- Accountability-Cross-Community

Fwd: Implementation time
by León Felipe Sánchez Ambía April 28, 2015

April 28, 2015

Dear all, In compliance with the working methods of the Legal Sub-team I hereby inform you that I held a call with Holly Gregory of Sidley Austin in order to find out which would be an estimate timeframe for implementation of the CCWG proposals under the hypothesis of each of the options that so far have been discussed in our meetings. This call was held over the phone given the short time ahead of our call tomorrow in which we (the Co-Chairs) thought it would be useful to have a tentative timeframe of implementation. Please note that this information is only for reference of our work and timeline and does not imply nor states that any given structure has been decided upon as this is something that, of course, will need to be decided by the larger community after the public comment period(s) for that end. Below is the reply from the lawyers to this inquiry. I hope you find this information useful. Best regards, León > Inicio del mensaje reenviado: > > De: "Gregory, Holly" <holly.gregory(a)sidley.com> > Asunto: RE: Implementation time > Fecha: 27 de abril de 2015 19:13:13 GMT-5 > Para: 'León Felipe Sánchez Ambía' <leonfelipe(a)sanchez.mx> > Cc: "Rosemary E. Fei" <rfei(a)adlercolvin.com>, ICANN-Adler <ICANN(a)adlercolvin.com>, Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com> > > Dear Leon, > > The Sidley and Adler & Colvin teams have conferred and can confirm the rough estimate that I provided by phone earlier today as follows: > > Assuming that we have very clear direction and guidance, the legal work of preparing proposed amendments to ICANN’s articles and bylaws could be accomplished in as little as two weeks. However, as we have explained, in the drafting process issues may become apparent that have not been anticipated and need additional guidance from CCWG and this would slow the drafting process down. > > Similarly, assuming clear direction and guidance on the ACs/SOs and assuming that these entities do not have assets or revenues, the documents for the unincorporated associations (assuming 6) could be drafted in another two weeks. > > Thus, the drafting of amendments to the core ICANN governance documents and creation of basic streamlined unincorporated association documents should take about four to six weeks total, to have solid first drafts for review. > > We do not have any ability to assess what time will be required by CCWG and other community structures, including ICANN staff, ICANN counsel, the ICANN board, and each of the SO/ACs, to review, comment on and sign off on the revised ICANN governing documents and the new SO/AC unincorporated association documents. We assume that this time could well be significantly greater than the legal drafting time required. (Nor do we have insight at this time as to expectations with regard to any discussion with or review by the NTIA or other US government entity.) > > In terms of regulatory filings, with both the designator and membership models all that is required is that the new articles of incorporation be filed with the State of California. (The bylaws need not be filed to become effective, but will be publicly disclosed to California and federal government agencies in due course.) There is no approval process to factor in at the state or federal level. > > Of course, these estimates relate to the CCWG project and do not include time for any structural changes related to IANA functions under discussion in the CWG project. > > Kind regards, > Holly > > HOLLY J. GREGORY > Partner > > Sidley Austin LLP > +1.212.839.5853 > holly.gregory(a)sidley.com > > > > -----Original Message----- > From: León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx] > Sent: Monday, April 27, 2015 2:46 AM > To: Gregory, Holly; Rosemary E. Fei > Subject: Implementation time > > Dear Holly and Rosemary, > > I know that what I am about to ask might seem like asking for the numbers on bingo but we would like to have a rough reference timeframe for implementation of changes to be ready and legally valid. This, of course, assuming we choose either structure (membership or designators). > > Please let me know if I can be of further help. > > > Best regards, > > > León > > > > > **************************************************************************************************** > This e-mail is sent by a law firm and may contain information that is privileged or confidential. > If you are not the intended recipient, please delete the e-mail and any attachments and notify us > immediately. > > ****************************************************************************************************

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Notes, Recordings, Transcript links for Intensive Meeting Day 2 Session 3 - 24 April
by Brenda Brewer April 27, 2015

