May 2016 - Accountability-Cross-Community

UPDATED steps for Bylaws drafting
by Bruce Tonkin May 26, 2016

May 26, 2016

Hello All, Here is an update to the process steps for approving the new bylaws. Wednesday 25 May - Staff sends out a summary of all comments and any proposed changes to the draft Bylaws to the community and ICANN Board, 48 hours before the Board's vote. NEW Thursday 26 May at 19:00 UTC - Bylaws Coordination Group call -review the public comments and revised draft bylaws, and confirm if new bylaws are consistent with the final reports 26 May at 21:00 UTC - Board will hold an information call to review comments received since the Board's meeting in Amsterdam, and consider the revised draft bylaws, taking into account the output of the Bylaws Coordination Group call. At the end of this call, Board members will decide whether to proceed with the Board meeting on Friday 27 May at 13:00 UTC - or reschedule. Friday 27 May at 13:00 UTC - Board will hold a formal meeting to vote on the Bylaws, and the Service Level Agreement (SLA) with the Regional Internet Registries (RIRs) for the IANA Numbering Services Regards, Bruce Tonkin

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Re: [CCWG-ACCT] [ianatransition] U.S. Senate Committee on Commerce, Science, and Transportation Full Hearing on 24 May 2016
by Dr Eberhard W Lisse May 26, 2016

May 26, 2016

And you are not done. It does no work if it suits ICANN and if it suits ICANN it does, as in making it up as they go along. Of course the same set of people will answer the same question the same way, without even reading the proposal. el -- Sent from Dr Lisse's iPad mini 4 > On 25 May 2016, at 22:30, Andrew Sullivan <ajs(a)anvilwalrusden.com> wrote: > > Off list, because I think I'm done with this topic. > > On Wed, May 25, 2016 at 09:54:51PM +0100, Dr Eberhard W Lisse wrote: >>> On 25 May 2016, at 21:29, Andrew Sullivan <ajs(a)anvilwalrusden.com> wrote: >> [...] >>>> The transition proposal is simply a proposal to eliminate a function that is unneeded and does no work. >> [...] >> >> Nothing in this is simple, and whether it is unneeded is open for debate. >> >> However when it suits ICANN it alleges that the function does work. > > I didn't say it does not work. I said it does _no_ work, in that > NTIA's approval function does not actually do anything that the > existing technical checks do not already do. > >> The amount of work can not be used as rationale. > > It can't be used as a rationale as to why the proposal ought to be > implemented, but it can certainly be used as part of an argument about > why a hand-wavy alternative seems ridiculous. If you take the same > facts to the same set of people and ask them the same question, there > is no reason to suppose they'll come up with a different answer. > > A > > -- > Andrew Sullivan > ajs(a)anvilwalrusden.com

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U.S. Senate Committee on Commerce, Science, and Transportation Full Hearing on 24 May 2016
by Sivasubramanian M May 25, 2016

