March 2017 - Accountability-Cross-Community

Notes, recordings and transcript for Ombudsman Subgroup Meeting #19 | 27 March 2017
by MSSI Secretariat March 27, 2017

March 27, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Ombudsman Subgroup Meeting #19 – 27 March 2017 will be available here: https://community.icann.org/x/0LHRAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [cid:image001.png@01D2A6E7.60BC3910] Notes (including relevant parts of chat): 5 participants at start of call (+7 staff, Ombuds, Board member and consultant) Roll Call / Apologies – Welcome Sebastien Bachollet - Agenda approved, no changes to SOIs. Participation & Dashboard Sebastien Bachollet - Draft dashboard response (no objections). External review of the ICANN Ombuds Office Interviews Lars Hoffmann - update on interviews. Survey may overlap with some surveys but this is not seen as an issue. Survey Lars Hoffmann - We have no issues with any of the comments you have made. Phil Khoury - not expecting a vast number of responses - so the results of the survey may not be statistically significant. Sebastien Bachollet - understood and agreed. I will close comments on the questionnaire and you can finalize it after that. Phil Khoury – (presentation of survey) Sebastien Bachollet - We have agreed that it is the Office of the Ombuds and not Ombudsman. Herb Waye - bylaws say Office of the Ombudsman and new rules say Office of the Ombudsperson. avri doria: Might also be good to ask people whether they have ever been the target of an ombuds investigation/complaints, simlar to 3/4 Cheryl Langdon-Orr (CLO): good point Phil focus on the office/? function jot individuals Cheryl Langdon-Orr (CLO): good addition @Avri - should include organizations or groups and this should be include.It happened to me when I was Chair of the ALAC. avri doria: could speak of being party to one, and then asking whether as a complainant, defendnat, of 3rd party. then other questions can focus on party and answeres can be correlated. though some people may have been all three. avri doria: ... complainant, defendant, or third party Sebastien Bachollet - this sounds like a good idea but probably difficult to integrate into this questionnaire. Phil Khoury - indeed - we will look at doing this. Sebastien Bachollet - Any further comments or questions? (none). PK please proceed with adjustments as discussed. Asha Hemrajani: I have a general question on the distribution of this survey. How will this be distributed as widely as possible? Lars Hoffmann - We will have the survey translated - it will go up on the ICANN Website - have also readched out to the policy dept and will use the regional news letters and social media. I will write a quick draft which can be a basis to communicate this your personal contacts. Asha Hemrajani: Thanks Lars. I like the idea of the personal note Asha Hemrajani: We should aim for a high response rate to get feedback from as large a base as possible. Sebastien Bachollet - when do we stop accepting responses. Lars Hoffmann - suggest we play it by ear - will discuss after the two weeks. Asha Hemrajani: Lars' approach makes sense. Asha Hemrajani: Herb, perhaps you could include the link to the survey on your blog? Suggestion Herb Waye - will distribute widely through a blog post, my website and my contact list. Asha Hemrajani: excellent Herb! ICANN Anti-Harassment Policy Sebastien Bachollet - This is here to remind us that we have to include this is the tasks of the Ombuds Office. My concern is in the Board resolution in the last part where the CEO is the responsible for evaluating if this is the best place for this - concerned vs independence. Additionally, CONTINUE TO MONITOR is troubling - the Board yes but ICANN org sounds like it goes against the Bylaws. We need to include this in our work. avri doria: why is The Organization evaluating whether the program is appropriate for the community? Klaus Stoll: Sebastien, you have a point here! Klaus Stoll: Yes, this needs to be addressed in our recommendations. avri doria: but our group, i assume you mean this subgroup, is transitory and should blink out of existence at some point in the not too distant future. Herb Waye Ombuds: I agree... ICANN organization has an anti-harassment policy for HR, there may be some crosscontamination but the community should review for itself Cheryl Langdon-Orr (CLO): periodic reviews cheryl Langdon-Orr - periodic reviews seem to be the way forward. Re concern - re gender of who you complaining to - it is a very complex thing - and would warn us away from this rabbit hole - first we have have to stop saying male and female - its gender - next any professional Ombuds has all sorts of tools and options etc. So would recommend we keep a LIGHT TOUCH on this. Sebastien Bachollet - reason I am raising this is the Board resolution. Sebastien (ALAC): Resolved (2017.03.16.12), the Board directs the President and CEO, or his designee(s), to (1) ensure that the Organization continues to monitor whether the Office of the Ombudsman is the appropriate place for Community members to file a complaint under the Community Anti-Harassment Policy, and to annually review the Policy for future enhancements, as needed; (2) make ICANN Organization's Human Resources department available to assist in complaints where the complainant has indicated a preference to engage with a person of a different gender than the current Ombudsman. Herb Waye - best quick fix is to have a female adjunct. Will be discussing this when I go to LA in a few weeks. Hope to have a solid answer in the short term. Cheryl Langdon-Orr (CLO): it may be more than gender and same gender can also be a problem as well Cheryl Langdon-Orr (CLO): yes adjunct is a way forward Herb Cheryl Langdon-Orr (CLO): also working in isolation with a complaint can also be a concern Next meeting #20 Monday 3 April 2017 AOB (none)

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CCWG-Accountability-WS2-PlenaryMeeting-20170329 Documents
by Bernard Turcotte March 24, 2017