April 27, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 2 Session 3 - 24 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+3 A copy of the notes from this session may be found below. Thanks. Kind regards, Brenda Action Items Action: Becky to confirm with ccNSO if this non-inclusion in the IRP, is acceptable. Action: update text redelegation and revocation issues should not be subject to the IRP, pending ccNSO policy. And considering GAC contributions. Action: to ensure the IRP txt is aligned as above. Action: Chairs will review the transcript and put a proposal to the group, and double check with the lawyers. Action: Alan to provide a sentence about the reviewing past reviews (WHOIS etc) Action: Should take on the action item that CWG will Action: Staff+ Steve Del Bianco to make sure the text in the reviews tables lines up Notes Rollcall: all participants in the AC room 1) Recap of session 2 Preserving ICANN commitment from the AoC and through the AoC reviews, but not covered the bylaws changes suggested by the stress tests. 2) Outstanding stress tests - Stress tests where the contingency does not appear to be fully mitigated Stress test 21. Govt official demands a reassignment of a ccTLD. Currently no mitigation on this test. No answer, but to see if a revocation of a reassignment that did not follow procedure: RFC, FOI and GAC principles were considered. CWG has suggest that ccNSO will soon be working on policy. The test articulates the issues, but no solution/bylaws proposal or mechanism emerging. CWG request that CCWG should note define mechanisms, ccNSO addressing this. Unless perhaps out appeals mechanisms apply. ccNSO has been working with GAC on transfer and revocation, a framework of interpretation (FOI) worked on. The FOI references an appeals mechanism, but the ccNSO is still working on the appeals mechanisms, and as ongoing work the ccNSO is not will to sign up for any particular appeals process. And not all ccTLD managers are subject to 1591 as their TLD assigned before it was issues and before the GAC principles of 2006 2005. Could the local parties use the IRP mechanisms? Or in line with the CWG input should we say this should not happen in the IRP. The view of the ccNSO is until ccNSO policy is developed on this the IRP is not applicable to the relegation process. Suggestion that we include language to say these issues should not be subject to the IRP, pending ccNSO policy. Action: Becky to confirm with ccNSO if this non-inclusion in the IRP, is acceptable. Keep current text, this mechanism could be available if compatible with the Policy development process of the ccNSO This section was frozen before the CWG request, we will be updating this in the next few days. CWG explicit not to address pending ccNSO policy. Action: update text redelegation and revocation issues should not be subject to the IRP, pending ccNSO policy. And considering GAC contributions. Action to ensure the IRP txt is aligned as above. 3) Second reading of outstanding issues for public comment report NomCom to recall board members or a new committee and community. Don't believe NomCom will be interested in or able to remove people appointed by a previous NomCom. And don's want to put a NomCom in the position of taking instruction from the SO/AC ash this affects the independence of the NomCom. pre-sign an letter to resign under certain conditions, and conditions might be a super-majority of the SO/AC to express dissatisfaction with their service. This could remove one or more. Suggestion for the recall NomCom be created. This NomCom takes the SO/AC appeal and no complication over the person's appointment. The only issue is the complaint. A simple matter Disagree that the pre-signed letter is enough to remove a director, as opposed to being used to initiate a process. It may tend to be a reaction to a situation going on and does not involve a check and balance. Comment: use the current NomCom, does not see the difference in the board process. Comment: Removal for cause may cause appeals and other processes. A group formed ad Hoc may be hard to fit in the member/designator models. (legal) The resignation letter. Not meant to usurp and checks and balance. It's the end of the process in an entire board recall situation. A contractual obligation for the director to step down from the board if the sending organization requested. Current NomCom can be used. The SO/AC may also have a changing membership. This is the same for the NomCom In favor of Avri's proposal to create a new structure of a recall NomCom as in the draft proposal. Many seem in favor of not putting the current NomCom on the spot. And this suggests the recall NomCom mechanisms should be favored. The conditional pre-signed resignation, also useful as the NomCom would not have a voting right in the community mechanism. The recall NomCom originally written for individual director recall. But not the whole board, and