- Accountability-Cross-Community

Proposed text to add to public comment document
by Robin Gross April 30, 2015

April 30, 2015

As requested in our call today, below is proposed text for various parts of the draft public comment document. Section 4 P. 18 under "Headquarters" Strike the last sentence add the end of the paragraph since often times parties are required to waive their rights to pursue their legal rights in a court of law against ICANN, so the final sentence is not accurate about the reality for many. P. 18 under "Accountability and Transparency Review Teams..." Add sentence at the end of the paragraph: "ICANN is still in the process implementing all of the ATRT recommendations." The last three headlines on p. 19-20 should be deleted. The "board of directors documentation" policy is a subject of much controversy, which this group has not yet delved into, but will in WS 2 and this text seems misleading. The "general ICANN operational info" headline sites the DIDP, which is really a "don't disclose" policy, so putting this in here is misleading the public. The "ICANN board selection process" headline / assertion as an accountability mechanism seems to be desperately reaching in that assertion and it certainly isn't anything this group discussed and passed judgment on. These last three PR headlines in section 4 should be removed. Section 6.2 p. 24 - change "ICANN remains accountable" to "ICANN is accountable". p. 25 - delete phrase "Regulation of content is the role of a sovereign". That's a debate we never had. Section 6.5 p. 46 under "Introduction" add: The CCWG proposes a number of key reforms to ICANN's Request for Reconsideration process, whereby the ICANN Board of Directors is obliged to reconsider a recent decision or action / inaction by ICANN's board or staff, and which is provided for in Article IV, section 2 of ICANN's bylaws. The key reforms proposed include: the scope of permissible requests has been expanded to include board/staff actions or inactions that contradict ICANN's mission or core values, and the time for filing a Request for Reconsideration has been extended from 15 to 30 days. Additionally, the grounds for summary dismissal have been narrowed and the ICANN board of directors must make determinations on all requests (rather than a committee handling staff issues). Another proposed change is that ICANN's ombudsman should make the initial substantive evaluation of the requests to aid the Board Governance Committee in its recommendation, and then requesters are provided an opportunity to rebut the BGC's recommendation before a final decision by the entire board. More transparency requirements and firm deadlines in issuing of determinations are also proposed. p. 50 under "Question", add 2 questions: "Are the timeframes and deadlines proposed herein sufficient to meet the community's needs? Is the scope of permissible requests broad / narrow enough to meet the community's needs?" Section 6.6.1.1 p. 51: edit b) as follows: "Under the designator model, two of the six powers that the community seeks (veto of budget and strategic plan) would require more difficult enforceability provisions than under the membership model, according legal counsel, although they could be created. The other community powers sought herein regarding community approval of bylaws and board removal present no enforcement barriers under the designator model; however given the enforceability concerns on two desired powers, it is advised that the membership model creates the tightest control on the ICANN board by the community. In preparing for the environment that emerges following the end of the post-NTIA contract, our task as a CCWG is to strengthen ICANN's accountability, not to allow it to be weakened. So the status quo is not an option and the community should select either a true membership model or an empowered designator model to achieve that accountability." p. 51 edit d) 4) as follows: "Our legal advisors are clear that under California law through this structure, there would be no material increase in the risks and liabilities individual ICANN participants face today" p. 52 edit (f) as follows: "Designators are a construct in California law that can achieve reliable enforcement of 4 of the 6 community powers sought, specifically with respect to community approval or blocking of changes of bylaws and the selection and removal of board members. There is concern however, regarding the ease and reliability with which the other 2 community powers sought (approval of budget and strategic plan) can be enforced once created under the designator model, according to legal counsel. Legal counsel further advises that the SOs and ACs organize themselves into unincorporated associations in both corporate governance models, whether a designator or membership structure." p. 52 edit (i) as follows: "Because, according to legal counsel, the membership model provides the tightest control of the ICANN board by the community regarding the six community powers explicitly sought by the CCWG, it has been suggested as the Reference Mechanism by the group. Section 6.6.1.2 p. 54 add to end of (f): "It is therefore more closely aligned with the existing structure of ICANN and in keeping ICANN rooted in the private sector." Section 6.6.2: p. 55 under "Question" add: "Would it better to focus on ensuring community input is duly taken into account in the development process leading up ultimate adoption of the budget or strategic plan by the board?" Section 8: p. 95 under "Recommendation", edit text as follows: "The CCWG recommends that the Board adopts a transitional article in its Bylaws which would commit ICANN to confirm the CCWG recommendations, and task the group with creating further enhancements to ICANN's accountability including, but not limited to the following list of issues (see below)." p. 95 under "Items for WS2": - Agreed previously to add: Enhancements to ICANN's whistle-blower policy. - Suggest to add a review of ICANN's conflict of interest policy as that is a key transparency mechanism. - I have no idea what is meant by the first item in WS2: "Enhancements to ICANN's accountability based on the law(s) applicable to its actions;" Maybe just a one sentence explanation would suffice. That's all for now, folks! Thanks! - Robin -----

