September 2016 - Accountability-Cross-Community

Additional Document attached for today's CCWG ACCT meeting
by Brenda Brewer Nov. 2, 2016

Nov. 2, 2016

Good day all, Please review the attached document "Proposed Revisions to ICANN Articles of Incorporation" which will be discussed on today's CCWG ACCT meeting @ 19:00 UTC. In preparation for your call, CCWG Accountability Meeting #95 <https://community.icann.org/x/ECOOAw> - Tuesday, 21 June @ 19:00 - 21:00 UTC. Time zone converter here<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+Accountabilit…> Proposed Agenda: 1. Welcome, roll call, SOI (5min) 2. Articles of Incorporation (25 minutes) **see attached document 3. Budget Update (25 Minutes) **see attached document 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/ 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

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Injunction denied in Texas suit to block IANA Transition
by Greg Shatan Sept. 30, 2016

Sept. 30, 2016

Twitter is atwitter. More news to follow. All systems are go!

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Answers to some common questions being encountered by the ICANN staff
by Bruce Tonkin Sept. 30, 2016

Sept. 30, 2016

From https://www.icann.org/iana-stewardship-questions Answering some of your questions on the stewardship transition By delivering the IANA stewardship transition proposal<https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en> to the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) in March, the global Internet community executed the largest multistakeholder process<https://www.icann.org/resources/pages/iana-accountability-participation-sta…> ever undertaken in Internet governance. The transition proposal achieved the broad support thousands of Internet stakeholders by reinforcing the current multistakeholder system and making ICANN more accountable to Internet users around the world. The proposal also garnered support from global representatives of industry, the technical community, civil society groups, academics, governments and end users. The timely completion of the transition will help preserve the continued openness of the Internet by entrusting its oversight with those who have made the greatest investments in its extraordinary success so far – the volunteer-based multistakeholder community. Still, some questions remain about the nature of the IANA functions, ICANN, and the likely impacts of the transition and we wanted to answer them for you in one place. 1. Does the transition threaten Internet freedom? No. The United States Government's contract with ICANN does not give the U.S. any power to regulate or protect speech on the Internet. The IANA functions are technical – not content – based. The freedom of any person to express his or herself on the globally interoperable Internet is in fact enhanced by the transition moving forward. ICANN is not, has not been, and by its Bylaws cannot become, a place for regulation of content. Ensuring that the Internet remains open, interoperable and stable in the long-term helps protect Internet freedom. Some believe that extending the contract may actually lead to the loss of Internet freedom because it could fuel efforts to move Internet governance decisions to the United Nations (U.N.). Former Homeland Security Secretary Michael Chertoff and retired Vice Chairman of the Joint Chiefs of Staff James Cartwright stated<http://www.politico.com/agenda/story/2016/06/keep-internet-free-and-open-ic…> that, "rejecting or even delaying the transition would be a gift to those governments threatened by a free and open Internet." 2. Will countries be able to censor speech on the Internet after the transition? No more so than they can today. Right now, there is nothing about ICANN or its contract with the U.S. Government that prevents a country from censoring or blocking content within its own borders. ICANN is a technical organization and does not have the remit or ability to regulate content on the Internet. That is true under the current contract with the U.S. Government and will remain true without the contract with the U.S. Government. The transition will not empower or prohibit sovereign states from censoring speech. Many leading civil society and advocacy groups<https://www.accessnow.org/cms/assets/uploads/2016/05/CSstatementonIANAtrans…> [PDF, 106 KB] actually argue that the transition will enhance free speech on the Internet. Human Rights Watch, Access Now, Article19, Open Technology Institute and Public Knowledge, support the transition because "executing upon the IANA transition is the best way to ensure the continued functionality of the global internet and to protect the free flow of information so essential to human rights protection." 3. Will ICANN be more susceptible to capture by a single entity after the transition? No. ICANN's multistakeholder model is designed to ensure that no single entity, whether country, business or interest group, can capture ICANN or exclude other parties from decision-making processes. Features of this model include open processes where anyone can participate, decisions made by consensus, established appeals mechanisms, and transparent and public meetings. These elements are all reinforced in the community transition proposal<https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en> and have been building blocks for the free and open Internet we see today. NTIA, along with other U.S. Government agencies and a panel of corporate governance experts, conducted a thorough review of the transition proposal<https://www.ntia.doc.gov/report/2016/iana-stewardship-transition-proposal-a…>. NTIA confirmed that the proposal mitigated the risk of a government or third-party capture of ICANN after the transition. Columbia University's John Coffee also concluded that<http://www.newyorklawjournal.com/id=1202762978409/Adventures-in-Corporate-G…>, "ICANN has been given so many checks and balances that it is difficult to imagine a hostile takeover," after the transition. 4. Will ICANN seek oversight by the U.N. to maintain its antitrust exemption after the transition? No. ICANN is not, and never has been exempted from antitrust laws. ICANN has not been granted an antitrust exemption through any of its contracts with NTIA or the U.S. Department of Commerce. No court ruling in favor of ICANN has ever cited an antitrust exemption to support its ruling. This past July, NTIA Administrator Larry Strickling addressed the concerns<https://www.ntia.doc.gov/speechtestimony/2016/remarks-assistant-secretary-s…> about the possible antitrust liability of a post-transition ICANN and reaffirmed that "ICANN always has and will continue to be subject to antitrust laws." After the transition, ICANN will have no mandate, need or reason to seek to be overseen by another governmental or inter-governmental group for protection. NTIA also would not allow the transition to occur if ICANN were to replace the role of the U.S. Government with another government or inter-governmental organization. 5. Will governments have more control over the Internet after the transition? No. The transition proposal does not increase the role of governments over the Internet or ICANN as an organization. The multistakeholder model appropriately limits the influence of governments and intergovernmental organizations to an advisory role in policy development. More than 160 governments actively participate as a single committee and must come to a consensus before policy advice can be issued. After the transition, there will be times where the ICANN Board must give special consideration to the public policy advice of governments. However, this will only happen when there is no objection from any government in the committee – which includes the United States. This is a stricter requirement than is currently in place for government advice. In a March testimony before Congress<http://docs.house.gov/meetings/IF/IF16/20160317/104682/HHRG-114-IF16-Wstate…> [PDF, 103 KB], Intel Corporation stated that the transition proposal "strikes the right balance of including governments in a true multistakeholder community, while not giving them increased influence over ICANN's decisions," after the transition. 6. Does delaying the transition by one or two years have any negative consequences? Yes, any delay of the transition could have significant global consequences. The Internet is a voluntary, trust-based system. A delay would introduce uncertainty, for businesses and other stakeholders, which could have long-term business, social, cultural, political and economic impacts. This past March, U.S. Ambassador David Gross testified<http://www.commerce.senate.gov/public/index.cfm/hearings?ID=418B1D81-1F0B-4…> that, "the clearest impact [of a delay] is on the broader, global community. It will signal that the U.S. has changed its position and no longer believes in a private-sector led internet and that governments will play a primary role in making the final decision. Russia, China, and others will welcome such a decision." In addition, the Centre for International Governance Innovation added<https://www.ourinternet.org/press/statement-by-gcig-regarding-iana-transiti…> to this sentiment by expressing that "[A delay will] increase distrust, and will likely encourage some governments to pursue their own national or even regional Internets." 7. Will ICANN relocate its headquarters outside of the United States after the transition? No. ICANN will not relocate its corporate headquarters location after the transition. The transition proposal clearly states<https://www.ianacg.org/icg-files/documents/IANA-transition-proposal-final.p…> [PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to remain unchanged." California law is the basis for the new mechanisms created to empower the ICANN community and hold ICANN the organization, Board and community, accountable. In addition, ICANN's Articles of Incorporation are filed under California law, and its Bylaws state that ICANN's headquarters are in California. 8. Is it illegal to allow the transition to move forward without congressional approval because it is a transfer of U.S. property? No. ICANN is not aware of any U.S. Government property that would be transferred as a result of the transition. In a letter to Chairman Grassley and Chairman Goodlatte<http://www.ntia.doc.gov/files/ntia/publications/20160810_-_ntia_response_to…> [PDF, 1.25 MB] last month, NTIA stated that the Department of Commerce Office of General Counsel conducted a legal review of this issue and advised NTIA that transition would not result in the transfer of U.S. Government property, and that, in the view of the Department, the authoritative root zone file is not U.S. Government property. 9. Will Verisign have the ability to raise prices of.com domain names on 1 October 2016 as a result of the transition? No. The cost of .com domains is capped at $7.85 until 30 November 2018. The current pricing of the .com registry is defined by two separate contracts (1) the .com Registry Agreement between Verisign and ICANN; and (2) the Cooperative Agreement between Verisign and the Department of Commerce. After 2018, Verisign and NTIA will have to negotiate to change the terms for the Cooperative Agreement or agree to end the Cooperative Agreement before discussing new pricing of the .com domain with ICANN. In letters<https://www.ntia.doc.gov/files/ntia/publications/2016-8-31_doj_response_to_…> [PDF, 851 KB] to Chairman Cruz, Chairman Lee, and Chairman Duffy last week, the Assistant Attorney General stated that, consistent with past practices, it is expected that NTIA will seek the advice of the U.S. Department of Justice on any competition issues implicated by the extension of these two contracts. 10. Do the recent independent review process (IRP) decisions regarding applications for new generic top level domains prove that ICANN is not sufficiently transparent or accountable enough for the transition? No. An IRP is an accountability mechanism used to review and resolve a concern raised by the community over a policy decision made by ICANN. Any result from an IRP, whether positive or negative, demonstrates that the system of checks and balances built into the ICANN multistakeholder model works. The IRP has been enhanced to strengthen ICANN's commitment to employ open, transparent, bottom-up, multistakeholder processes after the transition. 11. Does ICANN have an operational relationship with the Chinese government? No. ICANN does not have any operational relationship with the Chinese Government. ICANN's engagement center in China is one of seven around the world. The presence of an ICANN engagement center or operational hub within a country does not imply any level of support for the nation's government or its policies.

