jan. 27, 2016

This was not meant to start a debate. It was one of the issues raised in the ALAC comments and I said I would list the open ones. I di not think it needs debate, just perhaps an aditional sentence added in the proposal. Alan At 27/01/2016 09:02 AM, Kavouss Arasteh wrote: >Dear All, >I think people contuinue to go to the last >milimiter of the road and generate a new >discussion and debate about the number of >reprÃ©sentatives in Unincorprated >associattion reprÃ©sentatives and start a new round of bebates and dispute >Do we need this information now pls ? >Kavouss > >2016-01-27 6:14 GMT+01:00 Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca>: >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. > > > > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community >

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Re: [CCWG-ACCT] Open ALAC Issues
by Alan Greenberg Jan. 27, 2016

Jan. 27, 2016

Seun, we went over this at great length many months ago. Once a representative is named, they do have the power to act on behalf of the AC/SO. It is up to the AC/SO to put process in place to limit and/or control it. If I were to abuse my position as ALAC Chair, I would expect the ALAC to take action and this is no different. Alan At 27/01/2016 09:46 AM, Seun Ojedeji wrote: >Well even if we don't need it now. It will be >good to recognise that it's yet to be discussed. >However considering that the UA is required once >board approves the proposal then it may be good >to determine and conclude on this soon enough. > >That said, it may be good to be sure that those >member representatives have no power to act >unilaterally. I would have thought using 1 stone >to kill to birds will be good i.e making the >various chairs/leaders of SO/AC to serve is such >capacity. That gives some level of >responsibility and security on that various >SO/AC can always boot out their leader whenever required. > >Regards >On 27 Jan 2016 15:02, "Kavouss Arasteh" ><<mailto:kavouss.arasteh@gmail.com>kavouss.arasteh(a)gmail.com> wrote: >Dear All, >I think people contuinue to go to the last >milimiter of the road and generate a new >discussion and debate about the number of >reprÃ©sentatives in Unincorprated >associattion reprÃ©sentatives and start a new round of bebates and dispute >Do we need this information now pls ? >Kavouss > >2016-01-27 6:14 GMT+01:00 Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca>: >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. > > > > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Notes-Recordings-Transcript link for CCWG ACCT Meeting #80 - 26 January
by Brenda Brewer Jan. 27, 2016