May 25, 2016

Halfway through watching the webcast, yet to read the written testimonies in full, this caught my attention: The Heritage Foundation's Brett Shaefer: *A soft extension of the current contract for a reasonable period of time would allow the community and ICANN to take the new mechanisms for a sustained test drive to verify to the Internet community that relies on ICANN that they are working as envisioned. This would not derail the progress made by the ICG or the CCWG because the ICANN board has confirmed that virtually all of the recommended changes, including the new accountability improvements and the EC, would be adopted and implemented whether the transition proceeds or not. It would therefore be prudent to maintain U.S. oversight, or at least a means for reasserting NTIA oversight, for the next two years until the new structure proves itself and the details of Work Stream 2 are fully developed and their implications understood.* The text of Brett Shaefer's 'soft extension' suggestion "*to maintain U.S. oversight, or at least a means for reasserting NTIA oversight"*, does not sound soft enough. Nor was the posture of Steve DelBianco (52:00): ... GAC gets one vote, "but when it comes it challenging decisions that arise out of Government advice, we drew the line ... the US Government role can block Government advice. When the Board of ICANN wants to act on Government advice and the Community wishes to challenge that advice, we can't allow Governments to block our ability to challenge it, we carve them out, we exclude the Governments from having a vote... On Net, we have cabined off the Government power..." That would have impressed the US Senate, but at least a few other Governments wouldn't have liked it. Steve Delbianco's response to Heritage (57:00) was to say that it would be a slap on the face of the Community that has worked so hard, and has produced a proposal is well balanced. "The powers that the community has are extraordinary powers. We would only invoke our powers to block a budget, block a bylaw [change], or spill the Board if the Board acted in a completely inappropriate way" There is no coverage provided by the United States better than the coverage provided by the California courts, community's powers to go to courts in California, to force the Board to follow the Community's Consensus... What we have designed gives the Community, for the first time ever, the power to go to Court in California, to force the Board to follow the Community's consensus, to spill the Board, if that is our Consensus, to overturn the Budget if the Community doesn't support. That is the kind of back-stop we need, and we have it in California courts" Very powerful argument, but what is "Community" in ICANN today? What is the power dynamics? and, What does that transition proposal contain that is enough to offer hope that the Community would be well balanced post-transition? In terms of the Community's powers to go to California court, will the Community have a Reserve for legal expenses, who really gets to decide what issues merit legal action? If there are no Community funds to take any issue to Court, which participants of the Community would fund the lawsuit, and what influences would such participants exercise in the decisions to earmark or escalate an issue for legal action? In a scenario not altogether unlikely, if the "Community" is willing to spend ten times as much as the Board's available legal defense Budget, the Board would be constantly under threat of lawsuits. Even while continuing to be in the California Jurisdiction, the Accountability design requires to be one that would move ICANN governance as farther away from California Courts as possible. Could there be an Accountability design that could take ICANN governance away from lawyers (no disrespect intended) but towards a balanced and inherently just framework? Could there be a "soft enough" or "loose" oversight/observation by the NTIA at least until Workstream 2 and other Accountability processes place together such a self-contained framework for global public interest? In many ways, a soft interim role for the US Government, or a short delay would actually ensure that the transition details are gracefully accepted by the whole world. Sivasubramanian M -- Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy>

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FW: Letter from GNSO Council for Bylaws Coordination Group
by Grace Abuhamad May 25, 2016

May 25, 2016

For your information. From: Grace Abuhamad <grace.abuhamad(a)icann.org> Date: Tuesday 24 May 2016 at 22:12 To: "bylaws-coord(a)icann.org" <bylaws-coord(a)icann.org> Cc: "James M. Bladel" <jbladel(a)godaddy.com>, Marika Konings <marika.konings(a)icann.org> Subject: Fwd: Letter from GNSO Council for Bylaws Coordination Group Forwarding at the request of the GNSO. Begin forwarded message: From: Marika Konings <marika.konings(a)icann.org> Date: May 24, 2016 at 22:10:57 EDT To: Grace Abuhamad <grace.abuhamad(a)icann.org> Cc: "James M. Bladel" <jbladel(a)godaddy.com> Subject: Letter from GNSO Council for Bylaws Coordination Group Dear Bylaws Coordination Group, Please find attached for your consideration a letter from the GNSO Council. Best regards, Marika

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Re: [CCWG-ACCT] U.S. Senate Committee on Commerce, Science, and Transportation Full Hearing on 24 May 2016
by Seun Ojedeji May 24, 2016