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Notes, recordings, transcript for WS2 Staff Accountability Subgroup Meeting #2_29 September
by MSSI Secretariat Sept. 29, 2016

Sept. 29, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Staff Accountability Subgroup Meeting #2 – 29 September 2016 will be available here: https://community.icann.org/x/KAysAw 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 Notes 1. Review Action Items from previous meeting o Chair’s letter to ICANN CEO Reviewed reply from Goran to the request to have staff participant. Request to meet with Co-Chairs in Hyderabad and to possibility invite Goran to attend a subgroup meeting before Hyderabad. However the Co-Chair's may not be able to arrange such a call and will meet with Goran and provide an update to the group and then schedule a call with him and the group after Hyderabad 2. Staff paper on staff accountability Overview of the staff paper and review of what materials might be needed for follow up to address the two WS1 items noted in the scope section. Group to develop further questions for ICANN to address and respond 3. dot registry staff accountability issues https://docs.google.com/document/d/1GVH0e_SK7mN3GvRZ29ph1pjdGVgAa1v58mHXfyt…<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> Used the case as an example - Reviewed the dot registry paper and discussed the issues as it relates to staff accountability. Noted: Obligations to the bylaws, accountability, non discrimination, transparency. What are the expectations the panel held for staff accountability and transparency. Noted that the Board may have discussed the issue at its recent Board retreat as there were issue raised on transparency and staff accountability. 4. Next steps - work plan o Timeline Discussion - formulate questions to staff of existence and content of various policies, other questions that come from staff paper, third set of questions from the dot registry example. Jordan to provide first draft of questions. o Hyderabad or Copenhagen draft timeframe Discussion - timing of work, more on the longer timeframe and anticipate having draft report for Copenhagen. Will use this to schedule meetings going back to manage the work 5. AOB o Open & Safe staff participation in the group Letter to Goran included the ask to have staff participate openly in the group discussion. Raised question - aren't staff stakeholders too? Can staff speak freely or are there constraints Next meeting 13 October Documents Presented · Staff Accountability_Göran letter.pdf<https://community.icann.org/download/attachments/61606952/Staff%20Accountab…> · CopyofStaffAccountabilityWS2DraftStaffPaper.pdf<https://community.icann.org/download/attachments/61606952/CopyofStaffAccoun…> · redotregistrynotes.pdf<https://community.icann.org/download/attachments/61606952/redotregistrynote…>

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Notes, recordings, transcript for WS2 Ombudsman Subgroup Meeting #8-26 September
by MSSI Secretariat Sept. 28, 2016