March 24, 2017

All, We are still working on finalizing a detailed agenda for the face to face meeting 29 March 1300UTC - which we hope to distribute to this list early next week. In the meantime and as agreed please find the various documents which will be presented at that meeting. These include: - Sub-Group Documents - SO/AC Accountability - draft for second reading - CCWG-Accountability-WS2-PlenaryMeeting-20170329-SOACAcct-DraftRecommendationsV1.1 - CCWG-Accountability-WS2-PlenaryMeeting-20170329-SOACAcct-DraftRecommendationsV1.0 to 1.1 red line - Diversity questionnaire for second reading - CCWG-Accountability-WS2-PlenaryMeeting-20170329-Diversity-QuestionnaireV1.1 - CCWG-Accountability-WS2-PlenaryMeeting-20170329-Diversity-QuestionnaireV1.0 to 1.1 red line Thank You and have a good weekend reading the documents Bernard Turcotte ICANN Staff Support to the CCWG-Accountability WS2

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Notes, recordings and transcript for SOAC Subgroup Meeting # 24 | 23 MAR 17
by MSSI Secretariat March 23, 2017

March 23, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 SO/AC Subgroup Meeting #24 – 23 MAR 2017 will be available here: https://community.icann.org/x/BqPRAw A copy of the notes may be found below. Thank you. Kind Regards, Yvette Guigneaux Multi-Stakeholder & Strategic Initiative Asst. ICANN – Internet Corporation for Assigned Names and Numbers Email: yvette.guigneaux(a)icann.org<mailto:yvette.guigneaux@icann.org> Cell: +1-310-460-8432 Skype: yvette.guigneaux.icann www.icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.icann.org&d=DwMGaQ&…> ________________________________ Notes (includes relevant text from chat) 0. Call Administration 1. Review of AI's from call #23 on March 2nd https://community.icann.org/x/3qDRAw Note to all - the latest version is named Plenary Draft 1.0 2. Update from Plenary Meeting March 10th Cheryl - very pleased with the discussion with the Plenary. Also, the slides that were used during the plenary session will be posted to the wiki. 3. Discussion, current (draft 1.3) documentation updates, readings and review. Review and discuss updates to our draft documentation - the Consolidated Draft Report after its 1st reading and Plenary discussion, see emails to our list and CCWG pre and post our recent meeting CPH. Steve: As most of us on the call were present we don't need to go into too much detail, but there was a good conversation at the plenary on March 10. For track 1, there were no big issues, but a few items were noted. Some interest to strengthen language around best practices, to change "recommend best practices" to "encourage implementation of..." No opposition to this change. Second point is to clarify that we are only talking about AC/SO accountability "within the scope of ICANN activity." Steve asked for others to point out where this language is in the current draft, and if not found language would be included in executive summary. No opposition to this change. Next was topic of Diversity and whether we should incorporate recommendations anticipated from the Diversity group of WS2. Alan - I don't think we should, as it would be redundant to other areas ICANN has already stated regarding diversity best practices. Kavouss - "is there difficulty to add diversity to the best practices?" It is taking time for the diversity group to establish this, so should we add it here? Steve - don't see difficulty, it just wasn't in our initial draft. And raises the question if we include this is it our version of diversity standards, or the other diversity group or ICANN in general (which haven't been posted yet) Alan - we don't know how such a statement of diversity best practices would necessarily be applicable to specific constituency groups. Jorge Villa (ASO): The diversity topic can be managed in a different way between SO/AC. If we include a recommendation, it must be very general recommendation Cheryl - there seems to be some rational for some reference with regards to outreach and participation, but that would vary across the constituency groups and would necessarily be a general statement, a single overall sentence and not a specific best practice. "Diversity would be a best practice within an SO/AC and may enable them reaching broader diversity dimensions." Kavouss - supports the general statement, this is consistent with similar statements made in several other areas (GAC, others) Steve - taking it under consideration to include general diversity language regarding outreach and participation. Alan - shouldn't we flag this as one of the items that we need to make sure matches up with other subgroup efforts when we pull all recommendations together? Steve - agreed and will include. Jorge Villa (ASO): I think that trying to resume diversity between SO/ACs might be a daunting task, The diversity