that the NomCom appointees to the board could stand or fall with the rest of the board by whatever mechanism is adopted for that. If the recall NomCom constituted separately from the NomCom then lawyers have suggested this may not be possible as they are not the appointing body. [Possible Action for legal sub-team to consult with the lawyers TBC] Seem that the recall mechanism would be outside the community. Have often spoken as the threat of removal as a means of influence what a Board member might do. Comment. Discomfort with the notion of removing a Board member. They are there for 3 years, community does not see al their work. On the table: Let the community do it, with some push. The recall NomCom, which can only take place with a trigger from the SO/AC community. Would be under the NomCom bylaws, and if a member model the NomCom would be an unincorporated association. and the recall NomCom would come under the NomCom's procedures. Or use the existing NomCom, but hopefully keeping the petitioning mechanisms. (legal) The power to remove is a reason for having a member of designator model, with reason or no reason. And hearing it would be difficult for the NomCom to do this is problematic. But the proposal is viable. Could have two committee under the unincorporated association entity and one of those could appoint and one recall. For individual directors. And these directors could still file a pre-resignation letter for their removal, or absolutely needed for the removal of the whole Board. Is the Avri option what Josh described? It is his the model could be implemented if we go with a member designator model and the NomCom becomes a unincorporated association. Going forward if the NomCom is to put someone on the board it does need to be at least a designator, an unincorporated association. And that entity can have two committees. The process from the view of counsel is as described. A problem is that the new committee is constituted in the same numbers as the NomCom, so very different from the community mechanism. If constituted same as the community mechanism could go along with this. Note, the process is to decide which option we put to the community. Some do not have enough information to make the decision now, and objection to the use of a poll. Would be advisable to have the same organization principles for the group that recalls as the one that appoints. If member or designators, then the groups appointing to the board must be unincorporated association. The NomCom would need to take on the required structure. Then the question is should the same group of people who appoint be different from those who remove. Then SO/AC community reps would bring in their input in the petition. Suggestion for a legal paper to explain the options. Action. Chairs will review the transcript and put a proposal to the group, and double check with the lawyers. Board recall powers Reference proposal. 5 for SO and AC of ALAC and GAC, and 2 for RSAC and SSAC brings a total of 29 people. 75% is 22 of 29. 80% 4/5, is 24 votes of 29. 85% is 25 votes of 29. Petition is 3 SO/AC. If we want to block a single group from blocking a proposal then a 85% trigger is not workable. Assuming that the will be able to split vote, then 80% is appropriate, 75% if a block vote. The dynamics of the ICANN community will make reaching such a high threshold as 75% will be difficult. The group is leaning to individual vote. Removal of the whole board, and need stability. 80% means if a single group blocks then requires unanimity from the rest and that is too high. Abstention are not counting. The options are 75% and 80% with 75% preferred as the reference option. The removal NomCom would have a different structure. The pre-resignation letter essential, to ensure the recall process has effect. If the 75% threshold is met then expectation is that all directors would resign. Diversity (participation and inclusion) as an issue for WS2. This proposal is consistent with Jan Scholte's advice received before the meetings. Is included in the core values work? Seeking what does it mean to be transparent by default? How do we record what is classified and be aware of when something is classified. And as has come up in ATRT, just because something has classified at the time, does it mean to be so in 5 years. It is almost default that every inquiry requires a DIDP Not seen any objection to these two items Also suggest looking at ICANN's whistleblower program in WS2. In WS1 the 4 AoC reviews we are suggesting bringing over they will have better access than before to information needed to use during a review. A package of three items to be added to WS2 Diversity Transparency and Whistleblower policy Noting we will ask the community for any additional issues during public comment Package accepted. AoC Section 8 Identified that 8b is already reflected in the ICANN bylaws through article 18 offices. And members and