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Notes-Recordings-Transcript links for Legal Subteam Meeting #14 29 April
by Brenda Brewer April 30, 2015

April 30, 2015

Dear All, The notes, recordings and transcripts for the Legal Subteam #14 - 29 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52898035 Action Items Action: Leon, check if Sam's questions answered by counsel. Action: check reference mechanism is defined in the document Action: Robin and Greg draft text on these clarifications, to provide suggested wording. Notes 1. Welcome and roll call Roll call: Sam Eisner on the phone 2. Discussion on suggested text by Robin and Izumi on point 6.6.1. Comments from Jordan on 6.1.1.1 Jordan's text. point 4. Legal advisors. No increase in risk ICANN participants face Q. What are the risks. and are participants covered. Becoming a UA may highlight those risks. What are they? Raise when Counsel present in second part of the call For discussion with counsel, review now so we can ask more specific questions/examples. Concern about financial risk, legal risks and liabilities, but also need to think about the internal risks to ICANN. examples of the internal risks: relationships between the groups, how the switch to member model impacts that. Member statues and his they work. Individual members are granted rights under the statue that are hard to modify. And we have the community consensus based actions, and there are other rights that are not limited by community actions. Some unintended rights. And request more information from Counsel. Support for Jordan's draft. Izumi agreeing to the text. Does what we have proposed reflect their advice? And does it reflect the strength of their advice? Reference model/mechanism. has it been defined in the report. Our primary model in the proposal. Action: check reference mechanism is defined in the document Designator model, and the powers regarding budget and strategic plan. Received advice that would have problem delivering these two powers Enforce has some ambiguity in the document. Some refer to is it valid, and some whether can cause a change a control. Some varied use of the word enforcement throughout the document. Legal counsel again and again say it is the enforceability of these two issues that is causing us to accept the member model. Member model because this is how we enforces these two issues. Action: Robin and Greg draft text on these clarifications, to provide suggested wording. And input from counsel first. Including on the meaning of enforceability. Status quo. Some may argue that it is a designator model. If discuss why the status quo why not preferable to an explicit designator model or member model. And why. Explaining that they can take on some of the attributes of the designator model. Explain to the community why we made these decisions we did, bring them along so that if they follow our line of agreements they end up with the same conclusions. Some duplication about NTIA, from paras 2 or 8. And leave the rest in to explain our rationale. 3. Review of questions pending answers Pedro, Jorge's questions are pending. Sam's questions: will check that the answers received. Action: Leon, check if Sam's questions answered by counsel. Eberhard Lisse's questions about the legal basis for the USG claim on the root. Was reviewed by the sub-team on a call of April 8. And not considered on topic. Since on the list, Becky Burr has given a comprehensive answer. Leon, speaking as a member to chair, said he feels out of scope. Do people have comments? Out of scope. Does not affect ICANN accountability. And likely not germain to CWG. Out of scope for the expertise of the legal counsel engaged. A distinguished panel might be able to inform, for example Milton Mueller. But this beyond the scope Unfortunate that Dr. Lisse has not been able to join the call to explain why the question is fundamental and in scope. His comments would have been very welcome. To bring to a close, suggestion for a definitive conclusion on the record as a decision of the legal sub-team. Is this out of scope for the CCWG. Please signal with a green tick. Decision: the group indicates out of scope. 4. Discussion on implementation of the CCWG draft report Any comments wrt to the general CCWG report and legal issues? 5. Discussion on overall draft document for public comment Confirmation - can we have SO and AC and the NomCom as unincorporated with different powers, including as zero votes.? 