Jan. 27, 2016

Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #80 - 26 January will be available here: https://community.icann.org/x/5wJ1Aw 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) TR Jordan Carter, Cheryl Langdon-Orr, Kavouss Arasteh and Seun Ojedeji audio only. Have returned to original agenda order. 2. Update on Chartering Organizations' input (20 min) MW <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… MW: gNSO and GAC have provided their input on the third draft proposal. There are no formal objections in these comments. There are qualified supports and conditions which are consistent with the minority views expressed in the third draft as well as the comments in the consultation. Will not address recommendations that are generally agreed to. Rec. 1 - No decision from the GAC yet - gNSO some objections regarding the balance of SO and ACs and a requirement for additional transparency. Rec 2 ok Rec 3 - gNSO clarify process to update articles of inc. Rec 4 - gNSO fix escalation time frames and indemnification for removing a director Rec. 5 - no interference with GAC being able to provide advice to ICANN Board + contract enforcement - Cont. Enf. required by gNSO. Rec 6 - nothing from GAC, gNSO some support for WS2. Rec 7 , 8 ok rec 9 gNSO - Limited support with some opposition and potentially divergent qualifications - reviews in collaboration with SO ACs (GAC, gNSO), GAC responsible to the citizens of their countries. Rec 10 - Limited support with some opposition Rec 11 - no consensus or objection from the GAC. gNSO there is broad opposition as currently written. Rec 12 - GAC requires clear time frame. We should write to all CO's to thank them for their input and support and inform them of next steps. AGreenberg - will be documenting the 5 specifics of the current ALAC positions and posting on list. MW: No other updates - closes this item 3. Update on Board removal liability mitigation (20 min) TR RoemaryFei - update from lawyers discussion - Board still strongly opposes waivers. CCWG lawyers will provide language to CCWG for consideration on this. Idemnification - some support by Board would support for language in the rationale subject to limitations. Jones Day will draft this language. AGreenberg - Indemnification of rationale only is too limited - what about the community forum. Who is being indemnified - individuals or councils? RosemaryFei - Good point - tying it to the rationale would cover that language made by anyone. Other language is not covered. Chris Disspain: Alan, perhaps you could say what you think it should cover? Chris Disspain: content AGreenberg - A real wide ranging discussion in the community forum will cover many topics beyond the rationale, as such this is overly limited. Chris Disspain: so if it covered the community forum discussion and the rationale? Chris Disspain: would that be OK Agreenberg - Probably if it covers councils. GShatan - Sympathetic to AG, Need to limit it by subject matter. Rationale and items related to presenting it should be ok. Want to avoid the chilling effect. AGreenberg - not just slander, TR - What was presented as being offered by the Board seems insufficient. What is needed is compromise language that captures those eligible as well as subject as discussed in the comments. We would need such language from Jones Day by the end of the week (confirmed by SE). If the compromise language does not meet the requirements of the COs then we would need to proceed with what is required by the COs. TR - this closes this topic. 4. Rec 6 - Human Rights - Third reading (45 min) MW Short set of slides of the state of play <https://community.icann.org/pages/viewpage.action?pageId=58000103> https://community.icann.org/pages/viewpage.action?pageId=58000103 Trying to address all concerns the CCWG counsel has proposed language to attempt to avoid the unintended consequences. We would like to test today if this proposed language would address the concerns and still be acceptable. Comments? TTropina - supports text as a middle solution. MKummer - Board has had a thorough discussion on this. I can only repeat what I said last time. We are committed to have HR in ICANN but have not moved from the comments on third draft - wait for WS2 to complete the framework before inclusion in the Bylaws. Understand the concerns wrt it not advancing in WS2. Willing to include in the Bylaws a requirement in <http://bylaws.to/> bylaws.to do work on HR. Chris Disspain: the key words from what Markus said: Board proposes that including in the Bylaws a requirement for ICANN to address the human rights issue, as well as a requirement to consider - after a framework is concluded - how that should be referenced in the Bylaws. The Board therefore proposes the following: In the Bylaws text referencing WS2, language should be included that specifically identifies that a recommended framework on human rights within ICANN is expected to be part of the WS2 effort. Further, the Bylaws on WS2 should specify that If the cross-community group developing the framework also makes a consensus recommendation on whether and how that framework can be reflected in the ICANN Bylaws, the ICANN Board must consider that recommendation according to the process defined for considering those continuous improvement recommendations MW - There has been significant work to try and address the Board issues - but unclear on what remains objectionable? MKummer - the crux is the Board does not accept there be a ref. to HR before documenting what these are without incurring additional risk. MW - Difficult to understand what Board concern has not been addressed with the proposed CCWG text. NTenOever - this is not a compromise and ignores work of the community. TTropina - current CCWG makes