May 2016 - Accountability-Cross-Community

Draft ICANN Bylaws Draft of April 20, 2016: CCWG=Accountability and CWG-Stewardship Certifications
by Gregory, Holly May 13, 2016

May 13, 2016

CCWG Accountability April 20, 2016 Dear CCWG-Accountability Co-Chairs, Members, Participants and Staff, We have reviewed the Proposed Draft ICANN Bylaws, dated April 20, 2016 (“Proposed Draft Bylaws”), a copy of which is attached. We believe that the Proposed Draft Bylaws are consistent with the Cross Community Working Group on Enhancing ICANN Accountability (“CCWG-Accountability”) Supplemental Final Proposal on Work Stream 1 Recommendations (23 February 2016) relating to the IANA Stewardship Transition. Accordingly, we recommend that the Proposed Draft Bylaws be posted to the community for review. Kind regards, Holly J. Gregory and Rosemary E. Fei Sidley Austin LLP and Adler & Colvin CWG-Stewardship April 20, 2016 Dear CWG Co-Chairs, Members, Participants and Staff, We have reviewed the Proposed Draft ICANN Bylaws, dated April 20, 2016 (“Proposed Draft Bylaws”), a copy of which is attached. We believe that the Proposed Draft Bylaws are consistent with the Cross Community Working Group on Naming Related Functions (“CWG-Stewardship”) Final Proposal (11 June 2015) relating to the IANA Stewardship Transition. Accordingly, we recommend that the Proposed Draft Bylaws be posted to the community for review. Kind regards, Holly J. Gregory and Sharon R. Flanagan Sidley Austin LLP HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [SIDLEY] **************************************************************************************************** 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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CCWG-Accountability - V2.0 of comments on draft Bylaws - 24 hour Final Feedback by CCWG-Accountability
by Bernard Turcotte May 13, 2016

May 13, 2016

All, Please find attached V2.0 of the CCWG-Accountability comments to be submitted to the ICANN public consultation on the New Bylaws. Modifications since V1.0 was circulated (There is no red-line comparison as too many things have changed. Rather we are providing a high level summary of changes here and are providing both versions V1.0 and 2.0 for ease of comparison): - V1.0 items 9 and 10 have been removed following consideration of legal counsel advice. - 9. Draft Bylaws Annex D Section 1.4(b) - 10. Draft Bylaws Annex D Section 2.2 (c) (i) (A) - V2.0 new item 9 is - Draft Bylaws Section 1.2(b)(viii) which was in the initial comments but not included in V1.0 - V2.0 new items 10 to 14. These are a selection by the leadership from the list of issues submitted by Alan Greenberg this past weekend - 10. Draft Bylaws Section 7.12 (b) - 11. Draft Bylaws Section 4.6(b)(ii) - 12. Draft Bylaws Section 7.4(d) - 13. Draft Bylaws Section 7.11(a)(i)(B) - 14. Draft Bylaws Annex D, Section 1.4(b)(i-ii) - V2.0 New - Conclusion - short recap of Introduction The Final Feedback period is only intended to provide the CCWG-Accountability participants the opportunity to confirm there are no significant issues or gaps in this version and is not intended as an opportunity to raise new issues. The Feedback period will begin 20:00UTC today Wednesday May 11th and close 20:00UTC Thursday May 12th. Please reply to the list using the Subject line of this message to facilitate identifying your input (or simply REPLY to this email). The objective of the leadership is to finalize these and submit them before the weekend. Documents attached. Bernard Turcotte ICANN Staff Support for the CCWG-Accountability Co-Chairs - Mathieu Weill, Thomas Rickert, Leon Sanchez

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FW: CCWG-Accountability - V2.0 of comments on draft Bylaws - 24 hour Final Feedback by CCWG-Accountability
by Rosemary E. Fei May 12, 2016