May 24, 2016

Hi, If I get your concluding paragraph right, you seem to be calling for the transition to be delayed as well. No? Well what I will say is that delaying it with the mind of putting to test may not necessarily reveal the bugs in the proposal, as the entire proposal was developed on the mindset that NTIA is out of the show! Test can only happen(practically) when the proposal is implemented as proposed (which includes having NTIA hands off). Now do I like what has been proposed and am I worried as well, ofcourse I don't dig the proposal that much and yes i am worried! but that is the best we could get as a community and we should take responsibility of making it work. If it breaks, then we should take the responsibility of fixing it; leaving things with NTIA by maintaining status quo in the hope that they will fix it when it breaks is not a way to go and really would tell a lot about the MS and perhaps provide more justification to some who claims MS doesn't work. The other part of it which is more political is that with the US elections et all, and a possible change of the party in power, a delayed transition could imply a foregone opportunity! By the way, what exactly could go wrong with what has been proposed that cannot be withstand by the shock absorbers built into the proposal and the fact that there is room to improve the process/structure by the community(with all the reviews in place). In any case, if this finally goes down the drain, I will just say that please don't utilise non-paid volunteer resources in such a manner in future! Regards Sent from my LG G4 Kindly excuse brevity and typos On 24 May 2016 9:07 p.m., "Sivasubramanian M" <isolatedn(a)gmail.com> wrote: Halfway through watching the webcast, yet to read the written testimonies in full, this caught my attention: The Heritage Foundation's Brett Shaefer: *A soft extension of the current contract for a reasonable period of time would allow the community and ICANN to take the new mechanisms for a sustained test drive to verify to the Internet community that relies on ICANN that they are working as envisioned. This would not derail the progress made by the ICG or the CCWG because the ICANN board has confirmed that virtually all of the recommended changes, including the new accountability improvements and the EC, would be adopted and implemented whether the transition proceeds or not. It would therefore be prudent to maintain U.S. oversight, or at least a means for reasserting NTIA oversight, for the next two years until the new structure proves itself and the details of Work Stream 2 are fully developed and their implications understood.* The text of Brett Shaefer's 'soft extension' suggestion "*to maintain U.S. oversight, or at least a means for reasserting NTIA oversight"*, does not sound soft enough. Nor was the posture of Steve DelBianco (52:00): ... GAC gets one vote, "but when it comes it challenging decisions that arise out of Government advice, we drew the line ... the US Government role can block Government advice. When the Board of ICANN wants to act on Government advice and the Community wishes to challenge that advice, we can't allow Governments to block our ability to challenge it, we carve them out, we exclude the Governments from having a vote... On Net, we have cabined off the Government power..." That would have impressed the US Senate, but at least a few other Governments wouldn't have liked it. Steve Delbianco's response to Heritage (57:00) was to say that it would be a slap on the face of the Community that has worked so hard, and has produced a proposal is well balanced. "The powers that the community has are extraordinary powers. We would only invoke our powers to block a budget, block a bylaw [change], or spill the Board if the Board acted in a completely inappropriate way" There is no coverage provided by the United States better than the coverage provided by the California courts, community's powers to go to courts in California, to force the Board to follow the Community's Consensus... What we have designed gives the Community, for the first time ever, the power to go to Court in California, to force the Board to follow the Community's consensus, to spill the Board, if that is our Consensus, to overturn the Budget if the Community doesn't support. That is the kind of back-stop we need, and we have it in California courts" Very powerful argument, but what is "Community" in ICANN today? What is the power dynamics? and, What does that transition proposal contain that is enough to offer hope that the Community would be well balanced post-transition? In terms of the Community's powers to go to California court, will the Community have a Reserve for legal expenses, who really gets to decide what issues merit legal action? If there are no Community funds to take any issue to Court, which participants of the Community would fund the lawsuit, and what influences would such participants exercise in the decisions to earmark or escalate an issue for legal action? In a scenario not altogether unlikely, if the "Community" is willing to spend ten times as much as the Board's available legal defense Budget, the Board would be constantly under threat of lawsuits. Even while continuing to be in the California Jurisdiction, the Accountability design requires to be one that would move ICANN governance as farther away from California Courts as possible. Could there be an Accountability design that could take ICANN governance away from lawyers (no disrespect intended) but towards a balanced and inherently just framework? Could there be a "soft enough" or "loose" oversight/observation by the NTIA at least until Workstream 2 and other Accountability processes place together such a self-contained framework for global public interest? In many ways, a soft interim role for the US Government, or a short delay would actually ensure that the transition details are gracefully accepted by the whole world. Sivasubramanian M -- Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [CCWG-ACCT] Agenda for ICANN Board meeting on 27 May 2016
by Alan Greenberg May 23, 2016