Sept. 28, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Ombudsman Subgroup Meeting #8 - 26 September 2016 will be available here: https://community.icann.org/x/CgG4Aw 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 Notes WS2 Ombudsman Subgroup Meeting #8 | 13:00 UTC | Monday, 26 September (including relevant portions of the chat): Roll call - Welcome - Opening remarks * Sebastien Bachollet: Review of agenda - no objections. 11 participants at start of call. Feed-Back from the WS2 plenary (Sept 20, 2016) and prep of the next WS2 plenary (Oct 4, 2016) * Sebastien Bachollet: unfortunately, there was no time available for input from this group. Exchange with the Transparency DT (Michael Karanicolas) * Michael Karanicolas: There seems to be much overlap between our work in these groups. When there are issues with the transparency the Ombudsman is the key element in oversight. (presentation of slide) Evaluate Ombudsman independence and competency for these other roles. Independence, powers and expertise. Requesting authority from the Board prior to starting an investigation could be an issue? Expanding the Ombudsman role to be more pro-active to promote transparency internally and externally. Promotion of the Ombuds office. role of Ombudsman vs. Human Rights. Would like ICANN transparency to be more like government vs private industry. * Herb Waye: Good points and key for me is formality vs informality. A commissioner is another role. * Farzaneh Badii: I am in doubt of pro active role of ombudsman (bullet point 4). Agree with HW. * Michael Karanicolas: formal vs informal roles for Ombudsman is an argument we hear often. This can be a false argument - having formal powers can give the Ombudsman informal processes more weight. Cost is a fair consideration and should be looked at. Voice of the people vs watchdog? again fair question but we have to ask the question if ICANN needs a watchdog. * Chris LaHatte: note that Ombuds only needs board consent where there is an own motion investigation, but otherwise no need for consent for a complaint from community * Herb Waye Ombuds: Ombuds should promote diversity, ethical behaviour, human rights, and fairness. * Chris LaHatte: also note that Ombuds has full access to all documents, so can review any DIDP in any event with existing powers * Herb Waye: Re watchdog role - let us remember we have the independent review - would it not be worth discussion this with them? relative to requesting permission from the Board - for the record we have never been refused permission. It is more advising the Board vs requesting permission and could be reviewed. * Michael Karanicolas: Hm - I hadn't realized the Ombudsman could move forward independently. Thanks very much for clarifying. * Asha Hemrajani: Good points from MK. I note that the Ombudsman has access to all documents internally. Also note that a mediation skill would be important for the Ombudsman. Like the idea of the Ombudsman promoting his services more widely. * Michael Karanicolas: @Farzaneh, I think he means that for the board to refuse the Ombudsman's request to open an investigation would be a very controversial thing. * Michael Karanicolas: The power to say no is there, but that for them to use it would attract a lot of negative attention. * Herb Waye Ombuds: Yes relationship with Board is very good and positive, it is not controversial in any way. We all have ICANN and community best interests in mind * Michael Karanicolas: Sure - that would be * Sebastien Bachollet: thanks to MK for his presentation. We can arrange to have someone from our group participate in the Transparency meetings if requested. * Farzaneh Badii: can the Ombudsman move on an investigation without a complaint? * Herb Waye: On systemic issues we can move forward without actually having a complainant - but we need to advise the Board - unfortunately the Bylaws say approval from the Board. We have to report to the Board with the results. * Asha Hemrajani: MK what point would be your priority? * Michael Karanicolas: Examine specific role of the Ombudsman vs DIDP appeals - and need to understand the exact role of the IRP in ICANN. Also what is the role of the Ombudsman in appeals processes and if they are equipped for doing this. Discussion of the following items from the document * (not discussed) Stress Tests with Steve DelBianco and CLO * Cheryl Langdon-Orr: Little to say about Stress Tests and the Ombudsman. There are only two ST13 and 34 (presentation of these). Questions? * Herb Waye: On ST34 it is important to bring balance to the smaller groups going forward. There are some structures in place that restrict participation. ATRT2 - review of the office * Sebastien Bachollet: Still waiting on response from the Board to the letter from the CCWG-Accountability. Avri Doria any new inputs? * Avri Doria: No new information from Board. We may not need to wait and perform a gap analysis. * Asha Hemrajani: Will check with Board on the status of the Board response. ATRT2 - ICANN employees * (not discussed) PTI * Sebastien Bachollet: let us look at the response from ICANN Legal. * Herb Waye: Memo clearly states that PTI clients can have recourse to the Ombudsman. * Sebastien Bachollet: are we satisfied with this response? How do we deal with anything that is not names related? Next meeting #9 - Oct 3, 2016 Documents Presented * CCWG_WS2_DT_Ombuds_#8_V1.pdf<https://community.icann.org/download/attachments/62390538/CCWG_WS2_DT_Ombud…>

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time limits on mission challenges
by Mueller, Milton L Sept. 28, 2016