designators could block any changes. Question is whether we want to move article 18 to fundamental. Comment: to reflect that here are 2 opinions in the group that it should either be kept in the bylaws or as fundamental. Does it cause concern for anyone to replace principles by headquarters. Suggestion to seek advice from the lawyers on actual language. The bylaws are more specific in CA/Los Angeles, and bylaws only refer to the United States. Registered offices are often in different states from headquarters. The articles capture that it is a CA corporation, so the package captures the whole. Pedro: The CCWG is considering whether bylaws Article 18 Section 1 should keep its current status or be among the bylaws sections listed as "Fundamental Bylaws". In the latter case, any changes to it would require positive approval by Members/Designators. Suggestion that to allow flexibility and a lower threshold, if it is to be a fundamental bylaw or traditional. Both options will be in there. Reviews in the bylaws and AoC Highlight difference of today and being proposed. proposed: assessing the role and effectiveness of the GAC in its interaction with the board. in the AoC, item f. Implementation of recommendation. The review team may terminate reviews and create new reviews. Timing. ART is every 3 years. Suggest no less frequently than every 5 years, which would allow us to do this more frequently. 5 years: The current implementation is from the receipt of report, so adding an additional year. The itemized points are all mandatory, and believed others out of scope. Need to take care to allow flexibility. Review other review teams. Clear in ATRT2, first to review other review teams, 1 lack expertise, 2. exponentially increasing work. suggested the review be done by the successor review. 'timing". to make a point about the time the board received it. unclear on itemized issues (f) May be repeated in each review or in the chapeau Each ATRT must review the previous ATRT. Action Alan to provide a sentence about the reviewing past reviews (WHOIS etc) comment: the general principles of what we are trying to archive is actually captured in section of 11 of the ATRT2 report. If there is a pressing need for a more frequent review then the proposal gives that flexibility. Review effectiveness of WHOIS (directory services - is included) Privacy concerns added with the OECD principles, and this is new AoC every three years, and left at three years (expecting change wrt directory services) Evaluation of the new gTLD. Change of languages as written pre new gTLD program. Competition and consumer trust and choice are reflected in the core values. Subsequent rounds should not be opened until the review of previous review implemented. Action: Should take on the action item that CWG will recommend an IANA performance review will be conducted as CWG requirements, as a placeholder. Proceed with language as suggested? Action: Staff+ Steve Del Bianco to make sure the text in the reviews tables lines up Fulfilling CWG requirements Ability of community to veto the budget. Feasible, but more enforceable under the member model. Ability to set up an IANA function review. And that is be submitted as a fundamental bylaw Suggested that the CWG would be placed in the same section as the other reviews. Currently reviews are not Fundamental Bylaws. The ability to trigger ad hoc [special] reviews. The power to convene a review is driven by the community. And there is room for this special out of cycle review. ccTLD revocation issue covered. The IANA functions review in the CWG only covers naming functions, but it might evolve within the ICG. Next Steps Document update with the feedback received. Update by the rapporteurs, staff and co-chairs. Final document for review and approval by the CCWG Final document May 1st, for final adjustments by the group, with a goal to publish on May 4th. And public comment for 30 days, comment period agreed by the group. The final review should not be for substantial change: editorial and inconsistencies. First check of the document on Tuesday's regular call, (April 28) and if needed hold an additional call on Thursday (April 30). Is this acceptable? Will affect the CCWG timeline. The public comment start was April 28, moving to May 4. Public comment moved by a few days. Staff complies a review tool for the community to review. Public comment 30 or 28 days? 30 days, green tick please Objections to keeping to 30 days red cross Agreement to open public comment for 30days. The advisors will also be given opportunity to review the document. We will review the CWG stress test. Kavouss: profound thanks to the co-chairs, the rapporteurs, working group chairs. Thanks to colleagues for you participation and support, I have learnt a lot. Thanks staff. And congratulations to ICANN. Thank you to you all. co-chairs: Thanks to staff, rapporteurs, lawyers and thanks to the whole group. Adjourn.