May 12, 2016

My apologies if you're getting this twice; I couldn't tell what list the reply I just sent actually went to. Rosemary From: Rosemary E. Fei Sent: Thursday, May 12, 2016 10:25 AM To: CCWG-Listserv Cc: ICANN-Adler; Sidley ICANN CCWG (sidleyicannccwg(a)sidley.com) Subject: RE: [CCWG-ACCT] CCWG-Accountability - V2.0 of comments on draft Bylaws - 24 hour Final Feedback by CCWG-Accountability Dear All: As CCWG's legal counsel, we have no legal concerns if the CCWG prefers not to protect the existing Plans from challenge for exceeding ICANN's Mission, but I did want to clarify that, as drafted, ONLY the current versions of the Plans are so protected; NO renewals or future Plans, nor any amendments to the existing Plans, would have such protection under the language currently in the Draft Bylaws. Our understanding was that these existing Plans are already in place and in operation, and had received appropriate community input when they were developed before the new Bylaws apply, so that grandfathering them eliminated a source of potential harmful disruption without any clear corresponding benefit, from the transition. We viewed this as an implementation issue. However, as I said above, if the CCWG prefers not to preclude challenges to the EXISTING Plans (and ONLY to the currently-existing Plans), we are happy to implement that change if so directed. Rosemary ________________________________ From: accountability-cross-community-bounces(a)icann.orgOn<mailto:accountability-cross-community-bounces@icann.orgOn> Behalf OfAndrew Sullivan Sent: Wednesday, May 11, 2016 12:10:54 PM (UTC-08:00) Pacific Time (US & Canada) To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] CCWG-Accountability - V2.0 of comments on draft Bylaws - 24 hour Final Feedback by CCWG-Accountability Hi, I note this does not ask that 1.1(d)(ii) E not be removed. I think that's the 5 year plans. How come that's ok to be grandfathered? Note that it's not the 5 year plans that exist now, but the ones to be adopted. I don't think the CCWG or CWG asked to grandfather those any more than they did the various outside agreements. I heartily agree with the point in the comments that "the implementation phase is not a time to incorporate new provisions that were not in the CCWG-Accountability Recommendations," and I think this is another example of it. Best regards, A On Wed, May 11, 2016 at 02:53:37PM -0400, Bernard Turcotte wrote: > All, > > Please find attached V2.0 of the CCWG-Accountability comments to be > submitted to the ICANN public consultation on the New Bylaws. > > Modifications since V1.0 was circulated (There is no red-line comparison as > too many things have changed. Rather we are providing a high level summary > of changes here and are providing both versions V1.0 and 2.0 for ease of > comparison): > > > - V1.0 items 9 and 10 have been removed following consideration of legal > counsel advice. > - 9. Draft Bylaws Annex D Section 1.4(b) > - 10. Draft Bylaws Annex D Section 2.2 (c) (i) (A) > - V2.0 new item 9 is - Draft Bylaws Section 1.2(b)(viii) which was > in the initial comments but not included in V1.0 > - V2.0 new items 10 to 14. These are a selection by the leadership from > the list of issues submitted by Alan Greenberg this past weekend > - 10. Draft Bylaws Section 7.12 (b) > - 11. Draft Bylaws Section 4.6(b)(ii) > - > > 12. Draft Bylaws Section 7.4(d) > - > > 13. Draft Bylaws Section 7.11(a)(i)(B) > - > > 14. Draft Bylaws Annex D, Section 1.4(b)(i-ii) > - V2.0 New - Conclusion - short recap of Introduction > > The Final Feedback period is only intended to provide the > CCWG-Accountability participants the opportunity to confirm there are no > significant issues or gaps in this version and is not intended as an > opportunity to raise new issues. > > The Feedback period will begin 20:00UTC today Wednesday May 11th and close > 20:00UTC Thursday May 12th. > > Please reply to the list using the Subject line of this message to > facilitate identifying your input (or simply REPLY to this email). > > The objective of the leadership is to finalize these and submit them before > the weekend. > > Documents attached. > > Bernard Turcotte > ICANN Staff Support for the CCWG-Accountability Co-Chairs - Mathieu Weill, > Thomas Rickert, Leon Sanchez > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> -- Andrew Sullivan ajs(a)anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>

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[blog] IANA Stewardship Transition Planning Update (Volume 2)
by Hillary Jett May 10, 2016