Sept. 28, 2016

Hello, I had to leave the call early before the time limits on the IRP challenges were discussed. I am a bit surprised, even shocked by the willingness of some people to impose strict limits on IRP challenges based on mission limitations. I cannot conceive of what the US or EU governments would be like if legal challenges to transgressions of fundamental rights had to conform to time limits. Help me understand this. I understand the argument about “finality” but I think people who make that argument are fundamentally misunderstanding what the mission limitations and IRP challenges are for and how they should function. ICANN policies easily take 2-3 years just to be fully implemented. The effects of mission-exceeding policies may not be actually felt by individuals or companies for 3, 4 or 5 years after they are passed. It is also possible that a policy that was passed and seems to be within the mission at the time it was passed, will later be applied in a way that shows that it can be used to exceed mission limitations. So what triggers this 2 year time limit? When does the clock start? Does it start with the _passage_ of the policy in the first place? Does it start with _implementation_? Does it start with the specific action or _application_ of the policy that results in the harm? At the very least, this needs to be clarified. My view is that IF there is to be a timer (which I do not accept), the timer has to start from the specific application of the policy to affected individuals, not with its passage or implementation. I think the misunderstanding that I saw in the notes is based on the idea that mission-based challenges will occur just after we _pass_ a policy. So people arguing for “finality” as saying they want it to be clear whether a policy is in effect or not. I understand this argument, but since mission limitation challenges are based on harm done to individuals, we have to talk of time limits in the context of when and where they are actually applied to individuals, and we have to give plenty of time for that harm to manifest itself. If, for example, you modify the UDRP in a way that turns out to enable abuse by parties who want to censor web sites, you can’t start a 2-year timer when the policy is passed or implemented, you have to start it when someone takes an action that effectively censors someone by applying the policy to their domain. If you don’t do that, the whole system could be gamed by the abusers simply waiting out the 2 year time limit and exploiting the policy after it expires. I also think we should be able to object to a policy as transgressing mission limitations when it is passed, just as in liberal democracies one can mount a legal challenge to a law as being unconstitutional before it actually goes into effect. But these kinds of appeals could legitimately have a time limit. Sorry I was not able to be there to make these points in person. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of MSSI Secretariat Sent: Wednesday, September 21, 2016 3:41 PM To: CCWG Accountability <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] Notes, recordings, transcript for CCWG ACCT Meeting #5_21 September Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Meeting #5 – 20 September 2016 will be available here: https://community.icann.org/x/Pg6sAw A copy of the notes and action items 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: 1. Sub-group rapporteurs should advise in the next two weeks if they are a complex topic or not for purposes of scheduling as presented today. Rapporteurs to deliver their subgroups paper 3 weeks (October 5th) prior to Hyderabad outlining work. 2. Staff to review resources to see if there is a means to do interviews with leaders to assist in drafting positions. Sub-groups to advise staff if interested in this assistance. Notes: Notes (including key elements of the chat): Action Items: · Sub-group rapporteurs should advise in the next two weeks if they are a complex topic or not for purposes of scheduling as presented today 1. Welcome/SOI · Thomas Rickert: No one on phone only. No new SOIs. Mathieu Weill and Leon Sanchez send their apologies. 2. Update on US Senate Hearing on IANA Transition · Steve DelBianco: Theme for this call is keep calm and carry on. Background on current situation vs Congress. Two main factors for conservatives, Political positioning vs a liberal administration and the disrespect of Congress vs the transition from ICANN and NTIA. We should assume there will be at least a 9 week delay in transition. We should not split the transition and accountability Bylaws. · David McAuley (RySG): We have a third witness on this call as well - Paul · Paul Rosenzweig: Thanks David -- I'm glad you noticed. I don't have any need to intervene · Jorge Cancio (GAG Switzerland): oh, yes, Paul's point of view would also be useful · Greg Shatan: Intellectual Property interests have a variety of views. · Paul Rosenzweig: Jeff -- what would you like to know specifically -- I'll answer if I can · Jeff Neuman (Com Laude): Whether your assessment is the same as Steve's and whether you believe the outcomes are as Steve has said (in your view) · Brett Schaefer: Why shouldn't the accountability reforms be implemented now if the transition is delayed? The bulk of them are not dependent on the transition. Indeed, Bruce and Cherine said that that was the original plan in Morocco. What if the transition is delayed longer than 9 weeks? Are you prepared to wait forever for accountability implementation? · Julf Helsingius (GNSO NCPH NCA): I don't see any reason to wait. · Edward Morris: Agree with Brett and Julf. · Avri Doria: Do we really need to split the Bylaws why not just include a statement that the PTI stuff is not active until the transition. · Alan Greenberg: @Brett, there is a lot of work to do to split the Bylaws and that will take time. I presume that will not be done until it is obvious the delay will be substantial. (> 9 weeks). But that is hypothesis on my part. · Paul Rosenzweig: Assuming it is part of the bill at all ... · Philip Corwin: Near-term Board implementation of accountability measures in face of a delay would be very helpful in ending the Congressional roadblock, while refusal to do so would add fodder to critics, IMHO · Edward Morris: PTI is roughly 5% of the new Bylaws. · Jeff Neuman (Com Laude): +1 Philip · Edward Morris: Good point Phil. · Matthew Shears: interesting point Phil · Alan Greenberg: Even a rider saying that parts are inoperable is a Bylaw change that must go through due process which is time-consuming. · Greg Shatan: @Milton, not denying that some elements of the IP community are playing a role; we saw one as a witness in the Hearing. However, "IP interests" are not monolithic and there is a diversity of views, including support for the transition and for the multi-stakeholder model. · Philip Corwin: It's not just the IANA contract. NTIA must also end RZMA contract with Verisign so that it can contract directly with ICANN to perform root zone maintenance. Until that is in place ICANN would have no power to direct root zone changes. · Milton Mueller: Uncertain how we could continue with the transition if there is a new administration. · Steve DelBianco: many variables. We lose nothing by waiting until the election is done. · Edward Morris: Matt, I am not an expert on the "test drive" strategy. What I do know is that by delaying implementation we are playing into the hands of those who are opposing the transition. · Steve DelBianco: "test drive" makes no sense, since we will not "test" our powers in a few months or even a few years. Test Drive is equivalent to indefinite delay. · Matthew Shears: agree Steve · Milton Mueller: Yes, Ed, we need to get as many of the accountability reforms implemented as possible · Megan Richards, European Commission: @Steve -agree on ineffectual test drive. · Paul Rosenzweig: We lose nothing by waiting. Some of the opposition ICANN can do nothing about. We will know by the end of tomorrow if a new rider has been included or not. · Kavouss Arasteh: This is purely an American political issue and we should just move on. · Steve DelBianco: I agree with Paul, that events are moving this week. Let's not game-out all the outcomes. Let's get back to work on WS2 · Steve DelBianco: WS2 implementation is part of the Board's commitment -- regardless of IANA contract · David McAuley: +1 @Steve · Edward Morris: Agree Steve · Avri Doria: Steve, rights, and after Sept 30, that commitment comes due. · Sivasubramanian M 2: Is the US budgetary allocation / NTIA spending on Transition so substantial that the US budgetary process becomes one of the obstructions? · Steve Delbianco: asper previous answer. · Thomas Rickert: We have done a great job so far and we should be patient and wait for the next few weeks. As to the possibility of a Test Drive - we have baked extensive consultation between the Board and the community which should obviate the need for the community to exercise the community power would make a test drive difficult. 