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Regarding approval process for AoC review team recommendations
by Bruce Tonkin April 27, 2015

April 27, 2015

Hello Jordan, >> PROPOSED: "The final output of all reviews will be published for public comment. The Board shall consider the recommendations and the public comments, and within six months of receipt of the recommendations will either approve and begin implementation, or explain the reasons in each case where there is a recommendation it wishes to defer or not implement. That pretty much describes current practice. Another step that we discussed in the Board workshop was also engaging the members of the review team if there are any plans to defer or not implement a recommendations. One thing that we are considering at a Board level is the overall costs of implementation of some of the recommendations and their impact on budgets. Some recommendations kick off large pieces of work for volunteers and those volunteer resources are finite as well. We repeatedly hear of volunteer burn-out at ICANN. Going forward it would be great if review teams prioritised recommendations, or made recommendations in the context of a budget envelope (which might be a combination of financial and volunteer hours). As part of the review reports it would be useful to consider the financial and volunteer resources required to implement - at least as a first level estimate. During our board workshop on the weekend - I recommend that staff provide some estimate of resources expended to implement recommendations from previous reviews. This should also include some estimates of the number of hours of volunteer time involved as well. Regards, Bruce Tonkin

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Board workshop presentations associated with the IANA transition
by Bruce Tonkin April 27, 2015

April 27, 2015

Hello All, At the Board workshop in Los Angeles yesterday we received a briefing from • Andrew Sullivan, (IAB) • Jonathan Robinson, Co-Chair, CWG-Stewardship and GNSO Chair • Jari Arkko, ICG Member and IETF Chair • Izumi Okutani, Chair, CRISP Team • Axel Pawlik, NRO Chair on the status of their work on the proposals for the IANA transition. The briefings were recorded and transcribed, and are available at: https://www.icann.org/resources/pages/board-workshop-community-panel-intro-… I have attached the transcript. If the CCWG would like to brief the Board prior to Buenos Aires, I can arrange for that. I will also coordinate a response from the Board to the CCWG report as part of the public comment process. Regards, Bruce Tonkin

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Re: [CCWG-ACCT] the power to enforce AOC type (6.7) recommendations
by Alan Greenberg April 27, 2015