sense. Agreenberg - should the CCWG go ahead there are some comments. Need examples from the Board as to what the possible risks are. MW - This has been asked for and never provided. Language will be checked by lawyers for other points raised by AG. KArastaeh - need to accept resolution as is or Board's new proposal. CDispain - (repeated Board position) LUrech (GAC - Switzerland) - supports maintaining this recommendation. We see no risk or unintended consequences. Not approving this would also send a very negative message in the overall community. GShatan- Remarks from the Board actually confirm that the proposed text is truly a compromise. No one is happy with this - is a good sign that we have reached the compromise. MW - The direction of discussion is clear. Much discomfort from the Board but that is it. The CCWG text seems to be the consensus position. If the Board comes up with a bylaw statement that convinces the community on its merit it could be included otherwise we should move with the current language. HGregory - We have heard the Board concerns and addressed them. Have been trying to understand the concerns of the Board since then but are struggling as there have been no concrete examples. MW - Action item is for staff and lawyers to move to finalizing recommendation consistent with proposal discussed and comments expressed during the session -(Alan). No further discussion planned unless, as suggested by Kavouss, the Board would come back with a concrete action or resolution that would convince the group to proceed otherwise. MW - Item closed. 5. Rec 5 - Mission Statement - Fourth reading (45 min) MW <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… & <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… * * AOC language * Root servers and numbers language * Contract enforcement * Grandfathering * where feasible and appropriate language BBurr - presentation of updated Recommendation document: * * ALAC request on WHERE FEASIBLE AND APPROPRIATE. There were two mentions of these in the original document, both were removed and one added back after Dublin. * Awaiting Board input on RSSAC language for the mission. * Lively discussion on ASO language. Their latest submission to be discussed today. Issue around regulation vs ICANN. Vast majority of commenters in third draft were supportive. Board suggested that this was not appropriate for a mission and should be moved to notes for drafters. CCWG counsel supported. * Enforcement PICs * CCWG legal raised number of questions regarding grandfathering? ALAC request on WHERE FEASIBLE AND APPROPRIATE. Agreed to reinsert in core value 2 but not in 4. ALAC continues to argue for its re-introduction. KArasteh - Need to answer if feasible and appropriate. Agreenberg - Are simply requesting what was there stay there. The example in the RSTEP process - are there competitive issues with this change. We evaluate this. Without this clause we may not be able to ask the question. Need this to be a proper custodian of the namespace. KAresteah - We cannot grandfather elements which we do not have. BBurr - pointing to RSTEP process points to the FACT that ICANN cannot make any determination on competition - if there are concerns they are referred to the appropriate govts. This is not an issue. However, any language in the Bylaws the authority does not rely on market is an issue. AGreenberg - Agrees with the words of BB - but this is not what is written. GShatan - language promotes a laisser-faire approach - let the market do its thing. This is one way to look at this. We are confusing a competitive environment and an anti-trust environment. SBacholet - alternate options in line with AG BBurr - ICANN does not have the authority or tools/skillset. 10 minute break SDelBianco - does this say the market can be depended on to manage this or does it give ICANN the right to interfere into fixing it. GShatan - does not give ICANN carte blanche- the market gets first crack, if the market fails then ICANN could interfere. Conclusion - TR - since there is an objection from a chartering org. on this - let us try to get closer to a compromise on the list which we will consider the next time we consider this point. ASO Language BBurr - issues about referencing the MOU. Izumi has proposed alternate language today. There are essentially two different constructions IOkutani - explanation of proposed text Bruce Tonkin: Changes make sense Izumi. I have sent to the Board list. Chris Disspain: Board needs to look at this wording and comment asap Conclusion - TR - given there are no objections let us assume that IO proposed language is the new reference text. Grandfathering BBurr - Grandfathering language - Issue - can contracts with PICS in them be renewed without change - can new contracts contain PICs going forward. Are there any objections to making Pics renewable and new agreements can include these. Agreenberg - supports continuing PICs and including in the not yet signed. GShatan - object but not on the basis that they should be renewed - it is unclear they would go away. We are confusing the issue. Grandfathering is cheating, CDispain - Board has concerns about grandfathering. Also want to make certain we retain the power to contract and enforce which includes current PICs. Becky Burr: Chris that is already in the language. Grandfathering language says FOR THE AVOIDANCE OF DOUBT to drafters. This should apply to all TLDs from this current round. MHutty - We are not changing ICANN's mission, simply clarifying it. Some of the concerns are that it signed some PICs which are not within in mission and so could be challenged with the new version. Grandfathering would fix this to avoid disruption of the environment. Conclusion - TR - we are close to a compromise - we will ask BB to update