6. Discussion with lawyers Para 7 of the document (from Jordan) in the AC room. The level of certainty around the powers designators can have and can they be enforced. And do we currently have a designator system? Do we need to take on UA which take on some of the characteristics of the SO/AC? We adopt this model because it brings these additional 2 powers. Walk the community through our thinking that of the 6 powers 2 are tricky under the designator model. Advice is that if you want a true and robust designator model you need to be a legal person. And under the status quo it is hard to label under corporate law, they lack the rights associated with a designator model. If want to avoid the difficulties of UA, then will end with a weak model, and unenforceable. The member model provides the clearest path to the mechanism we want to put in place (not control of the board) Under current bylaws, could the So AC remove their Directors as designators, could it be enforced? Not clear how a court would respond. Would have to convince a court that you had the powers. SO/AC not legal persons, so who would go to court? Directors and Officers have standing, they could make the argument before the court, so would need to persuade a director or officer to go to court. Current SO/AC. Can we revise the bylaws to make them more like designators? Yes, can do that. But to give them the powers need to be UA. The bylaws and fundamental bylaws, remove directors and while board (with some contract) Possible. But the power to reconsider/reject the budget and strategic plan only though member. And would create some issues for the IRP. If these two powers are desired, then the member path is how to archive this. Summary chart of powers will be included in the document. If the GNSO names a director, conceivably the board might say you don't have the power to do that? If the bylaws amended to say SO/AC have recall powers, the director can refuse to stand down saying lack of enforceability under CA law. These types of issues are examples of what the powers protect against and the mechanisms allow. Do we have to create UA to archive all these powers? What can be achieved if not created as UA? "powers" Lawyer will say how to enforce. But if, as under the current bylaws, you make rules that people agree to follow, but are not enforceable, then that is fine. But, there are some powers that would not be legal. Cannot take away from the board decisions related to its fiduciary duty, such as budget and strategic plan (inaudible) Naming a person to represent. as a middle ground approach (check AC at 1:18) Suggestion for the CCWG report. does a member of the SO implicitly be member of the unincorporated association. Some have comment that govt may struggle in this regard The law requires at two persons associate. once beyond that, law says that the entity can create its own rules about who is part of it. Who can join, Can allow any mechanism for the people to associate with the association. And these can be as loose or tight as you wish. Suggestion is to take whatever is in the current bylaws. Just piggyback in that. The articles of association just point to that. But do need to persons to become part of the unincorporated association. Would it be possible to have a ccTLD participating in the decisions of the ccNSO but not consider a member of the UA. The UA can make its own rules. It does not require you consider them a member Could, it be disregarded in litigation outside CA. unincorporated association vary a lot even within the US. In all 50 US states, unincorporated association are not novel, and can sue or beside. And CA has pretty robust protections from liability. In the US it could sue and be sued in the US. Outside the US: significant work to research this. Most who need to rely on the protections will never set foot in the US. March 18 memo from Sidley. However... a number of non US jurisdictions do not recognize unincorporated associations and loom thru the UA at the individuals as having liability Context: about the transition. Issue here, how to give power to the community vis a vis the board/ICANN. That issue governed by CA law. >From a stress test issue. What statutory given rights given to an individual member, and how are they balanced against community rights. How are they constrained. Do individual members have controller the affairs of ICANN. Exposure in other countries If you want to bring an action against ICANN need to be in a jurisdiction where it has an office. Could look at the 7 countries where there is an office and see how they would resolve the choice of law question On the rule decision issue. Should it extend to other law or only relate to the bylaws Out sourcing the IRP panel, to the ICC etc. Might be outsourced as a secretariat function. Lawyers can suggest language. Standing, people need to agree on accepting the arbitration. Geographic diversity, but no specification of the location. Will it be virtual, or based at an office location. Q. can we have SO and AC and the NomCom as unincorporated with different voting powers, 5:2, 4:2, 4:0 etc. Feasible? Voting on what (e.g. a petition) Differential voting power - yes. proposed that each member would be sole class of member. And each would have a set number of seats. And they don't come together to do that. How long to implement UA and have in place. Once docs drafted it can be a quick process and can help with the document drafting Greg and Robin to provide clarifying text? Yes END