May 10, 2016

Original link: https://www.icann.org/news/blog/iana-stewardship-transition-planning-update… IANA Stewardship Transition Planning Update (Volume 2) Previous update (27 April 2016) Root Zone Management The Root Zone Management implementation planning track contains projects relating to changes to the Root Zone Management System (RZMS) to remove NTIA's authorization role, parallel testing of the production and parallel test RZMS systems; and the development, and execution of an agreement with Verisign as the root zone maintainer. Root Zone Management System (RZMS) Parallel Testing Status update: It has been one month since the start of the parallel testing period and everything continues to go smoothly. Click here to view Verisign’s daily Parallel Operations Root Zone Management System Comparison Reports of all the root zone files generated. In addition to Verisign’s daily reports, ICANN has posted the first of three Monthly Reports on RZMS Parallel Testing Progress during the testing period. The report is available on ICANN’s dedicated Parallel Testing landing page. In the event that no unexplained differences in root zone files are identified between the production RZMS and the parallel test RZMS, the testing period will end successfully on 5 July 2016. Documents/announcements posted: Monthly Report on RZMS Parallel Testing Progress Verisign’s daily Parallel Operations Root Zone Management System Comparison Reports Mailing list: None. Root Zone Maintainer Agreement (RZMA) Status update: Discussions between ICANN and Verisign to finalize details of the RZMA are continuing. The two parties have coalesced around many key elements of the agreement and hope to have a final draft by the end of the month. Once the draft RZMA is finalized it will be made publicly available on icann.org. Documents/announcements posted: None. Mailing list(s): None. Stewardship Transition The Stewardship Transition planning track contains projects to prepare relationship documentation with the operational communities, creation of a Post-Transition IANA (PTI) entity, establishment of a Customer Standing Committee (CSC) and a Root Zone Evolution Review Committee (RZERC), operationalizing the IANA customer service escalation mechanisms and Service Level Agreements (SLAs). Post-Transition IANA (PTI) Status update: ICANN has been working with the Implementation Oversight Task Force (IOTF) on various activities relating to the PTI. Summaries of PTI formation documents (Bylaws, articles of incorporation) as well as the conflict of interest policy have been shared with the IOTF. ICANN continues to work with the IOTF to finalize the process and timing of review for these documents as well as for the ICANN-PTI contracts. Documents/announcements posted this week: None. Mailing list(s): http://mm.icann.org/pipermail/iotf/ http://mm.icann.org/pipermail/cwg-client/ Customer Standing Committee (CSC) Status update: In the CWG-Stewardship proposal, the Domain Names community recommended that a CSC be formed to replace NTIA’s role as it relates to monitoring performance of the IANA naming function. The composition of the CSC will include members and liaisons from all ICANN Supporting Organizations(SOs) and Advisory Committees (ACs). A Request for Appointment is expected to be sent to SOs and ACs this month to appoint members and liaisons to the CSC using their internal processes. Documents/announcements posted this week: None. Mailing list(s): http://mm.icann.org/pipermail/iotf/ Root Zone Evolution Review Committee (RZERC) Status update: The RZERC Charter (v4) was circulated to the CWG-Stewardship on 4 May 2016. The CWG-Stewardship will discuss the Charter on their 12 May 2016 call, and members and participants of the group are encouraged to provide any comment by 23:59 UTC on 17 May 2016. Following analysis and incorporation of any input received from the CWG-Stewardship, ICANN will post the Charter for a 30-day public comment period. Documents/announcements: Root Zone Evolution Review Committee (RZERC) Charter (v4) Mailing list(s): http://mm.icann.org/pipermail/cwg-stewardship/ http://mm.icann.org/pipermail/iotf/ Accountability Enhancements The Accountability Enhancements track contains plans to implement enhancements to ICANN’s Independent Review and Reconsideration Request processes, to update ICANN’s governance documents, and to operationalize new community powers defined by the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability). ICANN's Bylaws Status update: ICANN and the community are in the middle of a 30-day public comment period on the new draft ICANNBylaws. Any interested party can submit comments to the public comment forum until 23:59 UTC on 21 May 2016. Public Comment Page Submit Comment to Forum Comments Forum Adoption of the new Bylaws by the ICANN Board is anticipated for on or around 27 May 2016. Once new ICANN Bylaws have been adopted, ICANN will notify NTIA so they can complete their anticipated 90-day review of the IANA Stewardship Transition Proposal. Documents/announcements: Draft New ICANN Bylaws Comparison of Draft New ICANN Bylaws to Current Bylaws Mailing list(s): http://mm.icann.org/pipermail/bylaws-coord/ http://mm.icann.org/pipermail/accountability-cross-community/ http://mm.icann.org/pipermail/cwg-stewardship/ http://mm.ianacg.org/pipermail/internal-cg_ianacg.org/

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CCWG submission
by Thomas Rickert May 10, 2016

May 10, 2016

Dear colleagues, this is just to let you know that the submission of the CCWG comment will be delayed due to the number of comments we received from the group. Also, please note that no new items shall be introduced on the list as we seek to finalize the comment asap. Having said that you are certainly free to submit additional points to the public comment forum. Thank you and kind regards, León, Mathieu and Thomas

