June 2016 - Accountability-Cross-Community

TR: Request to the Chairs of Chartering Organizations for Validation of CCWG-Accountability Budget
by Mathieu Weill June 23, 2016

June 23, 2016

Dear Colleagues, Following our call on Tuesday, please find enclosed for reference the request to Chartering Organizations we have issued regarding our WS2 budget. Staff will post the correspondence in the relevant wiki section. I reiterate our thanks to the PCST for their support in this effort. Best Mathieu De : Mathieu Weill [mailto:weill@afnic.fr] Envoyé : jeudi 23 juin 2016 08:42 À : 'James Bladel'; 'Alan Greenberg'; 'katrina(a)nic.lv'; 'Patrik Fältström'; 'thomas.schneider(a)bakom.admin.ch'; 'llee(a)equinix.com' Cc : 'Bernard Turcotte'; 'Thomas Rickert'; León Felipe Sánchez Ambía (leonfelipe(a)sanchez.mx) 'ACCT-Staff'; 'Xavier J. Calvez'; 'Alissa Cooper'; 'Jonathan Robinson'; 'Lise Fuhr'; oscar(a)lacnic.net Objet : Request to the Chairs of Chartering Organizations for Validation of CCWG-Accountability Budget Chairs of the CCWG-Accountability Chartering Organizations, As per it's Charter the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget for its activities for FY17 and has also developed a historical analysis of all the transition costs to date (please see the charter of the PCST in the attached document). The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST (see attached document). Upon validation by the Chartering Organizations these should forward it to the Board for Approval. Please do not hesitate to contact us or the PCST should you have any questions on the attached document. Mathieu Weill, Thomas Rickert, Leon Sanchez CCWG-Accountability Co-Chairs

1 0

Article about Cruz' and friends latest intervention
by Nigel Roberts June 23, 2016

June 23, 2016

I have just published a short article about the latest Cruz Missile on Domain Pulp. See http://www.domainpulp.com/legal/senators-up-the-ante-over-spending-on-icann… Comments and feedback welcome.

1 0

Remember to sign up for CCWG-ACCT Lighting Talks and WS2 Topics Expression of Interest before Helsinki
by Karen Mulberry June 22, 2016

June 22, 2016

Dear CCWG-ACCT, Here is where you can locate the Lighting Talk sign up list and the WS2 Expressions of Interest sign up list for each Subteam Propose a lightening talk As discussed during the last CCWG-Accountability meeting, the agenda for Helsinki includes time set aside for lightening talks¹. This is meant as a way to brainstorm and generate ideas around the scope and focus of Work Stream 2 efforts. Please sign up on the list to propose the topic that will be the focus of your talk remember to stay in line with the scope of the topics as outlined in the proposal (this is not an opportunity to expand to new topics). So far, there are only two volunteers signed up for lightening talks. To sign up for a talk on a WS2 topic during the Helsinki meeting, please go to the following Google doc and indicate which topic you have are interest in speaking on: https://docs.google.com/document/d/1qWnvDG_qCr6lLvXRo_e3NYp6DalnBokHP5wAbAXl w5U/edit?usp=sharing Expressions of Interest for Work Stream 2 Topics As discussed on today¹s call here is where you can sign up in the Google doc for a Subteam. You have the choice of signing up as an active and contributing participant or an observer for each of the WS2 topics if you have not done so already. This list will be used in Helsinki to help organize the WS2 work. Link: https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOCs eqU/edit?usp=sharing Karen Mulberry Director Multistakeholder Strategy and Strategic Initiatives ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094

3 3

Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
by Seun Ojedeji June 22, 2016