concepts important for a group may differ from others. I think that maybe in further versions we might include something if we are completely clear of how this concept will be managed between SO/ACs Steve - agree in general, but the language as we've discussed is broad enough it shouldn't create an issue. Transparency Recommendation #4 - add appropriate reasons for an AC/SO meeting to be closed. Michael Karanicolas offered up language for 5 reasons. comments of suggestions? Alan - #4 seems insufficient. We should get some wider language from SSAC (Alan offered to follow up with SSAC) Steve - I think this language is often used. Alan - ok, if so then i don't have a problem. Christopher - appreciate their objectives but the implementation of many of their recommendations are problematic. I think the language is too specific but if this is what the group came up with then ok. Kavouss - don't think we need to add anything, it is sufficiently broad and we ask for clarification for other reasons as needed that would be appropriate. Alan Greenberg: If we use "normally" or some such wording, I have no problem with the list. Cheryl - what we can do is provide this back to the plenary and emphasize that this is an example list rather than an exclusive list. Transparency Recc. #5 both address minutes of meetings and we should be more consistent. Cheryl - I think we should bring the language from both recommendations together so they can be more consistent. But we should avoid wordsmithing the language on the call. Steve - inconsistency is meetings be available to members or available to all (published). Alan - in transparency recommendation it refers to minutes, but many calls don't have "minutes" and we might want to use more general language (meeting notes). Closed sessions are rare in ALAC but in the event they occur we keep no records. Steve - in the BC, closed meetings are then closed to members. Cheryl Langdon-Orr (CLO): Minutes / Notes and any recordings as the 'term' where Minutes is used now perhaps Kavouss - two words here are carefully used - "published" and "minutes." Language more commonly used now are "made available" and/or "posted" and "notes" instead of "minutes" Steve - we need to come back to this one later, as we need to move on to the other points of input. NOTE - in the chat the following language was offered up: Cheryl Langdon-Orr (CLO): Participation Recc 4 : For any meetings, be they closed to members only or open to anyone, members have to be able to access all records of the meeting, subject to exceptions for confidentiality matters. Transparency Recc 5: Notes, Minutes or Records for all membership meetings should be made publically available. Cheryl Langdon-Orr (CLO): Does that language work for the Finn Peterson point re consistency? Next topic is regarding continued focus on SOAC accountability after the CCWG concludes. We could amend our report to recommend that future ATRTs examine SO/AC accountability. But this would increase that review team's efforts. Alan - I think we could add this as an option within ATRT to review best practices for SOACs, but to charge them with reviewing SOAC accountability is too far, as this is something that the individual org reviews addresses. Steve - we can also suggest to Plenary that we are recommending one bylaws change at Sec 4.6 b. Next topic is Track 2: Mutual Accountability Roundtable. Steve - There was significant concern about our first reading recommendation. Many other ideas were offered by members of the plenary. One idea brought forth would be to, prior to each AGM, ask the chairs of AC/SOs whether they want to hold a roundtable. Alan - two different groups are referenced here - SO/AC chairs and then SO/AC/Group chairs, which is a much larger group. But I support the language. Steve - before we agree to this suggestion, I asked several leaders of GNSO constituencies, and stakeholder groups and they were firmly against this idea. Alan - I’m good with the language we have, and having it optional is good because as i stated in Copenhagen it is a good idea but I don't think ICANN isn't ready for it. Kavouss - I think this is a good idea, and being optional is good. But I think it should be open to everyone, not just these people noted in the language. Cheryl - one last point - are we ok on IRP latest comment from Avri to NOT include the complaints officer in the document language. Next steps are to incorporate these changes and move forward with a next Plenary draft for the March 29th call. 4. Next Meeting and future Meeting schedule none currently listed for April onwards. To be discussed. Master Schedule is here https://docs.google.com/spreadsheets/d/1qwr41BesyvDQBnqF_gBQlHfJlRkOGrjHa26… Next step is to reach out to the broader group regarding timing of future calls. 5. AOB and review of any AI's. None