the document taking into account the discussions today and refine this on the list so this can be finalized on the next call Greg Shatan: How about this; "To the extent that PICs may be out of scope, those PICs are grandfathered in. MHutty - want to preserve the APPROVAL queue. Contract Enforcement BBurr - Contract enforcement - There is general agreement that ICANN has the power to enter into contracts and enforce these in the service of its mission. The ICANN Board objects to the Regulator language - and the Board proposed that this language moved to the drafting notes to be taken into account/Guidance to drafters of the final Bylaws. MHutty - Guidance to do what in the Board proposal? GShatan - What is the weight between our draft Bylaws language and the Notes to drafting. If they are = then there is no isssue with the Board recommendation. If there is a difference, then there is an issue. We should clarify if there is a difference. TR - our recommendations are clear instructions to drafters. Additionally, we have an implementation oversight team to ensure we are meeting the objectives. We may work more on what we are trying to express here but this may also be done in instructions to drafters. TR - this closes this agenda item. 6. Rec 9 - AOC reviews - Second reading (15 min) SDB <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… & <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0… SDB - Two questions from our lawyers - Re requirement to better define diversity. Recommend no change to current. Next question same. recommendation on participation. RAbdulRahim - Board supports incorporating AOC in Bylaws. Discussion of operational standards vs inclusion in Bylaws. (see email by BTonkin for details): Board Comment - Recommendation 9: As noted in its comments on the third draft proposal, the Board supports the incorporation of the AOC reviews into the Bylaws, while noting the importance of maintaining operational standards for reviews outside of the Bylaws. While the Board agrees that operational standards should be in alignment with the provisions of the Bylaws, the Board views operational standards as a more suitable place to address multiple review-related operational items that do not belong in the Bylaws. There are a few specific areas that the Board is flagging in relation to the operational standards - a) The Board is concerned about potential constrains that may limit flexibility and effectiveness in the operational standards and that certain CCWG-Accountability recommendations may not be aligned with best practices or industry standards, including: * Fixed numbers of total review team members, as well as a fixed allocation among SO/ACs, without consideration of specific issues and required expertise for a given review. * Unlimited number of participants, in addition to the appointed review team members, potentially affecting the team's productivity. * Exact trigger points for the commencement of reviews without taking into account the Community bandwidth, or the state of pending implementation activities. b) To accommodate differing needs of reviews, the Board recommends leaving the number of review team members to the selectors of a specific review team, as to prescribing a specific formula for composition. This could leave to the selectors the flexibility, for example, to include more members from a specific SO or AC that is more impacted by a specific review, without hardcoding numbers into the Bylaws that might need to be changed later. c) The Board is concerned with the CCWG-Accountability's recommendations on determinations of how consensus is applied. Imposing Bylaws requirements on allowing participants and observers, or requiring consensus calls are other examples where trying to hardcode specific requirements for reviews now might actually develop reviews that are less efficient, more resource intensive, and detract from the responsibilities of the review teams. The Board notes that the ICANN community would benefit from a review schedule that would take into consideration community bandwidth and ICANN resources in developing a staggered or phased review schedule. These factors should determine what a workable number of concurrent reviews would be and ensure that no more than that number of reviews are scheduled at the same time. Finally, the Board would like to highlight the work that has been underway within ICANN towards improving review effectiveness so that the CCWG and the community may factor this work in the development of operational standards. Work has been underway on the development of Operational Standards since last year, originating from ATRT2 recommendation 11 to improve effectiveness of Reviews together with Board Resolution 2015.07.28.14. In July 2015, after factoring public comments, the Board endorsed the proposed process and operational improvements designed to simplify and increase the effectiveness of Reviews. The Organizational Effectiveness Board Committee is currently working to finalize Policies, Procedures and Guidelines for the Organizational Reviews mandated by the Bylaws. Conclusion - TR - RAR the CCWG will consider this Board input and we will reply to it. (SDB) there is no objection to your suggestions, please include in the next draft.TR - this closes this item. 7. Timeline & next steps (15 min) MW <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20… andnextsteps-0001.pdf> http://mm.icann.org/pipermail/accountability-cross-community/attachments/20… ndnextsteps-0001.pdf Pilot test for reviewing recommendation by recommendation seems to working well. Can we get confirmation that we can keep using this process? Conclusion - MW - we will continue with this process. This concludes this item. 8. A.O.B (15 min) MW None Meeting Adjourned.