June 22, 2016

Hello Parminder, As an African, I would tend to agree with your point and wish that your conclusion point was the case (as a reactive measure). However as you know, we have discussed this extensively in the past (on different fora) and we found that the means to the end of such is so complicated and the end itself would ultimately create a govt lead ICANN which i certainly don't want. Regards Sent from my LG G4 Kindly excuse brevity and typos On 19 Jun 2016 07:28, "parminder" <parminder(a)itforchange.net> wrote: On Sunday 19 June 2016 11:31 AM, Jordan Carter wrote: I may have missed something, Parminder, but isn't it a plus rather than a negative for ICANN accountability that process errors can be appealed and the company held to account for them? Jordan In may make ICANN accountable, but to a system that is unaccountable to the global public, and is only accountable to the US public (there could even be cases where these two could be in partial conflict) - that in sum is the jurisdiction issue. ICANN accountability issue is different, though linked, bec it has to be accountable, but to the right system, which itself is accountable to the global public. Different 'layers' of accountability are implicated here, as people in IG space will like to say! Here the issue is, a US court has no right to (exclusively) adjudicate the rights of the African people, bec African people had no part in making or legitimising the system that the US court is a part of. Dont you see what problem we will be facing if the US court says that fairness of process or whatever demands that .africa goes to DCA. If you were an African, what would you feel? An ICANN under international law will be subject to only an international judicial process, which Africa is equally a part of, and gives legitimacy to. parminder Jordan On 19 June 2016 at 07:26, parminder <parminder(a)itforchange.net> wrote: > > > On Sunday 19 June 2016 04:13 AM, Paul Rosenzweig wrote: > > The Economist | A virtual turf war: The scramble for .africa > http://www.economist.com/news/middle-east-and-africa/21700661-lawyers-calif… > > > Not that this fact is being discovered now, but it still is the simplest > and clearest proof that US jurisdiction over ICANN's policy processes and > decisions is absolutely untenable. Either the US makes a special legal > provision unilaterally foregoing judicial, legislative and executive > jurisdiction over ICANN policy functions, or the normal route of ICANN's > incorporation under international law is taken, making ICANN an > international organisation under international law, and protected from US > jurisdiction under a host country agreement. > > parminder > > Paul Rosenzweig > > > _______________________________________________ > Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://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 > > -- Jordan Carter Wellington, New Zealand +64 21 442 649 jordan(a)jordancarter.org.nz _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

15 28

Afnic reveals figures on diversity within ICANN
by Sébastien Bachollet June 21, 2016

June 21, 2016

Dear Colleagues, Chers collègues (voir plus bas) I would like to thanks AFNIC for the great job done regarding data on Diversity. Please find the documents published by Afnic. In line with the work on ICANN accountability and responsibility, Afnic is pursuing its efforts to strengthen the organization¹s diversity & has published figures about ICANN <https://www.afnic.fr/en/about-afnic/news/general-news/9954/show/afnic-reve als-figures-on-diversity-within-icann.html> <https://www.afnic.fr/en/about-afnic/news/general-news/9954/show/afnic-revea ls-figures-on-diversity-within-icann.html> https://www.afnic.fr/en/about-afnic/news/general-news/9954/show/afnic-reveal s-figures-on-diversity-within-icann.html The document itself is available in English here : https://www.afnic.fr/medias/documents/Dossiers_pour_actualites/2016_Icann_Di versity_Data.pdf <https://www.afnic.fr/fr/l-afnic-en-bref/actualites/actualites-generales/99 56/show/l-afnic-revele-les-chiffres-de-la-diversite-au-sein-de-l-icann-2.htm l> Looking forward to seeing you in Helsinki ! En Français Je souhaite remercier l¹Afnic pour l¹excellent travail fait sur les données de l¹ICANN sur la diversité. Vous trouverez ci-après les documents publiés. Dans la lignée des travaux sur la redevabilité & la responsabilité de l¹ICANN, l¹Afnic continue son action pour y renforcer la diversité & publie des données sur l¹institution. https://www.afnic.fr/fr/l-afnic-en-bref/actualites/actualites-generales/9956 /show/l-afnic-revele-les-chiffres-de-la-diversite-au-sein-de-l-icann-2.html Accès au document en français directement ici : https://www.afnic.fr/medias/documents/Dossiers_pour_actualites/2016_Donnees_ Diversite_ICANN.pdf A très bientôt à Helsinki ! Skills are useful but diversity is essential. Sébastien Bachollet +33 6 07 66 89 33 Blog: http://sebastien.bachollet.fr/ Mail: Sébastien Bachollet <sebastien(a)bachollet.com>

3 2

Notes-Recordings-Transcript link for CCWG Accountability Meeting #95 - 21 June 2016
by MSSI Secretariat June 21, 2016