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Notes-Recordings-Transcript links for IRP-IOT Meeting #16 - 23 March 2017
by MSSI Secretariat March 23, 2017

March 23, 2017

Hello all, The notes, recordings and transcripts for the IRP-IOT Meeting #16 on 23 March 2017 will be available here: https://community.icann.org/x/taDRAw A copy of the action items and notes may be found below. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers [cid:image001.png@01D2A3F0.2D39B1C0] Action Items: · DM – Initiate discussion on the IOT supporting SO and ACs wrt selecting candidates for the IRP panel. · DM – Will initiate the continuation of the timing discussion on the list. · DM – will write to list to with proposal as to how to deal with other comments. Notes (includes relevant text from chat): 1. Recap of last meeting David McAuley - No changes to SOI. Note regarding Reg Levy re mentoring. Due date for report on public consultation - since we will not make 29 March - proposing 29 May - comments? (none). New date is 29 May. SOAC nominating candidates for the panel - the IOT would be available to help them and we need this on our radar and we have to get to it sooner rather than later. Will initiate a discussion on the list. Decision – New date for posting report on public consultation will be 29 May 2017. Action Item – DM – Initiate discussion on the IOT supporting SO and ACs wrt selecting candidates for the IRP panel. Kavouss Arasteh - nominating panel members as per the Bylaws? David McAuley - correct. ICANN will release an Expression of Interest for panel members. Respondents will be split into two buckets of very qualified and others. Kavouss Arasteh - qualifications should include valid experience and qualifications in IRP. Hope ICANN will take this into account in rating applicants. Samantha Eisner - We are finalizing the EoI which we will validate with the IOT. To KA's point we are drafting to the specifications in the Bylaws and then will vet the applicants. SOAC's can add qualifications for the applications which could include the experiences mentioned by KA. Hope to have EoI to this group next week. 2. How start of time is calculated Malcolm Hutty - (presenting slides). Anyone on this call wishing to apply a moratorium on this? (none) David McAuley - would oppose this. Malcolm Hutty - the moratorium option should be set aside as there is no support for this (even if I found it an acceptable way forward). Samantha Eisner: Can we see what is on the "how long is allowed" before we conclude on this page? Kavouss Arasteh - Clarification of "not later than the latest" needs clarification. Malcolm Hutty - will fix, am certain the lawyers will come up with some appropriate wording, this is just concepts language. Sam Eisner - with this proposal are we removing any option for an absolute time limit? Malcolm Hutty - re fixed date - our legal counsel advised against this. Sam Eisner - could someone make a claim 5 years after? Malcolm Hutty - Highly unlikely 5 years would be used. Becky Burr: What do we mean by an "act" - Becky Burr: I think ICANN could adopt a policy that did not affect someone for 5 years Samantha Eisner: act could be implementing of a policy, or other acts as well Samantha Eisner: it doesn't have to be just the adoption Kavouss Arasteh - do not understand the difference between options 1 and 2. Malcolm Hutty - KA may be correct as there may be a tautology between these two. but the objective is to approve the concept and let the lawyers clean this up. Greg Shatan - We need both 1 and 2. If you have a house in the woods and it burns down on July 1st but you only go on August 1st so point 1 is July 1st, 2 is August 1st - and if you never go there - there should be a limit as to when you should of been aware (have a neighbour check on your house at least every six months). this type of language is standard legal language. We should also be clear on what we are talking about. Sam Eisner - 1 and 2 make sense and could be refined. As to ultimate repose we have a responsibility in that the IRP needs to create an environment of certainty and therefore this would argue for the need of repose. Kavouss Arasteh 2: We need to write a text which is understandable by everybody Malcolm Hutty - there seems to be consensus to the approach which needs to be refined by lawyers. SE is still bringing up repose - however our independent counsel has advised against this and there have been no public comments which support repose - quite the contrary. Samantha Eisner: I'm not clear of where that piece of advice from Sidely comes from Samantha Eisner: can you please re-circulate that to the group? Greg Shatan: I would change "no later than" to "on or before" -- avoides the "double later" Samantha Eisner: From what we can find on Sidley's advice, they noted that a one-year bar on claims could stand, and they provided other advice on the "facial invalidity" issue that we are no longer discussing Kavouss Arasteh - We need some sort of preamble for 1 and 2. also do not want to go to more than 90 days. Greg Shatan: 45 days is about enough time for the Empowered Community to order breakfast.... Greg Shatan: If it works for the EC, 120 works for me. Samantha Eisner: Greg, once there's a petition started, then there's appx a 60 day time to get from petition to community forum Kavouss Arasteh – If not other objections I can support 120 days. Malcolm Hutty - consensus of 120 days - no objections. Decision – 120 days accepted as a substitute for the 45 days proposed USP. Dave McAuley - the Timing issue should now move to the list. would like to use the remainder of the time to begin the discussion of Joinder (presentation of slides). Action Item – DM – Will initiate the continuation of the timing discussion on the list. Sam Eisner - we need to remember what we are writing rules about - this is about seeing if the Bylaws have been broken - this is not about re-litigating decisions that are in line with the Bylaws. Malcolm Hutty: In my experience, permission for joinder or intervention is held by the court, not by the clerk, so I would agree with granting it in this case to the IRP panel, not the PO David McAuley - will write to the list about moving forward with analysing the remaining comments. Adjourned. Action Item – DM – will write to list to with proposal as to how to deal with other comments. Decisions: · New date for posting report on public consultation will be 29 May 2017. · 120 days accepted as a substitute for the 45 days proposed USP. Action Items: · DM – Initiate discussion on the IOT supporting SO and ACs wrt selecting candidates for the IRP panel. · DM – Will initiate the continuation of the timing discussion on the list. · DM – will write to list to with proposal as to how to deal with other comments.

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SOAC Accountability group in CCWG WS2 - report for plenary 2nd reading, on 29-Mar-2017
by Steve DelBianco March 23, 2017

March 23, 2017

To our CCWG colleagues: Attached, for your consideration, is the report of the SOAC Accountability group of Work Stream 2, revised per comments at our first reading at the 10-Mar plenary in Copenhagen. Including: Clarify we are looking only at activities within ICANN, so we are not looking at NRO and IETF outside of ICANN. For best practices instead of saying”should consider”, we say "should implement, to the extent these practices are applicable and an improvement…” Suggest that future ATRTs may examine the extent to which best practices have been implemented. Recommend an optional mutual accountability roundtable at annual general meetings, at the option of SO/AC chairs. Add 5 examples of reasons to close a meeting to public observation Make best practices more consistent regarding meeting notes and minutes Add the dimension of diversity to outreach best practices. We have also attached a redline from version 1.0 to version 1.1 Our group looks forward to your questions and comments during 2nd reading on 29-Mar. Regards, Steve DelBianco, Cheryl Langdon-Orr, and Farzaneh Badii Co-Rapporteurs, SOAC Accountability Group, CCWG WS2

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 23 | 22 March 2017
by MSSI Secretariat March 23, 2017