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Lawyer's High Level Review re Mission (Recommendation 5) Slides
by Gregory, Holly Jan. 27, 2016

Jan. 27, 2016

Dear CCWG ACCT Co-Chairs, Members, Participants and ICANN Staff, We are writing to provide our very high level reactions to the slides on Mission (Recommendation 5) that were forwarded to us today by ICANN staff. (For ease of reference we have attached a copy of the slides that we have reviewed today.) We have 2 primary concerns or caveats that we raise now primarily to help make sure that expectations about what can be resolved in the drafting stage are realistic. 1) A common challenge in drafting Bylaws is determining what matters to try and nail down with exactitude and when to rely on general principles for interpretation in light of specific context by a reviewing body and the opportunity to revise the Bylaws further in the future if additional clarification is needed. We understand that the CCWG expects that the Bylaws drafters will be able to devise language that precisely, comprehensively, and unambiguously defines ICANN’s mission in a manner that reconciles the CCWG’s disparate views on content regulation versus contract enforceability, involuntary versus voluntary PICs, consumer trust and other matters of debate, leaving little if any room for misunderstanding. We think this expectation is not realistic. Based on our observation of the CCWG’s discussions, even if the CCWG is eventually able to agree on the line between what is in and outside ICANN’s mission conceptually, we do not believe drafting to that level of precision is possible. Anything we draft will, inevitably, leave room for conflicting interpretations due to the nature of language; the more we provide detailed rules and examples to reduce the areas requiring interpretation, the longer, more cumbersome, and less user-friendly the text will become. Ironically, efforts to address issues in greater detail may even create more opportunities for misinterpretation and loopholes. For clients facing similar dilemmas, a common approach is to draft general principles into governing documents and provide a mechanism for interpreting them in specific situations. We recommend that the CCWG agree upon and articulate mission principles at a general level appropriate for inclusion in the Bylaws, understanding that refinement and interpretation will be needed thereafter. If a party is materially affected by an ICANN determination that a PIC is outside (or within) the scope of ICANN’s mission, that party may challenge, via an IRP, the decision on the basis that ICANN has acted inconsistently with its Bylaws. The IRP panel’s decision will inform how the Bylaws are interpreted from that point onward. If the community disagrees with the IRP panel’s decision, it can further amend the mission through the Fundamental Bylaws amendment procedure; the community could also develop a mechanism other than the IRP specifically to review mission compliance of proposed PICs, if desired. 2) We note that, while the CCWG has accepted the concept of grandfathering some PICs, it has not yet clearly defined what it means by “grandfathering” PICs. We will need answers to the following questions in order to draft appropriate Bylaws: a) What is the effective cut-off date for the grandfathering? This could be a specified date in the future, or could be an event, such as the date of adoption of the relevant Fundamental Bylaw. b) Should RAs that are in the process of being put in place but have not yet been finalized and signed as of the effective date, be included or excluded? If that should depend on how far along in the process they are, what should be the standard for deciding that point? c) Should renewals of existing RAs, unchanged, that contain PICs covered by the grandfathering clause, be included? If so, should there be a limit on the number of renewals that will be covered? Should grandfathering cover PICs that are not modified, even though other provisions of the agreement are changed? d) What if an existing RA/RAA includes a grandfathered PIC, and the agreement is modified, by mutual agreement or otherwise -- is it still grandfathered? e) Should all grandfathering have a sunset date, i.e., a point far enough in the future on which all grandfathering protection will expire? We look forward to addressing these high-level issues with you and the CCWG in whatever manner is deemed most appropriate. We also have a question regarding the following language on Slide 2 of the deck: “ GAC/ALAC – seeks legal opinion on (i) constraints on Board’s ability to act on GAC advice and (ii) continuing ability to impose and enforce PICs and other “negotiated” registry provisions” We believe that we have already provided our response to (i). We do not recall that (ii) has been certified to us. We ask that the Co-Chairs and Staff please confirm. One other minor point: We note that on Slide 9 of the deck, the word “mission” has been replaced with “scope” in proposed Bylaw language. We think that “purpose” is a better word to use in this context. Once the content of the Mission Slides is incorporated into the relevant Recommendation and Annex we will review again for more detailed suggestions. 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> From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Monday, January 18, 2016 2:02 PM To: Gregory, Holly; acct-staff(a)icann.org Cc: thomas(a)rickert.net; León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN(a)adlercolvin.com; Grapsas, Rebecca Subject: RE: AGENDA - Call #78 Dear Holly, Despite the two previous discussions, we are I’m afraid not yet at the point of having a draft on this one. Your high level comments on the 3rd report might be useful however. Maybe that could help us make progress on this complex issue. De : Gregory, Holly [mailto:holly.gregory@sidley.com] Envoyé : lundi 18 janvier 2016 17:12 À : acct-staff(a)icann.org<mailto:acct-staff@icann.org> Cc : mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>; thomas(a)rickert.net<mailto:thomas@rickert.net>; León Felipe Sánchez Ambía; Sidley ICANN CCWG; ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com>; Grapsas, Rebecca Objet : AGENDA - Call #78 For the third reading of Recommendation 5, Annex 5,- Mission Statement - we are having difficulty finding the draft we are to review. Any assistance in providing us with the correct draft for review is greatly appreciated. Holly HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> ________________________________ From: accountability-cross-community-bounces(a)icann.orgOn<mailto:accountability-cross-community-bounces@icann.orgOn> Behalf OfAlice Jansen Sent: Friday, January 15, 2016 9:36:37 AM (UTC-08:00) Pacific Time (US & Canada) To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] AGENDA - Call #78 Dear all, In anticipation of your call #78 – Tuesday, 19 January 2016 - 12:00-15:00 UTC - (time converter<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_wor…>), please find below a proposed agenda: 1. Welcome, roll call, SoI (2 min) 2. Rec 7 – Scope of IRP- Second reading (20 min) - Note: Becky will be sending the first reading conclusions document 3. Rec 6 – Human Rights – Second reading (30 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_…> 4. Rec 4 – Board removal liability mitigation – Third reading (10 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_…> 5. Rec 9 – AOC reviews (30 min) - First reading – see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_…> Break (10 min) 6. Rec 5 – Mission Statement (45 min) - Third reading - Note: Becky will be sending an update 7. Rec 11 – GAC Advice – First reading (45 min) - see http://mm.icann.org/pipermail/accountability-cross-community/2016-January/0…<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_…> 8. A.O.B (3 min) As a reminder, all documents can be found on the wiki at: https://community.icann.org/display/acctcrosscomm/Final+Report<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di…> Link to Adobe Connect: https://icann.adobeconnect.com/accountability<https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com…>/ Thanks Best regards Alice **************************************************************************************************** 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. ****************************************************************************************************