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Notes-Recordings-Transcript links for Call #30 - 30 April
by Alice Jansen April 30, 2015

April 30, 2015

Dear All, The notes, recordings and transcripts for call #30 - 30 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52896621 A copy of the notes and action items may be found below. Thanks, Best regards Alice ---- ACTION ITEMS (see details in notes) ACTION ITEM: Read executive summary AGREEMENT/ACTION ITEM: Add SO/AC membership model to Reference mechanism when we refer to the model in the document (executive summary). Clarify "reference mechanism" in glossary/definitions section. Ensure it does not prejudice final outcome of CCWG deliberation ACTION ITEM - Remove sentence on p. 6 paragaph 16 and specificy IANA functions on p. 11 ACTION ITEM - Check CWG parts to make sure we do not make changes to CWG work ACTION ITEM - Specification 1 to be removed (WP2) ACTION ITEM – Capitalize mission ACTION ITEM - Add clarifying sentence drawing specific attention to Sebastien's comment so that community can react as needed. ACTION ITEM - Becky to look at paragraph 95 and 99 requests for changes ACTION ITEM - # paragraphs ACTION ITEM - Remove "private sector" reference ACTION ITEM: Greg to point to specific section and suggest language. ACTION ITEM - Remove"tabled" in paragraph 178 p 40 ACTION ITEM - Add clearer specifications (beyond legal firm memo) in appendix on SO/AC membership ACTION ITEM - Remove "2 alternatives" ACTION ITEM - Jordan and Sebastien to discuss 2.6.4 edit offline. ACTION ITEM - Paragraph 262 edit to be made. ACTION ITEM - Align with CWG specifications ACTION ITEM - Review paragraph 349 ACTION ITEM - Refine timeline language on second comment period ACTION ITEM - Delete 695 ACTION ITEM - Clarify on timeline and in report that 19 June meeting is confirmed. ACTION ITEM -Insert paragraph into public comment period announcement to explain why we are not using standard 40-day comment period and clarify that it is an exception. ACTION ITEM - Provide feedback on Xplane slides by Saturday, 2 May - 23:59 UTC ACTION ITEM - CoChairs/staff to circulate new iteration of report that captures legal counsel feedback (18:00 UTC) and edits received on Thursday, 30 April by 23:59 UTC. The deadline to send input on the version to be circulated today is 1 May - 23:59 UTC. ACTION ITEM – Share engagement plan early next week ACTION ITEM - Staff and Cochairs to start planning for before/after presentation --- NOTES These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. 1. Welcome, SoI, Roll Call Reminder: please complete your SoI on the wiki and contact staff if you need any assistance. 2. Review of Changes Sections 0 & 1 We have tried to incorporate all the changes that were made on Tuesday but please check your comments have been adequately reflected. We also ask that you speak to relevant section(s) of report for everyone to follow. The executive summary outlines the essence of what we have been working on. It sets the scene for the community. ACTION ITEM: Read executive summary 1-5 were moved to appendices - a summary was plugged into the report to provide the reader with context (section 1) Feedback: - We refer to the preferred community empowerment mechanism as reference mechanism. Instead of saying reference, clarify that it's the "membership model". - What does reference mechanism mean? There is no definition. --> We haven't moved any option - hence the wording "reference" - Membership model as an alternative might lead to confusion to some who might not read our report carefully about who the members would be. This would raise question of whether ICANN should have members or not. We could call it "SO AC Membership Model" - We should introduce both "AC/SO Membership Model" / "AC/SO Designator Model" --> Usual order is SO/AC - If we change wording, keep in mind that it is a reference, not a preference. - Recommendation to delete sentence on page 6 paragraph 16. --> Only SO/ACs would have member - paragraph 11 – clarify IANA functions - Should we cross check IANA functions and separability? --> It is not specifically an AoC review AGREEMENT/ACTION ITEM: Add SO/AC membership model to Reference mechanism when we refer to the model in the document (executive summary). Clarify "reference mechanism" in glossary/definitions section. Ensure it does not prejudice final outcome of CCWG deliberation ACTION ITEM - Remove sentence on p. 6 paragaph 16 and specificy IANA functions on p. 11 ACTION ITEM - Check CWG parts to make sure we do not make changes to CWG work Section 2 - Law firms working on line edits and remaining questions that will be sent within 24 hours. --> Legal "sanity check" - Comment made that we want IRP to be available for other claims: breach of fiduciary duty for example. Thoughts? - Suggestion to reflect Becky's proposal in report Feedback:: - p 17 para 56 - good addition but we need to strike consensus policies. Para 60: too much constraint is being put on ICANN - we want a multistakholder organization and will end up with dead multilateral organization due to constraints ACTION ITEM - Specification 1 to be removed (WP2) - Para 60 - ICANN's mission is defined and cannot change without decision - Legal terminology needs to be fleshed out - Capitalize mission. There are well-defined missions at start of Bylaws - as longer as interpreted in same way of Bylaws, no problem. We need to be aware of interpretation ACTION ITEM – Capitalize mission ACTION ITEM - Add clarifying sentence drawing specific attention to Sebastien's comment so that community can react as needed. We plan to issue an updated version of this document as soon as possible after the call and will give the group the opportunity to go through the document for at least 24 hours. Comment will be invited: by 23:59 UTC on May 1. After that we will check for consistency, add final touches but will not edit content for final comment. --> Suggestion to wait for lawyers' edits - paragraph 95 - Change sentence to reflect diveristy of internet. paragraph 99 add "and its users" ACTION ITEM - Becky to look at paragraph 95 and 99 requests for changes Sections 2.6 Input from legal is coming. SO/AC membership model will be reflected. ACTION ITEM: # paragraphs Difference between recalling entire Board and removing individual Directors has been reflected. Feedback: - "rooted in private sector" objection - ICANN has had involvement with governements and users - roots are just as deep. Claiming that it is