March 23, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #23 – 22 March 2017 will be available here: https://community.icann.org/x/O6vRAw A copy of the action items and notes may be found below. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers [cid:image001.png@01D2A3BB.DE89CB70] Action Items: * GS – If no news on questions to ICANN Legal by Monday 27 March GS will follow up with them. * GS – Post link to tutorials on US court system. * GS – Initiate Review and Evaluation team for questionnaire. Notes (Including relevant parts of chat): 16 Participants at start of call 1. Welcome Greg Shatan - Changes to SOIs? (none). Audio Only? (none) 2. Review of Agenda Greg Shatan - No objections 3. Administration 3.1 Questions to ICANN Legal – Status Greg Shatan - ICANN Legal has acknowledged reception but has not provided the requested estimate yet (understandable vs ICANN58). If no news by Monday next week will follow up with them. Action item – GS – If no news on questions to ICANN Legal by Monday 27 March GS will follow up with them. 3.2 Hypotheticals document and “Influence of ICANN’s Existing Jurisdiction” document – Clarify that active work is suspended until ICANN Legal responds to the questions and the litigation review is complete, but the documents are still open for contributions. Greg Shatan - Restating this for any that were not on the last call. 4. Review of ICANN’s Past and Current Litigation (30 minutes) 4.1 Review of Sign-up sheet (document) Greg Shatan - Some new people have signed up. David McAuley: I will do two more cases - probably next week 4.2 Review of Summaries 4.2.1 Verisign, Inc. v. ICANN V2 – MW (document) Greg Shatan - skip given MW is not present today. 4.2.2 State of Arizona vs NTIA V2 - MW (document) Greg Shatan - skip given MW is not present today. 4.2.3 Ben Haim v. Iran…. – MW (document) Greg Shatan - skip given MW is not present today. 4.2.4 DCA v. ICANN - DM (document) David McAuley - (Presentation of summary document). Jurisdiction not a significant part of this case. 4.2.5 DCA V. ICANN – Appellate Court - DM (document) David McAuley - (Presentation of summary document). 9th circuit for this case. Jurisdiction probably not a major consideration in this case. Important to note that an IRP was active in the middle of these cases. avri doria: diversity jurisdiction: how does that work? i guess i can go look it up. Greg Shatan: I'll ask David to expand a bit on the diversity issue. avri doria: ie. how do multiple jurisdiction affect things in Federal cases? is that a significant thing in itself? Greg Shatan - DM could you explain the Diversity Jurisdiction court issue. David McAuley - by statute federal courts can hear state cases where the parties are different jurisdiction. The entry of ZACR ended perfect diversity Greg Shatan: Avri, the "diverse" citizenship of the parties is the basis of diversity jurisdiction. avri doria: is the litigant choice limited to US courts? avri doria: what kind of claims? being subject to a different set of laws? if i am the only one confused by the implications and what is allowed as a claim, i will go study up. avri doria: i think the degree to which there is flexibility on the claims an laws used may be a signification juridical factor in our work. thanks for the education. avri doria: Could they have gone, e.g., a court in Kenya to litigate? Kavouss Arasteh - All these courts in the US make this confusing for some of us. Would be appreciated if we could get a description how the system works. Second no such presentation for other cases. Have looked at some of these cases it seems that have been overly simplified. Greg Shatan - re KA questions we will present a summary for each case. As to over simplification we are focusing on jurisdiction. As to the first question a simple version there are 2 parallel systems Federal and State but both are ruled by the same laws. The Federal system has 3 levels the highest one being the US supreme court. Kavouss Arasteh: Greg, thanks,may you please provide a tutorial description of the legal jurisdiction process in USA David McAuley - re diversity jurisdiction for federal courts - in many cases they still apply state law. Greg Shatan - re AD question vs bringing case in Kenya - maybe -depends on many considerations. David McAuley: now that ICANN has an office in Kenya I think the answer would be yes - as of the date that office opened Becky Burr: agree with David, but isn't there an argument that the harm occurs in Kenya? David McAuley: fair point Becky David McAuley: At bottom, in the DCA cases I don't think jurisdiction is a paramount issue David McAuley: in fact the case is still ongoing in Cal. state court Kavouss Arasteh: Still the hierarchy of state court, Appeal court ,which usually at the same state , and when federal courts are called for and when supreme court would be involved are not clear Jorge Cancio (GAC Switzerland): perhaps we might need to look into forum shopping strategies employed regularly - in order to understand what jurisdictions are preferred by whom - depending on what is what your objectives are (an injunction in a specific territory; damages; blocking a decision... etc) Kavouss Arasteh: The relation between three layers in State courts, on the one hand, and federal court on the other hand and finally the role of supreme courts need to be further elaborated and documented Greg Shatan - re: KA will post some information on this. Action Item – GS – Post link to tutorials on US court system. avri doria: what i think is important to this group is the flexibility allowed in the current jurisdiction. be interesting to see if this is leveraged in any of the other cases. Kavouss Arasteh - why two entries for DCA. David McAuley 2: Greg gave right reason - but it was ICANN's listing of litigation is where the split occurred. 5. Questionnaire Update 5.1 Review and Evaluation Team - Update Greg Shatan - ICANN 58 overtook the evaluation team and we will have to get this started. Action Item – GS – Initiate Review and Evaluation team for questionnaire. 5.1.1 Team is responsible for updating the subgroup on new responses and their status at each meeting, as well as elaborating an evaluation framework for responses, for approval by the sub-group, based on the responses received. 5.1.2 Composition of the review team Greg Shatan - still looking volunteers if you have not done so yet. Erich Schweighofer: I will help in the questionnaire review. Tatiana Tropina: Greg, I already volunteered to help with the questionnaire review, can confirm again that I will help 5.1.3 Review Team – Next steps. 5.2 Status of current responses Greg Shatan - no new responses since February 22nd - this is not atypical. any questions? (none). Remind everyone should publicize it to their lists. 6. AOB (none). 7. Adjourn Decisions (none) Action Items: · GS – If no news on questions to ICANN Legal by Monday 27 March GS will follow up with them. · GS – Post link to tutorials on US court system. · GS – Initiate Review and Evaluation team for questionnaire.