June 21, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability Meeting #95 - 21 June 2016 will be available here: https://community.icann.org/x/ECOOAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Action Items * Action Item TR - it would be great if SE could get back to the list on this. what about applicable law? * Action Item TR - for the time being I would suggest we see the written contributions from Sam Eisner to the list before deciding if there is a need for change * Action Item - Forward budget to Chartering Organizations for review. Notes 1. Welcome, roll call, SOI (5min) * No one on audio only. Roll call will be taken through virtual meeting room. * Congrats to all for NTIA milestone (June 9th). 2. Articles of Incorporation (25 minutes) TRickert * Steve DelBianco to present * Do the co-chairs intend to submit a comment to the ICANN public consultation on the Articles of Inc? * TR - to be consistent we should do the same as we did for the Bylaws. * SDB - end of consultation should be 6 July. * Going through the side by side comparison document (will only note issues) * CWilkinson - Applicable Local Law - would be helpful to have legal advice as to what that means in practice (originally meant that ICANN would respect European law on privacy - which has been an ongoing issue with ICANN over the years). SDB this sounds like it is an ongoing process - possibly this would be relevant under the WS2 item under jurisdiction. * David McAuley (RySG): Steve, IMO, the CCWG proposal did not mean to undo the current Article's use of "applicable" as relating to both international conventions and local law in new section 3 - I think we should retain that.TR we should ask the lawyers about the impact of these changes. * KArasteh - Should not use applicable law - we should spell out exactly what we mean. Future is also an issue. TR let us hear from the lawyers before deciding if this in an issue. * Greg Shatan: Jorge, in my experience "from time to time" is typically used in legal documents (contracts, bylaws, articles) when something can happen at any time (rather than at regular periods). * Becky Burr: Sorry - "applicable law" has a very clear meaning in a legal document, and this is a legal document. * SDB - "shall" vs "May" seems to be an issue which we should ask legal. GShatan - if we were to make a change we would be adding a new requirement to the articles - currently there is no such requirement. This is beyond our recommendations. "time to time" is not colloquial and is used in many legal documents. SDB Greg makes the argument for "may". * BSchaeffer - when it is determined we need to use a bottom up multi stakeholder process to determine it. * Robin Gross [GNSO - NCSG]: our report said it would be determined in a bottom-up manner. NOT that it "may",, which also means "may NOT" - have the same old debate all over again! * Becky Burr: I don't think this permits the global public interest to be determined unilaterally by ICANN without bottom up multi-stakeholder process * Avri Doria: we need something that says it outright, not something where some one can argue that maybe it does and maybe it doesn't * Avri Doria: Becky it needs to be stated explicitly. this was one of the decisions within the CCWG. * SEisner - "shall vs may" issue of sentence constriction. Will have a look at this. SDB MAY or SHALL is not needed? SEisner could be a solution. * (Action Item) TR - it would be great if SE could get back to the list on this. what about applicable law? * SEisner - proposed language makes it a cleaner read given there are no clear treaties which apply to ICANN. Kavouss Arasteh: AGREE WITH EXPLANATIONS BEING PROVIDED. wE SHOULD NOT PUT APPLICABLE BEFORE INTERNATIONAL CONVENTION AS WE THEN HAVE TO FIND OUT WHICH INTERNATIONAL CONVENTION WOULD BE APPLICABle.SEisner - new wording is simply cleaner but does not change the meaning. On Further vs. Future - there is little distinction between the words - if there are significant concerns it could be changed back. * Kavouss Arasteh: rETAIN FURTHER AS IT IS AND PLS DO NOT PUT APPLICABLE BEFORE INTERNATIONAL * Brett Schaefer: In the new Article 2, I also suggest replacing "organized" with "incorporated" in the second sentence and adding an additional sentence affirming the current location of the headquarters of ICANN. These clarifications provide greater certainty regarding ICANN's legal jurisdiction and ensure that future changes of jurisdiction are not taken lightly. These changes to Article 2 would not preclude a change of jurisdiction of incorporation or relocation of ICANN's headquarters if Work Stream 2 so decides. The more explicit wording, however, would ensure that these changes will be subject to due scrutiny by requiring approval of the Empowered Community under the new bylaws because they would require an amendment to the Articles of Incorporation. * (Action Item) TR - for the time being I would suggest we see the written contributions from Sam Eisner to the list before deciding if there is a need for change. * Brett Schaefer: Could we get an explanation for the deletion of the old Article 5(e)? SDB please read the explanation at the bottom of the page - given here is no legal requirement it is being proposed to be removed. BSchaefer - why was it there in the first place since 1998? SEisner - At the point in time when ICANN was incorporated - it was unclear if ICANN was public charity - but it is now. So some of this language was drafted awaiting the determination of the IRS as to the final status of ICANN (Foundation vs Charity). BSchaefer - why not replace this provision with equivalent protections for what ICANN is. SEisner - ICANN being incorporated the laws of the IRS must apply to ICANN. * TR - Sam can you circle back with Rosemary and post something to the group on this - and if there is no problem with keeping it maybe you could consider this. * Brett Schaefer: I would also point out that the CCWG did not request this change. * Kavouss Arasteh: We should have strong and valid reason to delete it * Kavouss Arasteh: In 5. I suggest to keep it for the good explanation which enshrined in the provisions. * TR - let us not take a decision today if we are going to file comments to the public consultation. Let us wait to the papers from SEisner and see how this meets our need for explanations; 3. Budget Update (25 Minutes) MWeill * KArasteh - is this consistent with WS1 - MWeill - yes. * No other comment or questions. * Action Item - Forward budget to Chartering Organizations for review. 4. Staff draft papers on WS2 Topics (15 minutes) TRickert * GAbuhamad - presentation of the document formats. Working on getting these ready for Helsinki or immediately after but we have to coordinate with a number of other internal groups that are relevant to those topics (such as ATRT reviews etc.). If you have any suggestions, please send them directly to me. * KArasteh - should be a section OUTCOME. GAbuhamad these are the introduction papers to the sub-groups and the results of the sub-group work is the OUTCOME and is up to the sub-group. * TR - This is just to get things going. * BSchaeffer - when will these be distributed? GAbuhamad - trying to get them done for the meeting but not before. some may be after. * AGreenberg - would be great to have those that are ready distributed before we travel to Helsinki to read on the plane. TR - we will try to do this for those that are ready. 5. Helsinki Agenda and Status of Lightning - MWeill * Talks/Expressions of Interest (45 minutes) MW * Maximum of 3 persons per topic not to overburden any one topic. * Please sign-up to speak on a topic - we want diversity. * Review of expressions of interest in the slide deck. * Anne Aikman-Scalese: Will there be any discussion in Helsinki as to how to train the community in the procedural aspects of the Empowered Community? (Thisi essentially an implementation question I guess.) Do we need an Empowered Community Procedure Manual? * KArasteh - Should allocate time so we can deal with the subjects properly. * MW - Presentation of the agenda in the slide deck. * Samantha Eisner: A point of clarification - the item on Standards for Board Conduct seems to be mislabeled. This item is supposed to be the identification of standards of good conduct for community members in Board removal discussions, to allow the protections of indemnification to be provided * MWeill - this will be important. * Kavouss Arasteh: Please extend the allocated time for the second lightning in the afternoon to be at least 90 minutest * GShatan - will we know in advance which topics will appear in which lighting talks? * MWeill - will do our best on this but it may be short notice. 6. AOB (5 minutes) LSanchez * LSanchez - Any AOB? - None. 7. Adjourned.