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CCWG-Accountability - Draft Response to Public Consultation on New Bylaws - 72 hour consultation for the CCWG-Accountability
by Bernard Turcotte May 9, 2016

May 9, 2016

All, As discussed on the call this week please find attached the draft response of the CCWG-Accountability to the public consultation on the new Bylaws. This document was developed from the meeting notes of our call on May 3rd and reviewed by the leadership team. As discussed at that meeting we are providing the CCWG-Accountability a 72 hour comment period on this draft response beginning 1800UTC Friday May 6th and closing 1800UTC Monday May 9th. Please post your comments to the main CCWG-Accountability list, used to send this email, and please use the same SUBJECT to facilitate tracking of comments (or simply REPLY to this email). Thank you Bernard Turcotte ICANN Staff Support for the CCWG-Accountability Co-Chairs

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Draft Bylaw comments
by Alan Greenberg May 9, 2016

May 9, 2016

Following a not quite comprehensive review of the Draft Bylaws, focusing on the areas where I had the most involvement and/or concern, I have drafted a number of comments. If there are any sections where other who have reviewed the Bylaws can tell me I have mis-read anything, please let me know. Alan ======================== Section 4.3(k)(ii) "In the event that a Standing Panel is not in place when an IRP Panel must be convened for a given proceeding or is in place but does not have capacity due to other IRP commitments or the requisite diversity of skill and experience needed for a particular IRP proceeding, the Claimant and ICANN shall each select a qualified panelist from outside the Standing Panel and the two panelists selected by the parties shall select the third panelist. I would suggest that first "Shall" should be "may". It is possible if the issue is capacity, diversity of skill or experience, there may be some panelists that qualify, even if there are not three. ========== Section 4.6(b)(ii) "The issues that the review team may assess are the following" does not properly implement CCWG Annex 9, paragraph 84 "Issues that may merit attention in this review include:". The original AoC mandated the list that follows. Paragraph 84 did not require that an ATRT address them all, but also allowed an ATRT to address other issues not listed. The Bylaw language is prescriptive and limits the topics. ========== Section 4.6(e)(v) During the CCWG discussions on the interval between reviews, the issue of ICANN immediately being in default on the WHOIS/RDS review was never raised. Moreover, since those discussions were held, the GNSO new RDS PDPWG has been convened and is well underway. It is reasonably clear that the people in the volunteer community who would likely participate in an RDS review significantly overlap with those who are heavily involved in the RDS PDP. To schedule an RDS Review soon after the Bylaws are enacted would be serious error and will only serve to slow the work of the PDP - a PDP that even now may go on for quite some time. It is clear that there is work that needs to be done that would fall under the auspices of a full blown PDP. We need a good picture of how the various current WHOIS/RDS efforts mesh together. We need to assess how the recommendations of the first WHOIS review are being implemented and their impact, as well as other WHOIS/RDS related activities unrelated to that last AoC review. But these efforts, as important as they are, do not need to be done by a full-blown AoC-like review. Most of the work can be done by staff. To the extent that "staff cannot be trusted" (something that I question, but will address), I am others in the community will gladly act as a sounding block and review their work. [For the record, I was the person on the ATRT2 who did the full analysis of the WHOIS RT Recommendation implementation, so I have some idea of what I am talking about.] The Bylaws for the organizations review all have explicit time limits in them, but also have the words "if feasible". That was true even when the organization review interval was (foolishly) three years instead of the five years it was quickly changed to. "If feasible" allowed the Board to save an immense amount of wasted community expense and ICANN dollars. We need some wriggle room in the current case as well. I strongly suggest that the draft Bylaws be revised to allow additional flexibility to defer the RDS review until there is a real RDS to review, and would even suggest that once implemented, they soon after be amended to add the missing "if feasible". ========== Section 6.1(g)(iv) "how the Decisional Participant determines whether an issue subject to a petition has been resolved," In all of the other Roman Numeral phrases, there are specific processes to design or rules to write. This one is out of place. In any given case, the process to decide whether the issue has gone away will depend on exactly what that issue was. There does not seem to be a way to write that generic process in any way that will prove useful when the need to "determine" arises. I suggest that this section be deleted. ========== Section 6.2(a)(v) "Articles" should be "Articles of Incorporation" (Articles alone would refer to any of the 27 Articles within the Bylaws). ========== Section 7.4(d) "No person who serves on the EC Administration while serving in that capacity shall be considered for nomination or designated to the Board, nor serve simultaneously on the EC Administration and as a Director or Liaison to the Board." This seems both problematic and uncalled for, and I do not believe is based on anything in the CCWG proposal. There is a more reasonable restriction in 7.4 (b) that says someone serving on the Board cannot occupy other positions. But in this case, the EC Administration (the AC/SO Chairs or other delegates) can only act on instructions they are given. To restrict them from being considered means that they cannot even submit a confidential application to the NomCom, a restriction that is placed on no one in ICANN except those actually sitting on the current NomCom. ========== Section 7.11(a)(i)(B) For removal of a Board member by the Board, the current Bylaw says a 3/4 majority vote of all Board members, except the member subject to the removal is required. The revision omits the exclusion allowing that director to participate in the vote. What is the compelling rationale for this change which is not related to any CCWG recommendation? ========== Section 7.12(b) This section stipulates what process should ensue after the entire Board (except the President) is removed because they are mentally unsound, convicted of a felony, or being found by a court to have breached their duty as a Director. Presumably the last Board member is removed by action of the President, the last person standing, who somehow convinced the last Director to remove themselves (for the 3/4 vote). This is also the only reference I could find for AC/SO appointing Interim Directors which is required in the case of the EC removing the entire Board. But in that case, the Interim Directors were supposed to be named BEFORE the final vote so that the Interim Board would be ready to immediately take office as required by Paragraph 97 of Annex 4 ("Having a Board in place at all times is critical to the operational continuity of ICANN and is a legal requirement"). ========== Section 12.2(d)(ix)(F) "Rules of Procedure" is a defined ALAC document. I am not sure if that is sufficient to justify upper case here , but regardless, I would assume the usage should be consistent throughout the sentence. I note that in Annex A, terms such as "Policy Development Process Manual", "Initial Report", "Final Report" and other terms are all capitalized. ========== Annex D, Section 1.2 The term PDP is used here. That is a defined term in the Bylaws referring only to the GNSO. My understanding is that the section related to a Bylaw change as a result of any formal policy development process from an SO. The ccNSO uses the defined term "ccPDP" and the ASO section is silent on what their policy process is called. ========== Annex D, Section 1.4(b)(i-ii) The higher threshold should apply not only to Fundamental Bylaws, but also to the Articles of Incorporation. ==========