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 23 | 21 March 2017
by MSSI Secretariat March 22, 2017

March 22, 2017

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #23 here; https://community.icann.org/x/M6vRAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [cid:image001.png@01D2A315.E70FD1A0] Notes (including relevant portions of the chat): 12 participants at start of call 1. Administrivia - Roll call, absentees, SoIs, etc Niels ten Oever - No apologies, no audio only, no update to SOIs. Short update on ICANN58 - we are under some time constraint. There was a meeting facilitated by the GAC WG on HR where Anita Ramastray was present offered UN support for the work for the sub-group after a cursory presentation of the Ruggie principles. Propose we ask AR and the UN wg on business and HR to give their feed back as part of the public consultation on our report (no objections) - will inform them of this. Any updates to agenda? (none). David McAuley: agreed to that approach 2. First reading (of two) of the Considerations document prepared by the drafting team Niels ten Oever - Ask the drafting team to walk us through the most recent version. Anne Aikman-Scalese - thank you for including my minority positions. description of meetings of the drafting team meetings in Copenhagen. David McAuley: why not parse them out by paragraph Tatiana Tropina: We changed the first para as well - in accordance with the comments from the previous call Niels ten Oever: Maybe we should start with reading out the first para (review of draft document - Consideration - new para 1) Greg Shatan - If and where we should put in something about NO CHERRY PICKING. It may make sense to put it in this para. Niels ten Oever - some text in Annex 6 of WS1 report seems to fit the bill. the last part of this could meet the requirements? "The CCWG-Accountability also disagreed with any attempt to single out any specific Human Right (such as “freedom of expression”) in the proposed draft Bylaw text on the basis that Human Rights cannot be selectively mentioned, emphasized, or applied since they are universal, indivisible, interdependent, and interrelated." Niels ten Oever: Human Rights cannot be selectively mentioned, emphasized, or applied since they are universal, indivisible, interdependent, and interrelated. Paul Twomey: Does the ICANN can choose approach leave it open to litigators saying you failed because you did not choose the instrument that I prefer? I don't have a solution for this I am afraid - should we ask the lawyers? Niels ten Oever - do not think this is an issue by have no issue asking the lawyers. David McAuley - tend to agree with PT. The text quoted by NTO have a problem with the word APPLIED. Also the obligation to respect is limited to those Internationally Recognized and per applicable law. matthew shears: agree with David on the above. One could of course just state that "Human Rights are universal, indivisible, interdependent, and interrelated." Kavouss Arasteh - Too many proposed modifications need to be included before we can consider this as a first reading. Need a new draft if we are doing this. kavouss arasteh: pls provide concrete changes Anne Aikman-Scalese (IPC): re Kavouss comment I believe it will be valuable to the group to reach a true full consensus. If not, we have to point out a lack of consensus and address the disagreed positions. kavouss arasteh: You started that on sunday ...consensus was reached?? Anne Aikman-Scalese (IPC): IN this regard, I have personal experience (and so does Avri) working to full consensus on GNSO SCI (when it existed.) Cheryl Langdon-Orr (CLO): yes Anne +++ kavouss arasteh: Greg, pls provide concrete proposal rather than describing the proposal Niels ten Oever: +1 but perhaps lets discuss this when we get to that part of the text? Anne Aikman-Scalese (IPC): @Kavouss - no I did not start this on Sunday. NOt at all. kavouss arasteh: Niels ,no. of intervention must be restricted not more than two Greg Shatan - A few thoughts vs PT comment - Applicable Law thing is very helpful here - if something goes beyond applicable law its going beyond the remit of the Bylaw. So not too worried about PT question. On cherry picking those instruments that fall within the Bylaw we cannot separate the elements in that instrument vs saying certain instruments apply or not. (reading second para of Considerations) Paul Twomey - edits proposed will be typed in chat. Paul Twomey: Change to "{However, with regards to the implementation of the Core Value, at least certain aspects of the UN Guiding Principles for Business and Human Rights, could be considered as a useful guide in the process of applying the Human Rights Core Value." Kavouss Arasteh - all proposals for change should be type in chat. Mathew Shears - As a member of the drafting team this discussion is useful. Proposed edits. Niels ten Oever: https://docs.google.com/document/d/1rDYyuXacrSYDtlSK5JqNQe7XOX2LbM86AzfDay8… Paul Twomey: I am concerned that the community does not draw the conclusion that we are signalling that the how guiding principles is potentially applicable - this I would think is a major mistake Anne Aikman-Scalese (IPC): Sorry I did not understand the proposed edit by Matthew. Paul Twomey: sorry I mean the whole guiding