because ICANN is rooted in the private sector is incorrect --> Alternative A - Rational: more closely ICANN to existing structure and keeping ICANN in private sector. Suggest moving text in yellow to D. --> Suggestion to remove "and in keeping ICANN rooted in the private sector" ACTION ITEM - Remove "private sector" reference - We need to clarify in document 1) with regard to creating unincorporated association: SO/AC would not become UA and lose current identity but would create UA that would be alter ego of SO/ACs used to exercise functions; 2) Each SO/AC will be a separate class of member - If all members are in same class then right to spill Board is right of majoriy of member but if each in separate class we can have a higher threshold. ACTION ITEM: Greg to point to specific section and suggest language. - Language in 2.6.1.1 - 4C - will clarify language. - #178: what is intended by "tabled" - does it mean issues explicitely raised? ACTION ITEM - Remove"tabled" in paragraph 178 p 40 ACTION ITEM - Add clearer specifications (beyond legal firm memo) in appendix on SO/AC membership - Paragraph 163 p 36 - We are talking about current structure. Specify that it's not meant to be that we won't evolve structure. - Paragraph 169 p 38 - 2 alternatives will be 4 solutions ACTION ITEM: Remove "2 alternatives" - 2.6.2: paragraph 174 Current planning to set up budget is very tight - we need flexibility on timing. Paragraph 175: open financials --> Timing is implementation detail. Financials is also WS2. --> Ask for feedback on this. ACTION ITEM: Jordan and Sebastien to discuss 2.6.4 edit offline. Section 2.7 Paragraph 262 p50: decision to approve is subject to challenge ACTION ITEM - Paragraph 262 edit to be made. - Mismatch between CWG to have review fundamental and CCWG point that standard. --> p55 - periodic review of IANA functions - paragraph 326 we have verbatim of CWG comment that it be a fundamental Bylaw. ACTION ITEM - Align with CWG specifications Section 3 Management abstract conclusions and how to apply stress tests have been added along with a handful of small edits. Feedback: - Paragraph 349 text incorrectly pasted ACTION ITEM - Review paragraph 349 Section 4 Item added: enhancements should be made to ICANN's whistle-blower policy Section 5 Significant changes have been added. Timeline has changed - https://community.icann.org/download/attachments/50823981/R-CCWG_timeline_v… . We have incorporated aspects that were described on Tuesday. Input on Bylaws approval was received and included. Feedback: - "only as required" - understanding that we would use second comment period to hammer out some of the details. We won't be putting out new issue. Make sure the text does not preclude ability to hammer out details. ACTION ITEM - Refine timeline language on second comment period - P88 paragraph 695 - No need for representative to speak for SO/ACs - reword so that it does prejudice that decision. --> 696 replaces 695 ACTION ITEM - Delete 695 - Have timeline in Word document - We are having meeting on 19 June - not intensive meeting. ACTION ITEM - Clarify on timeline and in report that 19 June meeting is confirmed. - Legal counsel presence requested at 19 June meeting Section 6 16 questions and IRP questions have been moved to a separate detailed appendix I Questions will be in a document for comment period: easier to provide/collect input - Specify in report that shorter comment period and second comment period and apologize. ACTION ITEM - Insert paragraph into public comment period announcement to explain why we are not using standard 40-day comment period and clarify that it is an exception. - Suggestion to have the 40-day comment period. --> If we go to 40 responses will arrive on June 14 and we won't have time to review by Buenos Aires and have next steps discussion - Consider 40 days for second comment period - This work will impact future of ICANN - we don't have to rush. --> Intersessional meetings are hard to achieve. This would push the timeline even further. - There used to be rule that documents need to be published a certain amount of time before meeting. --> That rule is still in place - analysis of comment will inform Buenos Aires discussion. 3. XPLANE material presentation and discussion This proposal is in draft mode. 2 sections: 1) empowered community overview and details of individual powers; 2) improved IRP. This represents overview of empowered legal structure - it answers 1) what is it; 2) how does it work; 4) who gets to vote; and 5) how is it exercised. Key elements of community powers are described. Surfacing key elements of IRP that are new including details of new IRP panel, process flow of IRP, decision characteristics of IRP decisions. ACTION ITEM - Provide feedback on Xplane slides by Saturday, 2 May - 23:59 UTC Feedback: - It will help us to explain mechanism to our communities. Is this meant to be part of the report? --> Tool to help community understand our work - appendix to report --> Facilitate understanding of what we have been doing. 4. Next Steps We will be getting legal counsel's feedback today at 18:00 UTC. In the meantime, we welcome editorial comments on the version of report we have so far. We will strive to provide updated version including legal updates and any other updates received by 23:59 by April 30 to give final check for review. Deadline will be 23:59 UTC May 1st for final comment at that point will turn into mode to provide document for public comment on Monday. ACTION ITEM: CoChairs/staff to circulate new iteration of report that captures legal counsel feedback (18:00 UTC) and edits received on Thursday, 30 April by 23:59 UTC. The deadline to send input on the version to be circulated today is 1 May - 23:59 UTC. We will circulate graphs from Xplane to the list - comments invited on whether graphics reflect proposals accurately and do not create misleading impressions. We invite you to send feedback on Xplane graphics by Saturday, 2 May - 23:59 UTC so that we can issue graphical explanations simultaneously We are also working on translation - hopefully we will receive them asap. We will start planning webinars with community and will put together engagement plan on Monday. ACTION ITEM – Share engagement plan early next week Request to include a before/after approach. --> Before or after will be not be ready for Monday but staff and Cochairs to start planning for before/after presentation ACTION ITEM - Staff and Cochairs to start planning for before/after presentation