1 0

Proposed Agenda for CCWG ACCT Meeting #95 on Tuesday, 21 June @ 19:00 UTC
by Brenda Brewer June 21, 2016

June 21, 2016

Good day all, In preparation for your call, CCWG Accountability Meeting #9 <https://community.icann.org/x/ECOOAw> 5 - Tuesday, 21 June @ 19:00 - 21:00 UTC. Time zone converter here <http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+Accountabilit… 9&p1=1440&ah=2> Proposed Agenda: 1. Welcome, roll call, SOI (5min) 2. Articles of Incorporation (25 minutes) 3. Budget Update (25 Minutes) See attached document - "Status on CCWG Budget - June 20 2016" 4. Staff draft papers on WS2 Topics (15 minutes) 5. Helsinki Agenda and Status of Lightning Talks/Expressions of Interest (45 minutes) 6. AOB (5 minutes) 7. Closing Adobe Connect: https://icann.adobeconnect.com/accountability/ <https://icann.adobeconnect.com/accountability/> Also, remember to sign up for a talk on a WS2 topic during the Helsinki meeting, please go to the following Google doc and indicate which topic you have are interest in speaking on: https://docs.google.com/document/d/1qWnvDG_qCr6lLvXRo_e3NYp6DalnBokHP5wAbAX… And, to sign up for WS2 topic groups, please see google doc here: https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOC… Thank you! With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN- Internet Corporation for Assigned Names and Numbers

2 1

Synchronizing WS2 accountability projects with upcoming Accountability & Transparency Review (ATRT3)
by Steve DelBianco June 20, 2016