principles Cheryl Langdon-Orr (CLO): I for one am finding these brief explanations of both concerns with and rationale for the proposed text useful at this polishing stage, as well as the proposed edits to the text being made to chat or of course GDoc Paul Twomey - Worried that we would say that the Principles as a whole could be used. Would prefer we state that certain aspects of the principles. Cheryl Langdon-Orr (CLO): this is good refinement IMO David McAuley: I agree w/Paul avri doria: caveat ++ avri doria: why not. it is all the same, but sounds safer. Cheryl Langdon-Orr (CLO): correct @Paul "aspects" are good guidance avri doria: as it is something to be considered later in the light of circumstances at the time, indefiniate caveats really netierh add nor substract anything. avri doria: i am saying it doesn't matter at all. Anne Aikman-Scalese - comments from AD and SLO - importance to keep ASPECTS in the draft - and do not understand MS's proposal. Kavouss Arasteh - difficult to follow the proposals. Anne Aikman-Scalese (IPC): Thanks Avri - I think I misread your comment. matthew shears: I retract my proposed edit - apologies Niels ten Oever: "However with regard to the implementation of the Core Value at least certain aspects of the UN Guiding Principles for Business and Human Rights could be considered as a useful guide in the process of applying the Human Rights Core Value" Avri Doria - Like PT's proposal - good sentence. Cheryl Langdon-Orr - Re AAS point - I always like ASPECTS and I have been conssistent on this. Agree with AD and it is a good sentence. Think we are getting there. matthew shears: do we need the "at least"!?? Tatiana Tropina: now we don't Greg Shatan: We should take out the "at least" David McAuley: agree w Greg to take out 'at least' Niels ten Oever: If we say 'at least' then we're saying it can never be all Niels ten Oever: that would be in contention with the later sentence in which we say we don't analyze all Niels ten Oever: sorry, if we remove 'at least' David McAuley: I also agree that using adobe while live-drafting in GDoc is very hard to keep pace with. Greg Shatan: We should make sure to bring the language back in to the Chat as Niels has done. Paul Twomey: I could live with deleting at least But will leave to others Anne Aikman-Scalese (IPC): Agree with Cheryl and David Niels ten Oever: However with regard to the implementation of the Core Value at least certain aspects of the UN Guiding Principles for Business and Human Rights could be considered as a useful guide in the process of applying the Human Rights Core Value. Paul Twomey - GS, TT and MS are correct regarding AT LEAST. Greg Shatan - the AT LEAST causes waffling and could be considered and endorsement of the whole which would be beyond our consensus - Niels ten Oever: so it is a qualifying statement Niels ten Oever: That is a good point matthew shears: could does not qualify - it might it might not - which is appropriate Cheryl Langdon-Orr (CLO): that is a risk IMO @Tatiana as Paul notes it could be read to indicate a minimum requirement up to 100% ( shudder from me) Niels ten Oever - have removed AT LEAST since this seems to be the consensus. Niels ten Oever: However with regard to the implementation of the Core Value certain aspects of the UN Guiding Principles for Business and Human Rights could be considered as a useful guide in the process of applying the Human Rights Core Value. David McAuley: we need a medium Niels, thank you. Kavouss Arasteh - agree with removing AT LEAST. (last part of second paragraph of Consideration - as proposed by AAS). Anne Aikman-Scalese - comment made in the spirit of good clear governance. Request for Reconsideration and IRP will be avaialble for the community - this is good - but when considering policies there should be less severe mechanisms which would be less expensive but could provide resolution.So since the more formal mechanisms have been mentionned we should make efforts to encourage alternate mechanisms. Kavouss Arasteh - If this is a CONSIDERATION then we should not use MUST. Niels ten Oever 2: These bodies must also consider Human Rights grievance procedures to be implemented such as Request for Reconsideration and Independent Review Process as well as any less formal steps to be taken prior to the invoking of either of these more formal procedures. David McAuley: thanks Niels Anne Aikman-Scalese (IPC): Readily agree to replace "must" with "need" . Good suggestions David McAuley - support both AAS and KA points - this would make sense. Greg Shatan - Laudable goal - this is not the time, place or group to do this. As such this sentence should be removed. This could be a rabbit hole avri doria: remember to cross talk this to the ombudsman group if we go this way. Cheryl Langdon-Orr (CLO): yes essential if we do decide @Avri Tatiana Tropina: I am not comfortable with the words "must" and I agree with Greg. David McAuley: I would not object to removal matthew shears: I agree with Greg - I am uncomfortable for the same reasons David McAuley: also did not understand "more formal procedures" Erich Schweighofer: Agree with Greg. Cheryl Langdon-Orr (CLO): agree Niels ten Oever - seems there is support to remove this text. I will re-circulate a new draft this week. Adjourned.