3. WS2 Planning and Timeline · Thomas Rickert: WS2 work plan. There is light engagement by the community currently possibly due to the political uncertainty or fatigue. All items in WS2 are important and need to get done. We probably need to readjust our work plan to be able to deliver by the end of this FY17. · Karen Mulberry: (presentation of slides on Planning and progress). Public Consultations now planned in February and May 2017. · Kavouss Arasteh: We should not revisit what has been decided in WS1. · Sivasubramanian M: WS2 ought not to be time-limited earlier there was a discussion on Accountability as a continuous, ongoing process. · Matthew Shears: a number of the issues under discussion are shaping the discussion on transition in the political sphere - these issues should be dealt with asap particularly if we are going to stagger from CR to CR · Edward Morris: Agreed Matt. · Niels ten Oever: @Siva - if we don't set deadlines this work will never end. · Mark Carvell UK GAC rep: Setting public comment periods intersessionally ahead of ICANN 58 and 59 respectively so that these meetings can initiate their finalization with maximum visibility for community is very sensible and practicable approach. · Greg Shatan: It is important for us to recognize that the work in the sub-groups cannot advance if people do not participate. It is important to have active participation on the list and in Google docs between meetings. · Jorge Cancio (GAG Switzerland): I have a certain difficulty in planning too much ahead given the present uncertainty regarding the whole process · Avri Doria: it is hard to get people to focus on WS2 while WS1 remains only a possibility · Thomas Rickert: There is effectively little interest in most sub-groups currently. Most participants seem to be waiting to see something to comment on vs writing something. · Christopher Wilkinson: Agree we need more participation in the sub-groups, its not fatigue its just a mountain of work. · Avri Doria: Blank sheets of paper are an insurmountable problem for many people. · Jorge Cancio (GAG Switzerland): clear the overall situation and then we will be able to set clear deadlines · Mark Carvell (UK GAC rep): Much of WS2 are key enhancements and strengthening of the ICANN model that need to be developed anyway regardless of current political uncertainty. · Jeff Neuman: And there is a lot of other substantive work going on in the ICANN community at the moment. · Jorge Cancio (GAG Switzerland): Jeff is right · Tijani Ben Jemaa: need to focus on what is required of WS2 by WS1. · Jorge Cancio (GAG Switzerland): I would be interested in having figures about the engagement from the community - volunteer fatigue is melting active participants to a reduced group. · Jeff Neuman: @jorge, and my fear is that the community has fatigue on the non-policy issues that ICANN is engaged in. In other words, ICANN is supposed to coordinate substantive policy.....but we have spent the last 18 months+ on procedural accountability issues. What good is an incredibly accountable organization if it cannot perform the substantive tasks it was formed to do. · Thomas Rickert: ACTION ITEM: Sub-group rapporteurs should advise in the next two weeks if they are a complex topic or not for purposes of scheduling as presented today. Unless rapporteurs can deliver a paper 3 weeks prior to Hyderabad we need to do something else. One option could be to do interviews with leaders by staff to write down positions? Minor support and no objection. This is optional and sub-groups that want to use this should advise us of this. · Jeff Neuman: Lots of substantive issues on ICANN's plate now: RDDS/WHois, New gTLD Reviews, SUbsequent Procedures, Rights Protection Mechanisms, Privacy Proxy, Universal Acceptance / Awareness, etc. · Michael Karanicolas: Personally - I'd rather draft something myself than provide input by phone. · Niels ten Oever: Is there staff capacity for that? Sounds good to me! Would save a lot of time. · Sebastien Bachollet: I we agree to this schedule we should stick to it. · Thomas Rickert: No opposition to using the new project plan and ensure that we follow it. 4. Update on Action Item from 30 August Plenary · Karen Mulberry: There are meetings on the 9th. · Sebastien Bachollet: the last day is for the new bodies only. 5. WS2 Budget Update and Travel to ICANN 57 Hyderabad · Bernard Turcotte: (Presentation of slides) · Tijani Ben Jemaa: Rules are different at each embassy. · Alan Greenberg: Varies greatly from one country to another for an Indian visa - very complex. · Kavouss Arasteh: this visa caused issues for many. ICANN should come to some arrangements with countries it holds events in. 6. WS1 WP-IOT-IOT (IRP Implementation Oversight Team) · Becky Burr: (Presentation of the slides). First issue is the application of subsequent modifications rules of existing IRPs. · Avri Doria: Support and explanation of some details regarding the alternative. · Kavous Arasteh: Normally rules are not retroactively applied - but in this case I would support this. · Jorge Cancio (GAG Switzerland): I'm not sure whether others feel the same, but without having some prior info in writing on the issues explained by Becky and Avri it is extremely difficult to follow. · Kavouss Arasteh: Jorge, yes ,it is difficult but the way it has been drafted is quite understandable · Jorge Cancio (GAG Switzerland): Thanks for that clarifications Becky and Thomas · David McAuley (RySG) 2: I was active in the sub-team discussions and this alternative seems a fair compromise of the positions stated. · Becky Burr: Next is Deadline to file, There are several alternatives. · Jorge Cancio (GAG Switzerland): under the current rules there seems to be a short timeframe for filing, but it is only triggers if you have or should have awareness. In the new alt 2 24 months would be a hard stop: even if you have no clue you would not be able to file a dispute if you gain awareness afterwards... · Malcolm Hutty: The issue is that we have different disputes, originally there were only process disputes and claimants usually know very quickly if there is an issue. but under the new rules there are also claims vs ICANN following its own Bylaws which is different. As such Alternative 2 is not good. Would be ok for a fixed delay for procedural claims. The 45 days seems a very tight timeline - does this make sense for the EC to make a claim. · Chris Disspain: Malcolm, how do you ensure that folks do not take actions over time that make them effected so that they can bring a claim and could you give me an example of something that would require your formulation? · Chris Wilson: some statute of limitations for all claims makes sense. · Steve DelBianco [GNSO - CSG]: Malcolm's point about the EC decision process is quite compelling · Greg Shatan: Agree with Chris, there needs to be some finality. · David McAuley: Have agreed that 45 days is too short but support Alternative 2. We need some finality. · Kavouss Arasteh: Malcolm, you said 45 days is too short. what time frame in your view is not short · Jorge Cancio (GAG Switzerland): on the other hand an absence of a statute of limitations weakens legal certainty · Alan Greenberg: @Malcom, what deadline for filing would you propose for a harm that is delayed? · Greg Shatan: I could see expanding the 45 days, at least for the EC. · Greg Shatan: I support Alternative 2. · Becky Burr: Please note that the 45 days is tolled once CEP is initiated, so as a practical matter you only need to signal. Any other views? · Alan Greenberg: Alos support Alternative 2 - there has to be finality. · Malcolm Hutty: If we are agreeing to a fixed time then we are doing something different from a court and is not compatible with the Bylaws. alternative depends on a watchful community but someone may not be harmed and therefore cannot file. · Kavouss Arasteh: Perhaps 24 months may be argued to be too long? · Chris Wilson: For sure! But 2 years is a long time, IMO. · Chris Disspain: my preference would be fewer than 24 but I can accept it if that is the consensus view · Kavouss Arasteh: Could be change 24 by 12 months? · Chris Disspain: that would be better in my view Kavouss · Kavouss Arasteh: I have not seen in any analogous case putting such a long period like 24 months · Chris Disspain: all of these things are a balance and need to be both accommodating and workable · Becky Burr: but anyone could apply for a name, be denied, and challenge - so I’m not moved by the no standing - the potential lack of motivation is a legitimate concern. · David McAuley (RySG) 2: +1 @Chris · Greg Shatan: 24 months seems an acceptable compromise. Kavous · s Arasteh: Supports alternative 2 but not more than 12 months. · David McAuley (RySG) 2: it is a difficult thing to calculate but the IoT seemed to think 24 months is right if alternative 2 is used · Chris Disspain: it is the members of the community to have to work most closely within the ICANN framework....especially the contracting parties...they are entitled to a degree of certainty about position so that they can get on with what they need to do · Greg Shatan: I think 24 months is appropriate. I see calls for longer and shorter times, which indicates we got it right. · Becky Burr: Seem to be gravitating towards Alternative 2 with some time. third issue is Cross Examination of Witnesses at hearings. · David McAuley: Support alternative 1 strongly. The panel needs to be given a reasonably high bar to avoid trials each time. · Kavouss Arasteh: Prefer Alternative 2 but could live with Alternative 1. · Greg Shatan: do not really support any of these. If we have witnesses, we need to be able to cross examine. · Jorge Cancio (GAG Switzerland): If the role of the hearings gains weight it is important to also consider flexibilities as to venue and language · Edward Morris: Excellent point David. I also support alternative 1. · Becky Burr: Jorge, those issues will be decided going forward, not as part of the supplemental rules update · Mathieu Weill, ccNSO, co-chair: Agree Jorge, the very principle of witnesses and cross examination has implications on the ability to remain accessible to all and provide level playing field for non English speaking parties · Jorge Cancio (GAG Switzerland): thanks Mathieu - that's it - and the venue also plays a role · Becky Burr: No more inputs. * Thomas Rickert: Adjourned. Documents · CCWG WS2 Final v2 Plenary 20Sept2016.pdf<https://community.icann.org/download/attachments/61607486/CCWG%20WS2%20Fina…>