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Re: [CCWG-ACCT] XPLANE slides from CCWG meeting April 30
by Adam Peake April 30, 2015

April 30, 2015

Hi everyone, XPLANE are updating the graphics to reflect what they heard on the call and on reading the updated report. Any comments you have now or in the next day or so will be considered immediately. Jorge, your request in the chat "so far existing structures are being improved or complemented a before/after approach would be of use². We noted your earlier comment about a before and after graphic and XPLANE is working to capture that. The elements are a little more complex, and may rely more on the final version of the report we publish for public comment. It will be completed next week rather than for the report launch period, but it's a work in progress, thanks for the idea. Best, Adam -----Original Message----- From: Adam Peake <adam.peake(a)icann.org> Date: Thursday, April 30, 2015 at 2:57 AM To: "accountability-cross-community(a)icann.org" <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] XPLANE slides from CCWG meeting April 30 >Hi everyone, > >The slides XPLANE presented during the meeting are attached. > >Best, > >Adam > > >

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XPLANE slides from CCWG meeting April 30
by Adam Peake April 30, 2015

April 30, 2015

Hi everyone, The slides XPLANE presented during the meeting are attached. Best, Adam

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Re: [CCWG-ACCT] [Acct-Legal] Nomcom as a UA - legal question
by Avri Doria April 30, 2015

April 30, 2015

Hi, Thanks. Had not seen the document. Very helpful. avri On 30-Apr-15 00:14, Gregory L. Colvin wrote: > > For the Legal Sub-Team, our two law firms have discussed how to answer > Ms. Doria’s questions in a way that opens up two options: > > > > (1) treating the NomCom as an unincorporated association, acting as a > designator, appointing directors to the Board, and > > > > (2) treating the NomCom as a Delegate Council, not as an entity but as > an internal ICANN process by which delegates from statutory members of > ICANN plus non-voting delegates from other stakeholders collectively > elect directors, much as they do now. > > > > The removal process could be virtually the same under either option. > > > > Moving to the Delegate Council option, however, does require attention > to the future role of the Internet Engineering Task Force (IETF), > which presently has a voting delegate on the NomCom. > > > > Best regards, > > Greg Colvin > > > > Gregory L. Colvin > > Adler & Colvin > > 235 Montgomery Street, Suite 1220 > > San Francisco, CA 94104 > > Tel: 415-421-7555 x.211 > > Fax: 415-421-0712 > > email: colvin(a)adlercolvin.com > > www.adlercolvin.com > > > > The information in this e-mail message and any attachments may be > privileged, confidential, and protected from disclosure. If you are > not the intended recipient, any use, dissemination, distribution, or > copying of this transmission is strictly prohibited. If you think > that you have received this e-mail message in error, please e-mail the > sender at colvin(a)adlercolvin.com, and delete all copies of this > message and its attachments, if any. Adler and Colvin is a San > Francisco Green Business certified by the City and County of San > Francisco. Please consider the environment before you print this > email. Thank you. > > *From:*ccwg-accountability5-bounces@icann.org > [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *List > for the work of CCWG-Accountability Legal SubTeam > *Sent:* Friday, April 24, 2015 3:55 PM > *To:* Avri Doria; ccwg-accountability5(a)icann.org > *Cc:* accountability-cross-community(a)icann.org > *Subject:* Re: [Acct-Legal] [CCWG-ACCT] Nomcom as a UA - legal question > > > > Avri, > > > > I am forwarding your question to the Legal Sub Team list. > > > > Greg > > > > On Fri, Apr 24, 2015 at 6:51 PM, Avri Doria <avri(a)acm.org > <mailto:avri@acm.org>> wrote: > > Hi, > > I am confused as to how this works. Please forgive my questions. > This has less to do with the proposal I made then with trying to > understand the nature of a UA. I had not realized until yesterday > that the membership model was as popular as it has been defined to > be. I had also not realized that we were down to membership or > designator model as our only choices until today. > > What qualifies the Nomcom as an association? It can't be the people, > as there is no continuity, except among the staff. and some overlap > in chairs as last year's chair, this years' chair and next year's > possible chair, sit togehter each year. I guess that is a bit of > natural person continuity. Is that chair thread significant? > > Or is that it is always formed according to same bylaw, even if all of > the people are different, that is a qualifying mark? Is being a > differnt instantiation of the same process sufficient to define a UA, > even if there is no continuity of natural persons? > > > thanks > > > avrl > > Note: I would have sent this to the legal list, but i never managed to > get subscribed that one as far as I can tell. > > ------------------------------------------------------------------------ > > Avast logo <http://www.avast.com/> > > > > This email has been checked for viruses by Avast antivirus software. > www.avast.com <http://www.avast.com/> > > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com

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Re: [CCWG-ACCT] [Acct-Legal] Nomcom as a UA - legal question
by Jordan Carter April 30, 2015