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Interim Board appointment
by Alan Greenberg May 9, 2016

May 9, 2016

When the Interim Board wasbeing discussed, the process we decided on was that each body with Directors (SOs, At-Large, NomCom) at the time of the decision, would name Interim Board members so that the instant the old Board was removed, there would be a new one to step in (Paragraph 97 of Annex 4: Having a Board in place at all times is critical to the operational continuity of ICANN and is a legal requirement.) If there is such a provision in the Bylaws, I cannot find it unless it is the Section 7.12(b) which I asked about before, but in that case there is a 5-day gap. Alan

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Bylaws 7.12(b)
by Alan Greenberg May 8, 2016

May 8, 2016

My eyes are somewhat crossed from reading Bylaws, but... 7.12(b) reads: This Section 7.12(b) shall apply to Board vacancies occurring when all Directors (other than the President) are recalled as provided by Section 7.11(a)(ii). Within five days following the date such Directors are removed, the EC Administration shall provide written notice of the EC's designation of individuals to fill such vacancies (each such individual, an "Interim Director") to the Decisional Participants and to the Secretary, who shall cause such notice to be promptly posted to the Website. .... Refers to "all the Directors being removed" as per 7.11(a)(ii) - due to being of unsound mind or convicted of a felony. Am I mis-reading this, or is this section really referring to a case where the entire Board is declared unsound or criminal? And if so, the EC must replace them with Interim Directors? Alan

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Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws
by Grapsas, Rebecca May 8, 2016

May 8, 2016

Holly Gregory asked that I forward the email below. Please post to the CCWG and BCG lists on her behalf. Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff, Attached please find comments from Sidley and Adler on the CCWG’s Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF). Please note that we have serious concerns around comments 9 and 10 and believe that, as currently stated, they are based on misreadings of the draft Bylaws in the relation to the CCWG Proposal. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Corporate Governance & Executive Compensation Practice Group Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.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. ****************************************************************************************************

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