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ICANN Board comments on Recommendation 6
by Bruce Tonkin Jan. 27, 2016

Jan. 27, 2016

Hello All, Markus gave a verbal summary of the current position of the Board following our Board call yesterday during the CCWG call. I have set out the current position in writing below. I recognize that the CCWG members did not accept the Board's position. There are quite a few Board members on the call - and we can take this discussion back to the Board to see if we can find another solution. (1) The Board is committed to upholding human rights as appropriate within ICANN's mission; and (2) The Board intends to work alongside the community to progress the human rights work within ICANN, including through the development of a Human Rights Statement to reach a meaningful framework to guide human rights considerations within ICANN's mission. The Board still remains supportive of Option B, or allowing the WS2 effort on defining a framework to proceed prior to considering whether to include a human rights obligation in the Bylaws. The Board understands that one of the reasons for the suggestion of a "dormant" bylaw text (which the Board remains concerned about for the reasons flagged earlier) is that there is concern among the community that if a reference to human rights is not included in the Bylaws, the Board will not follow through on a community wish to address this issue. To address this concern, the Board proposes that including in the Bylaws a requirement for ICANN to address the human rights issue, as well as a requirement to consider - after a framework is concluded - how that should be referenced in the Bylaws. The Board therefore proposes the following: In the Bylaws text referencing WS2, language should be included that specifically identifies that a recommended framework on human rights within ICANN is expected to be part of the WS2 effort. Further, the Bylaws on WS2 should specify that If the cross-community group developing the framework also makes a consensus recommendation on whether and how that framework can be reflected in the ICANN Bylaws, the ICANN Board must consider that recommendation according to the process defined for considering those continuous improvement recommendations. Regards, Bruce Tonkin ICANN Board liaison to the CCWG

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