May 23, 2016

I had asked if the revised draft after factoring in comments would be available for review prior to Board consideration. I do not believe I received a positive answer. I am glad to hear that you too think it is advisable. I presume that this redline version will also contain other changes (typos, other fixes) noted during the review period (the lawyers have indicated they do have a list of such revisions). Given that, the need for any changes to text which is unchanged from the current draft would need to be pretty onerous to be considered at that time! Alan At 22/05/2016 11:14 AM, Greg Shatan wrote: >The comment period for the draft just closed 15 hours ago. Those >comments (which include the comments of the CCWG) and comments from >counsel need to be duly taken into account and the draft revised >accordingly. This is clearly going to happen on a fast track, but >not quite that fast.... > >I would expect (and request) that the revised draft appear in both >clean and "redlined" form so the changes can be clearly seen and reviewed. > > I expect these changes to be rather constrained. I strongly > recommend that anyone who wants to review the "final" draft should > review the current draft (if they have not done so already) and > then review the limited changes when they're released. Waiting for > the final draft to dig in would not be the most prudent approach. > Of course, everyone has their own work style, and if one wants to > drink from the firehose at the last minute, have fun.... > >Greg > >On Sunday, May 22, 2016, Chartier, Mike S ><<mailto:mike.s.chartier@intel.com>mike.s.chartier(a)intel.com> wrote: >Has the final text that the Board will approve on the 27th been posted yet? > >-----Original Message----- >From: accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] On Behalf >Of Bruce Tonkin >Sent: Saturday, May 21, 2016 1:40 AM >To: accountability-cross-community(a)icann.org >Subject: [CCWG-ACCT] Agenda for ICANN Board meeting on 27 May 2016 > > >From: ><https://www.icann.org/resources/board-material/agenda-2016-05-27-en>https://www.icann.org/resources/board-material/agenda-2016-05-27-en > >Agenda | Special Meeting of the ICANN Board > >27 May 2016 > > >Main Agenda > >* Approval of New ICANN Bylaws for IANA Stewardship Transition > >* AOB > >Published on 20 May 2016 >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org ><https://mm.icann.org/mailman/listinfo/accountability-cross-community>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>https://mm.icann.org/mailman/listinfo/accountability-cross-community > >Content-Type: text/plain; charset="us-ascii" >Content-Transfer-Encoding: 7bit >Content-Disposition: inline >X-Microsoft-Exchange-Diagnostics: > >1;SN1PR0301MB2030;9:xTbXfH5fyPKoP4jLfPpQjLOeitj+/UKVg4sS+uFFzMqh05HmCztgxCNCGbM9cCg6tJLuSos0ijG/A72hJkoJ1AqBlLVDP1C2rlZ4t3m3M1HlYLaBguRM4dWeUiLwXlShDYfDijqSHibNZV2WTDpNI/jDbbFUKEEfJp9Fs/4UkWA5oygdNuV04vZgmAwXAbwn > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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FW: The Irritating Irresolution of ICANN Jurisdiction
by Phil Corwin May 23, 2016

May 23, 2016

As this relates to the discussion of jurisdiction in WS2, I thought I would share it... Subject: FW: The Irritating Irresolution of ICANN Jurisdiction FYI, I have just published a new article that elaborates on what jurisdictional matters concerning ICANN are addressed in the draft revised Bylaws, and what remaining jurisdictional matters remain to be discussed and resolved in Work Stream 2. The link below links to a shorter version of the article, and also provides a link to the full 10,000-plus word version. My analysis concludes with a recommendation that the matter of ICANN's permanent jurisdictional locus should be resolved as soon as possible during Work Stream 2 through adoption of a Fundamental Bylaw requiring ICANN to be a non-profit corporation headquartered in the United States. This would be the best means to assure that ICANN does not become an IGO in the post-transition period, a result that is specifically prohibited by the NTIA's March 2014 criteria for the transition. I hope you find this useful in your own consideration of the transition and accountability proposals, and in preparing for Work Stream 2 discussions. If you have any comments or questions please feel free to contact me. Best regards, Philip http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann… Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7497 / Virus Database: 4568/12262 - Release Date: 05/19/16 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7497 / Virus Database: 4568/12262 - Release Date: 05/19/16

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Next steps for Bylaws drafting
by Bruce Tonkin May 23, 2016

May 23, 2016

Hello All, Here is my current understanding of the process steps towards the Board meeting on 27 May to consider the new bylaws: 25 May - Staff sends out a summary of all comments and any proposed changes to the draft Bylaws to the community and ICANN Board, 48 hours before the Board's vote. Sidley and Adler law firms have already suggested proposed changes to the draft bylaws based on the CCWG on Accountability public comments. ICANN staff are now compiling a summary of all the public comments, and then that can be reviewed with respect to possible amendments to the draft bylaws. 26 May at 21:00 UTC - Board will hold an information call to review comments received since the Board's meeting in Amsterdam, and consider any suggested changes to the draft bylaws 27 May at 13:00 UTC - Board will hold a formal meeting to vote on the Bylaws. If there are any outstanding issues identified from the summary of comments and proposed changes to the draft bylaws provided on 25 May, then the Bylaws Coordination Group will be convened to get guidance. I will separately send this to the CCWG on Accountability mailing list. Regards, Bruce Tonkin

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latest letter from Cruz et al FYI
by Chris Disspain May 23, 2016

May 23, 2016

Cheers, Chris

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Agenda for ICANN Board meeting on 27 May 2016
by Bruce Tonkin May 22, 2016

May 22, 2016

From: https://www.icann.org/resources/board-material/agenda-2016-05-27-en Agenda | Special Meeting of the ICANN Board 27 May 2016 Main Agenda * Approval of New ICANN Bylaws for IANA Stewardship Transition * AOB Published on 20 May 2016

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