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Notes, recordings, transcript for WS2 SO/AC Accountability Subgroup Meeting #7 - 22 Sept
by MSSI Secretariat Sept. 28, 2016

Sept. 28, 2016

Hello all, The notes, recordings and transcripts for WS2 SO/AC Accountability Subgroup Meeting #7 - 22 September 2016 will be available here: https://community.icann.org/x/wRusAw 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 Item: ACTION ITEM- Group to propose and place draft questions in Google Docs/wiki page for the group to review at next meeting Notes 1. Cheryl read into the record - email from Kavouss regarding issues and questions that he had raised to be considered. Response - all questions will be considered for future considerations as the work progresses within the group. Some of the work will be shaped by SO/AC feedback to questions that they will be asked to respond to. 2. Review (brief) of last call #6 held on Sept 6th and any Action Items / Business Arising (See Agenda Discussion Item below) - Discussion focused on reaching out to SO/ACs on their accountability mechanisms - will frame the questions on the email list, including approach and other details 3. Discussion Topics a) Drafting the text of questions based on the bylaws charter for our group, plus Rec 10 and 12 - Can we start drafting some of the questions now? Discussion Questions raised - Kavouss "Co-Chairs, you are referring to ask some questions from SO/AC. What are those questions? what is the expectations that all SO7AC reply " Mathew - what type of questions are you thinking about. Response questions drafted should address what they think and what is in the bylaws Steve example per our charter in the bylaws, we ask each SOAC about documents/procedures showing how they assure accountability, transparency, participation, and prevent capture. Discussion on the timing of developing the questions may depend on staff paper release and then the timing of responses from SO/ACs Suggestion to add additional point to ask them if there is any departure of the day-to-day processes CW three points: wants to hear more from participants, regarding the questions in particular if they are accountable to their members, the critical issue is how do they decide and what positions to take acting in a accountable and transparent issue, this is how to prevent capture otherwise you will not succeed in having SO/ACs provide accountability procedures. Possible question - What existing formal accountability measures does your organizations have in place. Importance of focusing on crafting the questions so they address what the group want to capture for its work. Points raised regarding self-appraisal, note what Avri has placed in the chat Avri Doria: I look forward to seeing the self-appraisals. not only the content included, but the content excluded says a lot in such a self-appraisal. wonder how many of the SOAC will pass a giggle test . Avri Doria: i am almost included to argue against Kavouss' view of the GNSO, but am sure now is not the time to have such discussions. GNSO Chairs and Counsel are the right place to start in asking the questions. Proposal based on today's discussions and the groups mandate - will start a new page in Google Docs and on the wiki put some proposed text of the questions in the page for discussion at the next meeting - try to keep the questions to no more the five if possible. ACTION ITEM- Group to propose and place draft questions in Google Docs/wiki page for the group to review at next meeting b) Questions specific to ask each SO/AC - about their accountability mechanisms pending review of the staff paper... Can we delay this until after next week? Documents Presented * Agenda_WS2_SO-AC_Acct Subgroup Meeting #7_22SEPT16.pdf<https://community.icann.org/download/attachments/61610945/Agenda_WS2_SO-AC_…>

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting #7 | 27 September
by MSSI Secretariat Sept. 28, 2016