April 27, 2015

Yes, I understood the intention. My suggestion is that we not word it saying that the Board has an obligation to IMPLEMENT but to fairly and properly evaluate. Alan At 26/04/2015 06:26 PM, Jonathan Zuck wrote: >I think that's exactly the intention, Alan. The board simply has to >make a formal decision. That's it. At that point, the community has >a pretty high bar to contest that decision but at least they are >empowered to do so. > >From: Alan Greenberg [mailto:alan.greenberg@mcgill.ca] >Sent: Sunday, April 26, 2015 6:13 PM >To: Jordan Carter; Jonathan Zuck >Cc: avri(a)acm.org; accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] the power to enforce AOC type (6.7) recommendations > >I think we need to be careful with the wording of this. Although >review teams work with the best of intentions, recommendations may >not always be implementable, practical or cost-effective. The Board >must have a strong obligation to evaluate them and if it chooses not >to implement (or not to implement exactly as specified), it must >have an obligation explicitly say so, and to either propose an >alternative recommendation that accomplishes the same intent, or >justify why the recommendation is not being followed. And THAT is >subject to reconsideration/review. Part of that was already in ATRT2 >Rec 11.6, but we have the opportunity to strengthen it now. > >Alan > >At 26/04/2015 05:30 PM, Jordan Carter wrote: > >To add to Jonathan's point, Avri - I think the new language creating >a positive obligation on the Board to "approve and implement review >team recommendations, including recommendations from previous >reviews." isn't just reinforcing the status quo. If the Board fails >to do this, it then goes up the reconsideration/review thing. this >is how we worked around the "what if they just don't decide anything?" problem. > >cheers >Jordan > > >On 27 April 2015 at 07:29, Jonathan Zuck ><<mailto:JZuck@actonline.org>JZuck(a)actonline.org> wrote: >I'm saying that both adoption and rejection are reviewable >decisions. Inaction would be the failure to make a decision. >Sent from my Windows Phone > >---------- >From: <mailto:avri@acm.org>Avri Doria >Sent: 4/26/2015 2:41 PM >To: ><mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] the power to enforce AOC type (6.7) recommendations >Hi, > > >Does that help? > > >Apologies, but I think I remain confused. >I understand that we still have the ultimate accountability function. >Still don't know if there is any other power. >First, as far as I remember, we did not get the Power to force a >decision against complete inaction. >Also I do not believe that it would be the case that there was >complete inaction. I am sure that the Board would review the >various recommendations of the AOC type review teams. Most reviews >contain many recommendations, and the Board could accept some and >reject others. > > >because once the board has made a decision, we are putting in >accountability mechanisms to question that decision > > >Do you mean reconsideration and IRP? >thanks >avri >On 26-Apr-15 14:03, Jonathan Zuck wrote: > > >Avri, >I completely agree that this is new obligation and that it must find >its way into the bylaws. > >As for your other question, I think it?s not a question of giving >power to a review team but rather to the community to induce the >board to accept recommendations from a review team. > >To accomplish that, all we need to do an ensure that the board >actually considers the recommendations and makes a decision about >them, any decision because once the board has made a decision, we >are putting in accountability mechanisms to question that decision. >The whole that currently exist is in cases of complete inaction on >the part of the board. > >The best analogy I think can of at the moment is the FTC. The FTC >has the ability to hold companies to their promises. Getting >companies to post privacy policies is the equivalent of getting them >to promise something at which point, they are then subject to FTC review. > >Does that help? >Jonathan > > >From: ><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >[ mailto:accountability-cross-community-bounces@icann.org] On Behalf >Of Avri Doria >Sent: Sunday, April 26, 2015 1:29 PM >To: ><mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org >Subject: [CCWG-ACCT] the pwoer to enforce AOC type (6.7) recommendations > >Hi, >In the draft recommendations (6.7.2): > >Require the ICANN board to approve and implement review team >recommendations, including >recommendations from previous reviews. > >The final output of all reviews will be published for public comment. >The Board shall consider approval and begin implementation within >six months of receipt of the recommendations. > >We discussed this as a putting a greater obligation onf the Board >than it currently has. But I do not understand how that is the >case. At this point, it is still up to the Board to agree or not. >In responding to a CWG-IANA based question from an NCSG member on >how the IANA Function Review recommendation for a RFP, if such were >to ever happen, would be respected by the ICANN Board? Couldn't >they just ignore it. >I did not have a response and am wondering what part of the >community powers I am forgetting. >This points to the more general question about any recommendation of >an AOC type review. >Other than the no-confidence removal of the Board (6.6.6. got to >love the numer!), is there anything that gives the AOC-Like review >recommendations the sort of Community powers that we have discussed >having for budgets, strategy & operational plans (6.6.2) ? Is it >possible to include Board rejection of AOC type review >recommendations under the category of decision that can be overruled >by members? Or is that class of decsion restricted by statute? >Thanks >avri > > > ><http://www.avast.com/> >Image removed by sender. Avast logo > >This email has been checked for viruses by Avast antivirus software. ><http://www.avast.com/>www.avast.com > > > > > >---------- >This email has been checked for viruses by Avast antivirus software. ><http://www.avast.com/>www.avast.com > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > >-- >Jordan Carter > >Chief Executive >InternetNZ > >04 495 2118 (office) | +64 21 442 649 (mob) ><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >Skype: jordancarter > >A better world through a better Internet > >Content-Type: image/jpeg; name="ATT00001.jpg" >Content-Disposition: inline; filename="ATT00001.jpg" >Content-ID: ><<mailto:part1.03070509.08020705@acm.org>part1.03070509.08020705(a)acm.org> >X-Attachment-Id: 7bb46e66032fa506_0.0.1 > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [CCWG-ACCT] the power to enforce AOC type (6.7) recommendations
by Alan Greenberg April 26, 2015