June 20, 2016

Placing this on top of your inboxes so you can review before Helsinki meetings on Sunday 26-Jun. Below is the note I circulated to the CCWG-Accountability on 26-May, after which 2 responses were given: 1. Carlos Raúl Gutiérrez replied by suggesting we ask ICANN to do a progress report on implementation of ATRT2 recommendations. (my reply: yes) 2. Sivasubramanian asked if ATRT3 could be constituted now and have oversight over WS2 deliberations. (my reply: That is not the way WS2 was proposed in the CCWG report and is not how we designed the new bylaws, so this could not easily become a formal arrangement. Sure, ATRT3 members could participate in WS2 accountability projects, but the real question is whether ATRT3 would allow WS2 to complete its work before the review team began theirs) Again, the Work Stream 2 bylaws give the community more leverage than ATRT would, when it comes to adopting accountability enhancements that might be resisted by ICANN board and legal. So the question is whether to allow WS2 to proceed on its accountability tasks, or defer to ATRT3 to address them. --Steve From: Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Thursday, May 26, 2016 at 10:24 AM To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Synchronizing WS2 accountability projects with upcoming Accountability & Transparency Review (ATRT3) Just wanted to start a new thread on something CCWG should discuss as we begin Work Stream 2 (WS2). The attached document has all the background, and is summarized below. Several of our approved WS2 accountability tasks are within the scope of the next Accountability and Transparency Review Team (ATRT3), which is currently scheduled to begin Jan-2017. The CCWG may wish to consider whether to recommend delaying the start of ATRT3 in order to allow WS2 accountability items to be completed first. Currently ICANN is obligated to the 2009 Affirmation of Commitments with NTIA (AoC). ICANN’s Board made a commitment to NTIA to begin ATRT3 in January 2017. Regarding timing of ATRT3, note that the draft new bylaws require this review “be conducted no less frequently than every five years measured from the date the previous Accountability and Transparency Review Team was convened.” Since the last ATRT was convened in Feb-2013, ATRT3 could begin as late as Feb-2018. Below is a summary of WS2 items, CCWG discussions of WS2, and comparison of proposed bylaws for WS2 and ATRT recommendations. This document is intended to help CCWG determine whether and how to integrate and/or sequence WS2 activities with the third Accountability and Transparency Review. This document provides necessary background to address three questions: 1. How does the scope of ATRT compare with WS2 accountability items? 2. What do the proposed bylaws require for implementation of WS2? 3. What do draft new bylaws require for the AoC review of Accountability and Transparency (ATRT)? My own view is that WS2 gives the community more leverage than ATRT to achieve adoption of accountability enhancements that might be resisted by ICANN board and legal.

1 0

The Economist | A virtual turf war: The scramble for .africa
by Paul Rosenzweig June 20, 2016

June 20, 2016

The Economist | A virtual turf war: The scramble for .africa http://www.economist.com/news/middle-east-and-africa/21700661-lawyers-calif… Paul Rosenzweig

7 10

Re: [CCWG-ACCT] IANA Stewardship Transition - Project Expenses - FY16 Q3 update
by Seun Ojedeji June 18, 2016

June 18, 2016

Ah okay thanks for clarifying the summary page as I was doing a grand total of the "total row" instead, good to know that is not the case. :-) As to the legal cost, attached is the file I downloaded from the relevant url (FY16 Q1 to Q3- legal summary by firm), where i saw some 2014 dates and which actually made me ask clarification. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jun 2016 17:24, "Xavier J. Calvez" <xavier.calvez(a)icann.org> wrote: > Seun, > Thank you for checking the page. > The first cost summary slide indicates $23.3m total spend for the entire > project from July 2014 (inception of the tracking) to March 2016 (not $70m > as indicated in your email below). > The legal costs summary tables, in the Legal Advice Costs section, display > the costs only for FY16 (9 months from July 2015 to March 2016). The same > information for the preceding period (FY15, from July 2014 to June 2015), > appears in the section at the bottom called "Preciously published > information". > I hope that clarifies. Let me know if you have any other questions. > > > Thank you. > Best, > > Xavier > > On Jun 18, 2016, at 01:49, Seun Ojedeji <seun.ojedeji(a)gmail.com> wrote: > > <Filtered addresses that I don't have posting rights to> > > Thanks for the share Xavier, from the cost summary over 70m has been > expended so far with over 40% going to legal.... Sign > > That said, the detail legal section reads 2016 Q1 to Q3 and it's content > totals 7m. I could not correlate that figure with that one in the summary, > also the content of the document has dates of 2014 in it, yet the document > title refers to 2016 Q1 to Q3. Could you kindly clarify this? > > Regards > > Sent from my LG G4 > Kindly excuse brevity and typos > > Dear all, > > You find at the link below the updated project’s expenses as of FY16 Q3 > (from July 2014 to March 2016). As indicated a few months ago, we have > added new detailed information on the staff support with the individual > positions, names and percentages of effort over the period. > > > > *https://www.icann.org/resources/pages/iana-stewardship-project-costs > <https://www.icann.org/resources/pages/iana-stewardship-project-costs>* > > > > > > Thank you. > > > > Best, > > Xavier > > > > Xavier Calvez > > ICANN > > CFO > > 12025 Waterfront Drive, Suite 300 > > Los Angeles, CA 90094 > > Office : +1 (310) 301 5838 > > Mobile : +1 (805) 312 0052 > > Fax : +1 (310) 957-2348 > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >

1 0