Sept. 28, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #7 - 27 September 2016 will be available here: https://community.icann.org/x/sAC4Aw 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 Notes 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB Notes including relevant elements from the chat: Tijani Ben Jemaa: Support GS. Anne Aikman-Scalese: @Chris - I don't know how we can say in the FOI0HR that due diligence process and remediation process can be adopted without an ICANN policy process. Annex 6 says we must consider these items consistent with ICANN existing processes David McAuley (RySG): +1 @ Tijani Farzaneh Badii: b9 and c9? where is that? Vague Brett Schaefer: b and c seems to cross the line established in the Core Value -- "This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties." Greg Shatan: sophism: a fallacious argument, especially one used deliberately to deceive. Tatiana Tropina 2: where did will land? can we have a quick summary? Have we got food for thoughts? Agreed to disagree at this point? :) Niels ten oever: Let us move to Principle 13. David McAuley (RySG): Principle 13 - the word "address" is vague and possibly out of scope Chris LaHatte: i understand we have a specific task, so Anne, I understand the restrictions of our tasks, but I don't want adoption of empty principles Tatiano Tropina: ccTLDs cannot be included in any due diligence. Chris LaHatte: so if a cctld does something like censorship or worse can we still criticize them? Anne Aikman-Scalese: @Chris - the principle is not empty if it then produces further action down the road - e.g. a requirement that PDP consider and assess the FOI-HR regardless of the nature of the PDP. David McAuley (RySG): I think I agreed with you @Kavouss - "address" is vague - I'd be surprised if I did not think so before Greg Shatan: 13B is clearly out of our scope. David McAuley (RySG): 13(b) is very broad - seems way out of scope matthew shears: yep Paul McGrady 2: @Avri - I don't hear anyone saying that they don't know what Mr. Ruggie is saying. Even so, isn't the first step would be to determine what human rights obligations ICANN has under applicable law, not turning first to third party resources (especially if those resources are so ambiguous that we need their author to explain what they mean)? Chris LaHatte: @anne, as long as that happens Niels ten Oever 2: @Greg + Tatiana, for ccTLDs and gTLDS or any business relations? Tatiana Tropina 2: David, not only out of scope but opens the room for claims about Niels ten Oever 2: @Greg + Tatiana, for ccTLDs and gTLDS or any business relations? Tatiana Tropina 2: David, not only out of scope but opens the room for claims about enforcement Avri Doria: not the definition in wikipedia - it is a for of Rhetoric used to convince people of a PoV. does not need to be fallacious and does not need to confuse, can even be a educational technique. Niels ten Oever 2: Paul I think only talked about ccTLDs Tatiana Tropina 2: Niels, for any business relations because it's enforcement... Tatiana Tropina 2: and protection! Cheryl Langdon-Orr (CLO): Agree totally Greg enforcement Paul McGrady 2: Agree with Greg. 13(b) seems to be already excluded under a clear reading of the bylaws requiring that ICANN not get involved in the business of third party enforcement. David McAuley (RySG): not sure I understand the context of ccTLDs and gTLDs comment, Niels Kavous Arasteh: uncertain why people against mitigation and remediation. Avri Doria: what about in ICANN's own activities? Tatiana Tropina 2: Paul, Greg, +1. matthew shears: while I think Ruggie important, I believe we have to first interpret: 1) agree what "respecting human rights" means; 2) agree the "international human rights" and what is appropriate for ICANN, and 3) agree what "applicable law" means in this case" and perhaps return to Ruggie later Niels ten Oever 2: Because if I remember correctly Paul Twomey's argument it was specifically focused on ccTLDs Niels ten Oever 2: Because if I remember correctly Paul Twomey's argument it was specifically focused on ccTLDs Greg Shatan: Avri, I like the wikipedia definition better and thank you for clarifying your intended meaning. Tatiana Tropina 2: Niels, ccTLDs or gTLDs - no matter, (b) is enforcement and protection David McAuley (RySG): thanks @Niels Greg Shatan: Matthew -- agree 10000%,, that is the nub of our job. Niels ten Oever 2: know and show as well? Farzaneh Badii: Matt I agree. I think we should first agree on what "respecting human rights" means Greg Shatan: matthew shears: while I think Ruggie important, I believe we have to fiirst interpret: 1) agree what "respecting human rights" means; 2) agree the "international human rights" and what is appropriate for ICANN, and 3) agree what "applicable law" means in this case" and perhaps return to Ruggie later. Tatiana Tropina 2: Matt, hear hear! Bastiaan Goslings: I agree with Matt too Avri Doria: i think that if the FoI does not include the avoidance of causing harm by our activities, we might as well have a null text for the FoI. Brett Schaefer: Agree with Matt, the discussion seems to presume that Ruggie is agreed to and the starting point for the FoI. It seems to be jumping several important steps. Avri Doria: i see absolutely nothing here that requires content regulation Kavouss Arasteh: Avri+1 Chris LaHatte: +1 Avri Anne aikman-Scalese: Adopting 13 as is could take ICANN to content regulation which would be dangerous as it is outside of its mission and scope. Amdrew Mack: Support AAS - we should not be in content regulation. Paul McGrady 2: Ruggie is in the way of us actually discussing the process we should be on. Can we please start at the beginning instead of the (possible) end? David McAuley (RySG): I tend to agree w Avri's point and think we are experiencing problems trying to shoehorn Ruggie Principles into FoI Tatiana Tropina 2: David, agree with the latter. Kavous Arasteh: Need prevention and mitigation otherwise it is empty words. TatianaTropina: considering all principles imply that principle 13 is clearly interpreted elsewhere and goes to enforcement and protection which is beyond our remit. Anne Aikman-Scalese: AGree with Kavouss that the FOI-HR will require lots of further discussion and application to existing ICANN processes. Niels ten Oever 3: We are only looking at what we could like. With this we are not importing other principles. That is why we are discussing them one by one David McAuley (RySG): I think Tatiana put that well regarding 13(b) matthew shears: + 1 Tatiana Tatiana Tropina 2: Niels, one by one is cool but the lawyer in me always says that you have to interpret the provisions of the whole text in connection with other provisions of the same text. Avri Doria: i thought we had already decided by definiton that we were agains Ruggie principles Greg Shatan: these principles say ICANN's business principles should also respect Human Rights which could be an issue for ICANN. Niels ten Oever: @Greg is the document many different modalities are discussed - breaking relations with third parties should only be last resort (is what is in the Ruggie commentary). Tatiana Tropina 2: Niels, even as a last resort this would be sometimes impossible for ICANN Chris LaHatte: so we need to develop our own set of principles, and just use Ruggie et al as guidelines. Tatiana Tropina 2: Chris, I keep saying this Kavous Arasteh: (suggesting operation for the group by creating sub-teams for 13 and 15). matthew shears: I am ot sure we need to develop principles - let's agree the key focus areas of the bylaw first Greg Shatan: Agree, Chris. At best this is a launching pad for our consideration. Tatiana Tropina 2: Matt, well not literally develop principles but rather develop interpretation. matthew shears: yes Tatiana Tropina 2: 13 (a) with nuances... (for the record) Cláudio Lucena: Is there any concern on the potential scale of the adverse impacts on human rights we're looking at or are we treating all kinds of potential adverse impacts as similar? I'm thinking a general approach that does not address the potential scale of the impacts may pose much higher risks, costs and burdens than those which could be viably and reasonably handled by businesses. Greg Shatan: Agree with Matthew, we don't need to go all the way to principles -- we do need to figure out the parameters in which we interpret ICANN's actions. Avri Doria: i think we need principles not more constraints. guidelines not prohibitions Anne Aikman-Scalese: with respect to 13A and 15A do not agree there convergence because Address is not identified. Kavouss Arasteh: I have raised the point Address is unclear. Avri Doria: what harm do people find in the word address Avri Doria: why is ia a scary word? David McAuley (RySG): what does it mean, @Avri Greg Shatan: Agree that we have not completed discussion of (a). Tatiana Tropina 2: Me too. (a) is not finished. I want more of (a). Avri Doria: look at, discuss and come to some conclusion about. David McAuley (RySG): then we should use such term(s) David McAuley (RySG): in my opinion Avri Doria: it i longer to use a stock phrase than a term we defines, but ok, i guess. Bastiaan Goslings: I would at least want to add 'as required by applicable law.' to art 13a Anne Aikman-Scalese: I would not call 15 a or 13 a as "provisionally agreed" to be part of the FOI-HR - we did not go that far. Niels ten Oever: Adjourned. Documents Presented · HR_Presentation Meeting 6.pdf<https://community.icann.org/download/attachments/62390448/HR_Presentation%2…>

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Notes, recordings, transcript for WS2 Guidelines for Good Faith Conduct Subgroup Meeting #1 - 21 Sept
by MSSI Secretariat Sept. 28, 2016