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Notes, recordings and transcript for Ombudsman Subgroup Meeting #18 | 20 March 2017
by MSSI Secretariat March 21, 2017

March 21, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Ombudsman Subgroup Meeting #18 – 20 March 2017 will be available here: https://community.icann.org/x/sbHRAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [cid:image001.png@01D2A265.68BB07D0] Action Items: § Lars Hoffmann to provide draft questionnaire for sub-group review later this week. § Lars Hoffman to distribute final list of interviewees to sub-group when it becomes available. Notes (including relevant parts of chat): 12 Participants on call including evaluator. 1. Roll Call / Apologies – Welcome Sebastien Bachollet - (review of agenda, no objections or additions) 2. Participation & Dashboard Sebastien Bachollet - (review of participation and dashboard entry). 3. External review of the ICANN Ombuds Office a. Feedback from CPH ICANN58 by Cameron Ralph LLC Debra Russel - Time in Copenhagen was very valuable. Met with 15 interviewees with significant variation in views. Good that some had used Ombuds office. Also, spent time with current Ombudsman. Have yet to talk with ICANN Legal and the previous Ombudsman and this should be arranged shortly. Next stage will be a survey to the community - working on producing this now. Also, starting to produce our thoughts so far. Lars Hoffmann - Will be talking with the evaluator later this week and will complete the list which we will share with this group. As to the questionnaire we are working with the evaluator and would ask everyone here to distribute to your contacts as this is most effective. Asha Hemrajani - Good DR to speak with the previous Ombudsman. Also, recommend reading Frank Fowley's PhD thesis and also talk with him. avri doria: i do not recommend putting all that much credence in Dr. Fowlie himself, but the thesis is good. Asha Hemrajani: @Avri I don't know him at all but yes the thesis is definitely worth a read. avri doria: I knew him well and would never have brought an issue to him. avri doria: he became quite partisan and showed one of the liabilities of an ombudsman becoming part of the community he served Herb Waye Ombuds: here is the document if anyone is interested Herb Waye Ombuds: https://www.icann.org/en/system/files/files/blueprint-for-evaluation-of-an-… b. Overview of which Community members the Independent Assessors spoke to Sebastien Bachollet - (review of list per presentation). Lars Hoffmann - Once we have the list will review to see we have good representation. c. Gather feedback from the Subteam on who should still be reached out d. Discuss timeline for survey, and other mile stones Lars Hoffmann - The timeline still seems to be holding. Understand WS2 may be extended - if this is the case we should review the impact of this with this group. e. Draft survey on Thursday, 23 March, 23:59 UTC? Lars Hoffmann - Hope to have a draft to this group mid late this week and hope to publish it early next week. Have reached out to translation and will produce it in French and Spanish also - and will also translate any freeform responses for evaluators maintaining confidentiality. Cheryl Langdon-Orr (CLO): thanks Lars Asha Hemrajani: Makes sense Lars Asha Hemrajani - dates for survey? Lars Hoffmann - not yet released but there are some constraints so not comfortable providing a date yet. would be useful knowing when the sub-group can approve it. Sebastien Bachollet - we would hope to approve it at the next meeting (27th) at the latest. 4. ICANN Complaints Office Sebastien Bachollet - just ensuring we are all on the same regarding this - even those who have not travelled to Copenhagen - no questions. 5. Next meeting a. #19 Monday 27 March 2017 1300UTC 6. AOB Herb Waye - At a later meeting would like to talk about the new role I have taken on as the anti-harassment officer. Sebbatien Bachollet - Agree - still looking for the Board resolutions from Copenhagen. We will need to have a discussion on this. avri doria: has the final harassment policy been published yet? Sebastien Bachollet - good question - nothing seems to be published yet. avri doria: was fascinating to watch the board approve it though no one had seen the final product. do not even know if any comments were taken on board and were not able to comment in the forum. very strange. Asha Hemrajani: Yes the public comments were taken into account. Avri Doria - Uncertain how relevant it is to our work. Board Approval was a Strange Event. Cheryl Langdon-Orr (CLO): indeed Avri Asha Hemrajani: Comments from the public comment period I meant. avri doria: Asha, hard for us to judge. Asha Hemrajani: @Avri, understand your point. Will check & revert. Herb Waye Ombuds: I don't recall it coming up at the Public Forums Asha if that is what you meant Asha Hemrajani: @Herb, no that is not what I meant. avri doria: Herb, hope you have a copy. Herb Waye Ombuds: I have a draft, I did not compare it with the final product but I will Asha Hemrajani: @Avri we also had a public board session on Saturday to discuss the resolution. That recording should already have been made available already Sebastien Bachollet - please provide input vs overlaps with other WS2 sub-groups. Adjourned. Decisions – none

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CCWG-Accountability-WS2-Plenary-20170329 13:00 UTC - Reminder
by Bernard Turcotte March 20, 2017

March 20, 2017

All, This is simply a reminder that the next CCWG-Accountability-WS2 plenary will be held Wednesday 29 March 2017 13:00UTC. All sub-groups wishing to present documents for consideration by the plenary at this meeting should forward them to the list no later than Wednesday 22 March 23:59UTC. Bernard Turcotte ICANN Staff Support for the CCWG-Accountability WS2

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TR: ATRT-3 scope - views from the GAC
by Mathieu Weill March 20, 2017

March 20, 2017

Dear Colleagues Please find below for your information a response from the GAC Chair regarding the scope of ATRT3. Best Mathieu From: Olof Nordling Sent: Thursday, March 16, 2017 5:01 PM To: Larisa B. Gurnick <larisa.gurnick(a)icann.org> Cc: gac-leadership(a)icann.org Subject: ATRT-3 scope - views from the GAC Please note and share the following message from the GAC Chair: Dear Larissa, Noting that the ATRT-3, once established, will have the option to modify the scope of the review, the GAC finds it of doubtful value to formally limit the scope of the ATRT-3 prior to its formation. The GAC also notes that work potentially envisaged by the ATRT-3 may overlap with activities in Work Stream 2 of the CCWG-Accountability. As a consequence, and to ensure efficiency, the GAC finds it appropriate for the ATRT-3 to consider such potential overlap situations when reviewing the scope and in planning its activities. Best regards Thomas Thomas Schneider Chair ICANN Governmental Advisory Committee (GAC) ----------------------------------- pp/ Olof

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