April 30, 2015

Great note. Thanks Greg, all. Jordan On 30 April 2015 at 16:14, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> wrote: > For the Legal Sub-Team, our two law firms have discussed how to answer > Ms. Doria's questions in a way that opens up two options: > > > > (1) treating the NomCom as an unincorporated association, acting as a > designator, appointing directors to the Board, and > > > > (2) treating the NomCom as a Delegate Council, not as an entity but as an > internal ICANN process by which delegates from statutory members of ICANN > plus non-voting delegates from other stakeholders collectively elect > directors, much as they do now. > > > > The removal process could be virtually the same under either option. > > > > Moving to the Delegate Council option, however, does require attention to > the future role of the Internet Engineering Task Force (IETF), which > presently has a voting delegate on the NomCom. > > > > Best regards, > > Greg Colvin > > > > Gregory L. Colvin > > Adler & Colvin > > 235 Montgomery Street, Suite 1220 > > San Francisco, CA 94104 > > Tel: 415-421-7555 x.211 > > Fax: 415-421-0712 > > email: colvin(a)adlercolvin.com > > www.adlercolvin.com > > > > The information in this e-mail message and any attachments may be > privileged, confidential, and protected from disclosure. If you are not > the intended recipient, any use, dissemination, distribution, or copying of > this transmission is strictly prohibited. If you think that you have > received this e-mail message in error, please e-mail the sender at > colvin(a)adlercolvin.com, and delete all copies of this message and its > attachments, if any. Adler and Colvin is a San Francisco Green Business > certified by the City and County of San Francisco. Please consider the > environment before you print this email. Thank you. > > *From:* ccwg-accountability5-bounces(a)icann.org [mailto: > ccwg-accountability5-bounces(a)icann.org] *On Behalf Of *List for the work > of CCWG-Accountability Legal SubTeam > *Sent:* Friday, April 24, 2015 3:55 PM > *To:* Avri Doria; ccwg-accountability5(a)icann.org > *Cc:* accountability-cross-community(a)icann.org > *Subject:* Re: [Acct-Legal] [CCWG-ACCT] Nomcom as a UA - legal question > > > > Avri, > > > > I am forwarding your question to the Legal Sub Team list. > > > > Greg > > > > On Fri, Apr 24, 2015 at 6:51 PM, Avri Doria <avri(a)acm.org> wrote: > > Hi, > > I am confused as to how this works. Please forgive my questions. This > has less to do with the proposal I made then with trying to understand the > nature of a UA. I had not realized until yesterday that the membership > model was as popular as it has been defined to be. I had also not realized > that we were down to membership or designator model as our only choices > until today. > > What qualifies the Nomcom as an association? It can't be the people, as > there is no continuity, except among the staff. and some overlap in chairs > as last year's chair, this years' chair and next year's possible chair, > sit togehter each year. I guess that is a bit of natural person > continuity. Is that chair thread significant? > > Or is that it is always formed according to same bylaw, even if all of the > people are different, that is a qualifying mark? Is being a differnt > instantiation of the same process sufficient to define a UA, even if there > is no continuity of natural persons? > > > thanks > > > avrl > > Note: I would have sent this to the legal list, but i never managed to get > subscribed that one as far as I can tell. > > ------------------------------ > > [image: Avast logo] <http://www.avast.com/> > > This email has been checked for viruses by Avast antivirus software. > www.avast.com > > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 > > -- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan(a)internetnz.net.nz Skype: jordancarter *A better world through a better Internet *

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In reference to Robin's suggestion to include whistleblower issue in WS2
by Avri Doria April 30, 2015

April 30, 2015

Hi There are several mentions of a whistleblower function in both the ATRT1 and in the ATRT2 report. This includes discussion of transparency annual reports, audits of the function, a role for the ombudsman, and possible enhancement of the ICANN hotline, i.e the current implementation of ICANN's whistleblower policy. (all quotes from ATRT2 report <https://www.icann.org/en/about/aoc-review/atrt/final-recommendations-31dec1…>) Under > 9.3. Review Ombudsman Role (p13, 58) > c. A role in fair treatment of ICANN Anonymous Hotline users and other > whistleblowers, and the protection of employees who decide there is a > need to raise an issue that might be problematic for their continued > employment. and (p 14,59) > 9.5. The Board should arrange an audit to determine the viability of > the ICANN > Anonymous Hotline as a whistleblowing mechanism and implement any > necessary improvements. > The professional external audit should be based on the Section 7.1 and > Appendix 5 - Whistleblower Policy of the One World Trust Independent > Review of 20076 recommendations to establish a viable whistleblower > program, including protections for employees who use such a program, and > any recent developments in areas of support and protection for the > whistleblower. The professional audit should be done on a recurring basis, > with the period (annual or bi-annual, for example) determined upon > recommendation by the professional audit. > The processes for ICANN employee transparency and whistleblowing should > be made public. These had been derivative of ATRT1 > ATRT1 Recommendation 26 > ... > ATRT2, under the terms of its mandate, also determined that the > following issues78 > should be addressed in this analysis of accountability and > transparency in policy > development and implementation processes: > a. Publication of yearly statistical reports on transparency. > b. Enhancement of the employee Hotline that allows relevant information to > become transparent (Whistleblower Policy).Which had been derivative And > In 2007, One World Trust concluded94 that: > ICANN should consider implementing processes that act as deterrents > to abuses of power and misconduct which would protect staff who > might want to raise such instances. Specifically, ICANN should > consider developing a whistleblower policy that enables staff to raise > concerns in a confidential manner and without fear of retaliation; and > developing appropriate systems to foster compliance.95 -- > 94 See > http://www.icann.org/en/about/transparency/owt-report-final-2007-en.pdf > 95 In fact, One World Trust made many recommendations, including: > To ensure compliance with any organizational policy, it is important > that there is high level oversight > and leadership. Without this, implementation will only ever be > piecemeal. To ensure implementation of > the information disclosure within ICANN therefore, responsibility for > overseeing the policy should be > assigned to a senior manager. > Supporting this, a set of indicators should be developed to monitor > the implementation of the policy, > and an annual review should be undertaken which identifies how ICANN > is complying with the policy, > where there are problems, and the steps that are to going be taken to > address these (see > recommendation 5.1 in section 8). > While ICANN has three mechanisms for investigating complaints from > members of the ICANN > community, the organization does not have a policy or system in place > that provides staff with channels > through which they can raise complaints in confidentiality and without > fear of retaliation. Having such > a policy (often referred to as a whistleblower policy) is good > practice among global organizations. A > whistleblower policy that provides such protections serves as an > important means of ensuring > accountability to staff as well as preventing fraudulent behavior, > misconduct and corruption within an > organization. > While the Ombudsman, Reconsideration Committee and the Independent > Review Panel provide > complaints-based approaches to compliance, to generate greater trust > among stakeholders, ICANN > needs to take a more proactive approach. > To address this issue, ICANN should consider a regular independent > audit of their compliance with > accountability and transparency commitments. Alternatively, it could > develop a permanent compliance > function to emphasize prevention by identifying shortcomings as they > emerge and before they become > systemic problems. In either case, a regular report on compliance > should be produced and publicly > disseminated. There are longer discussions in the document that may be useful references when this work begins in WS2. I do not know the status of the ATRT2 recommended, and Board approved, audit. did a search, but have not found anything yet. I am sure there is some trace of something on it somewhere. avri --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com