Sept. 28, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Guidelines for Good Faith Conduct Subgroup Meeting #1 - 21 September 2016 will be available here: https://community.icann.org/x/-wC4Aw 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 Notes 1. Introduction of Rapporteur 2. Introduction of Team 3. Explaining the Task 4. Expectations for Deliverables Executive Summary Description of Issue * Current State of Play * Supplemental Report Recommendations * Requirements for recommendation (no wordsmithing expected) * Rationale for recommendation Assessment of Recommendations * How do the recommendations meet the NTIA criteria? * Are the recommendations compliant with WS1 recommendations? 5. Special Concerns of the Group 6. Establishing a Work Plan 7. Regular Calls * Administrative Items - SOI, attendance * Introduction and background of team members present to kick off the subgroup meeting * Discussion of the work plan and scoping of the topic to be discussed in the group. * Task is about standards behavior for community. * Deliverables - review of work and preparing the report to be provided to the CCWG Plenary * Special Concerns - is topic to be scheduled as shorter less complex or more complex. Potentially target to have draft of the work done by Jan 2017. Anticipate having initial draft of the work completed by Hyderabad. * Ask that the group members look at drafting proposals for what should be in guidelines, exchange thoughts on process on the list and then the pints can be pulled together into the rough draft of the report. * Will start with the description of the Issue, include proposals exchanged on the list. Options for proceeding will be proposed to the list so that those who were not participating in the discussion could weigh in on approach the work will take on conducting its assessment of its recommendations and how these should be considered by the group.

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #5 - 26 September 2016
by MSSI Secretariat Sept. 27, 2016

Sept. 27, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #5 – 26 September 2016 will be available here: https://community.icann.org/x/rAO4Aw 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 Notes (including relevant excerpts from the chat): 1. Welcome · Greg Shatan: no audio only. Any changtes to SOIs? (none). (over 25 participants at start of call). 2. Continued Discussion of Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.” a. Confirming the scope of the “Gap Analysis” b. Method(s) of assessing/performing the Gap Analysis? · Greg Shatan: Given the list discussion this seemed a logical choice as the first topic for the discussion today. Good points brought up by DM. · David McAuley: Based on my experience on WS1 it was my impression that rec. 12 was asking us to consider the gap analysis provided in WS1 and therefore not necessary to do another one. · Pedro da Silva: My conclusion is the opposite of the one by DM. There was an effort at the Istanbul meeting to start a gap analysis. What we had was an intense discussion and not a proper gap analysis. Based on this I conclude we have not completed a gap analysis and need to do so in WS2. · Greg Shatan: Unfortunately, Milton Mueller is not here but will read his email - supports the notion that we need to do a formal gap analysis. Other valid input from Philip Corwin. · Philip Corwin: If we do a gap analysis we cannot do it for specific issues (Chinese menu) we have to look at countries for all the aspects. Counsel at the end of WS1 confirmed that California law met the requirements - which is essentially a gap analysis. Now even if it would be recommended that ICANN be incorporated in another jurisdiction how would it then interact with the Empowered Community and PTI. · Paul McGrady: 2 questions - Why would we jump to finding a new home for ICANN because there is a gap in a subset - would we not first look at filling the gap under the current jurisdiction. Secondly if we do decide to move - How would we proceed to select another country? Would we look at all countries? How long would this take and how much would this cost. · Greg Shatan: Gap analysis is in two parts. The first is are there shortfalls in the current implementation of the recommendations - if not why would we look at another jurisdiction? If there is a gap it would seem logical to seek a simple solution which would not require moving incorporation. So we should do a gap analysis to confirm if there are gaps (but this does not need to be a work for the ages given our timeframe). · Pedro da Silva: One of the tools for helping us to decide if we need to consider re-incorporation should be the gap analysis. · David McAuley: I understand what PDS is saying but it would be good to know what we need to check for Jurisdiction is important. · Greg Shatan: Unless there is a critical that cannot be solved in California then the incorporation discussion should be ended. · Avri Doria: Some feel the gap analysis has not been properly done. Once this is done we would look at these gaps, if any, to see what solutions could be applicable - but moving incorporation would be a very last resort. But to be clear gap, for me, does not automatically imply moving jurisdiction. · Greg Shatan: Agree with AD. · Paul McGrady 2: I agree with Avri - gaps do not automatically= moving out of California. · Cheryl Langdon-Orr (CLO): Agree Avri · Greg Shatan: Uless there are other comments we should look at doing some form of an analysis without re-inventing the wheel or incurring significant legal costs should be done? We need, as a group, to initially identify any potential gaps and if these are confirmed then we can consider if these need to go to the lawyers. Would prefer assignment model - where people tell us what they will look at. · David McAuley (RySG): we should formulate an agreed base question as well - that we will be uniformly following as we review the report. · Greg Shatan: Support DM suggestion. We need a limited time to get this done - 2 weeks? No objections. Action Item: We will review the results at our October 10th meeting. · Pedro da Silva: So you are proposing that we divide amongst ourselves WS1 recommendations to look for gaps - if this is the case we should make a clear separation between requirements and implementation. For the EC this should be doable - we should have a table with the powers of the EC in one column listing the power and then another column listing the mechanisms for implementation. · Greg Shatan: why look alternatives if there is no gap. · Pedro da Silva: as pointed out by PC the EC is not membership. · David McAuley: Agree with GS that we should not look for new jurisdiction until there is a real gap that cannot be resolved otherwise. Should the rapporteurs should get a clear crisp mandate which has been checked by the co-chairs. · Greg Shatan: DM good suggestion. Action Item we should aim to have a completed gap analysis to present in Hyderabad. · Paul McGrady 2: Not just before we identify gaps, but before we identify gaps that can't be fixed by new mechanisms while staying put... · Paul McGrady 2: while staying put... · Philip Corwin: Didn't our expert and not inexpensive outside legal experts provide us with reasonable assurance that all the accountability powers of the designator model could be reasonably and effectively exercised under CA law? · Paul McGrady 2: @Phil - I thought they did and that was what was "sold" to the community before the Marrakech vote. · Greg Shatan: The answer is yes but we have been asked to validate this as a community opinion vs a US legal opinion. · Philip Corwin: Also, BTW, since the Board was effectively able to veto the member model maybe we should take their temperature on whether they have any sympathy for considering an ICANN organization change of jurisdiction in the near term. As they have accepted the designator model under CA law, should we expend any substantial time or $ on looking at other jurisdictions to cure "gaps" if in the end the Board is going to tell us that they reject the concept of moving at this time? They did dispatch the new CEO to Capitol Hill two weeks ago to tell US Senators that ICANN had full intent to remain in the USA. · Pedro da Silva: Support DM suggestion to prepare a set of questions. · Greg Shatan: Is there anything beyond the question beyond the recommendation and how it is implemented. Uncertain about PDS issues. We will produce a question and then proceed to the analysis. Would ask participants to work with the list for questions. Meeting adjourned.

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