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updated draft report, agenda for CCWG call
by Adam Peake April 29, 2015

April 29, 2015

Dear all, On behalf of the co-chairs, please find attached the updated version of the draft report for public comment. We will tidy up the formatting after having discussed the need for further changes with you. Please note that we have put sections 1-5 into the Appendices, but we felt that we need to give a bit of context to the reader, which is why we have replaced them with very brief information on the various topics of these chapters. We have also included an executive summary. Apart from that, all changes are visible. CCWG-Accountability Meeting Thursday 30 April 2015 from 05:00 07:00 AM/UTC Agenda: 1. Welcome, SoI, Roll Call 2. Review of changes made to the draft after CCWG Call #30 3. XPLANE material presentation and discussion 4, Next Steps 5. A.O.B Thank you, Adam

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Notes-Recordings-Transcript links for STRESS TESTS Meeting #5 - 29 April
by Brenda Brewer April 29, 2015

April 29, 2015

Dear all, The notes, recordings and transcripts for the CCWG Accountability Stress Tests Meeting # 5 on 29 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52895716 Action Items ACTION ITEM - Steve to draft paragraph that takes up three or four points that Mathieu identified ACTION - Steve to provide DIY text Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. 1 Review red text Red text on p 11 and 16 - Proposed measure to except ICANN from exceeding mission Proposed mission statement could be standard of review It would take reconsideration or IRP to trigger it. AGREEMENT - New text to be added quoting standard of review 2 Address Mathieu's edits (blue text) - P3 Stress Test # 9 Spilling Board would be a potential accountability mechanism but never regarded as useful one i.e. last resort AGREEMENT - OK with proposed text - p4 Stress Test #11 Suggestions to remove "mitigation", to use risk mitigation measures", to remove "preventive" AGREEMENT - risk mitigation -p7 Stress Test #21 AGREEMENT Ok with following edit "develop appropriate mechanism - p12 Stress test #13 Standing is available to community. Is term "appeal" appropriate? Suggestion to use reconsideration and IRPs We have not identified different standards of review --> Discourage different standards --> Would not recommend putting standards of review in WS1 work - Suggestion to remove sentence: standards of review may need to be ajdusted sentene and to include Mathieu's text - WS1 - WS2 or future Review panels? AGREEMENT - Remove sentence: standards of review may need to be ajdusted sentene and to include Mathieu's text. Frivolous and vexatious: match with what is in the proposal --> frivolous and abusive Conclusion cell Suggested text: Proposed measures would reduce risk by supermajority requirements and by dismissla of frivolous or abusive RR and IRPs Individual will have standing but expectation that people use it in way that is accountable to community - Proposal: Proposed measures would could increase risk of individuals paralyzing ICANN processes, which is mitigated by dismissal of frivolous or abusive RR and IRPs - Suggestion to use "overload" --> Continued usage may paralyze business, not just overload it --> Improperly impede/interfere AGREEMENT - Remove overload and use impede - Improved access to review and redress could allow indivdual to impede ICANN processes, though this is mitigated by dismissal of frivolous or abusive RR and IRPs 3. Consider adding management abstract paragraph ACTION ITEM - Steve to draft paragraph that takes up three or four points that Mathieu identified 4. To help manage public comment process, do it yourself guide to prevent additional stress-tests being added Do it yourself to guide current proposed and measures making it clear that community powers we are designing can not prevent external threat (hacker, earthquake etc). Suggestion to give example of specific concerns and show how that gets translated using buckets we have ACTION - Steve to provide DIY text

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