April 26, 2015

I think we need to be careful with the wording of this. Although review teams work with the best of intentions, recommendations may not always be implementable, practical or cost-effective. The Board must have a strong obligation to evaluate them and if it chooses not to implement (or not to implement exactly as specified), it must have an obligation explicitly say so, and to either propose an alternative recommendation that accomplishes the same intent, or justify why the recommendation is not being followed. And THAT is subject to reconsideration/review. Part of that was already in ATRT2 Rec 11.6, but we have the opportunity to strengthen it now. Alan At 26/04/2015 05:30 PM, Jordan Carter wrote: >To add to Jonathan's point, Avri - I think the new language creating >a positive obligation on the Board to "approve and implement review >team recommendations, including recommendations from previous >reviews." isn't just reinforcing the status quo. If the Board fails >to do this, it then goes up the reconsideration/review thing. this >is how we worked around the "what if they just don't decide anything?" problem. > >cheers >Jordan > > >On 27 April 2015 at 07:29, Jonathan Zuck ><<mailto:JZuck@actonline.org>JZuck(a)actonline.org> wrote: >I'm saying that both adoption and rejection are reviewable >decisions. Inaction would be the failure to make a decision. > >Sent from my Windows Phone > >---------- >From: <mailto:avri@acm.org>Avri Doria >Sent: 4/26/2015 2:41 PM >To: ><mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] the power to enforce AOC type (6.7) recommendations > >Hi, > >>Does that help? > >Apologies, but I think I remain confused. > >I understand that we still have the ultimate accountability function. >Still don't know if there is any other power. > >First, as far as I remember, we did not get the Power to force a >decision against complete inaction. > >Also I do not believe that it would be the case that there was >complete inaction. I am sure that the Board would review the >various recommendations of the AOC type review teams. Most reviews >contain many recommendations, and the Board could accept some and >reject others. > >>because once the board has made a decision, we are putting in >>accountability mechanisms to question that decision > >Do you mean reconsideration and IRP? > >thanks >avri > >On 26-Apr-15 14:03, Jonathan Zuck wrote: >> >>Avri, >> >>I completely agree that this is new obligation and that it must >>find its way into the bylaws. >> >> >> >>As for your other question, I think it's not a question of giving >>power to a review team but rather to the community to induce the >>board to accept recommendations from a review team. >> >> >> >>To accomplish that, all we need to do an ensure that the board >>actually considers the recommendations and makes a decision about >>them, any decision because once the board has made a decision, we >>are putting in accountability mechanisms to question that decision. >>The whole that currently exist is in cases of complete inaction on >>the part of the board. >> >> >> >>The best analogy I think can of at the moment is the FTC. The FTC >>has the ability to hold companies to their promises. Getting >>companies to post privacy policies is the equivalent of getting >>them to promise something at which point, they are then subject to FTC review. >> >> >> >>Does that help? >> >>Jonathan >> >> >> >> >> >>From: >><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >>[mailto:accountability-cross-community-bounces@icann.org] On Behalf >>Of Avri Doria >>Sent: Sunday, April 26, 2015 1:29 PM >>To: >><mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org >>Subject: [CCWG-ACCT] the pwoer to enforce AOC type (6.7) recommendations >> >> >> >>Hi, >> >>In the draft recommendations (6.7.2): >> >> >>Require the ICANN board to approve and implement review team >>recommendations, including >>recommendations from previous reviews. >> >> >> >>The final output of all reviews will be published for public comment. >>The Board shall consider approval and begin implementation within >>six months of receipt of the recommendations. >> >> >>We discussed this as a putting a greater obligation onf the Board >>than it currently has. But I do not understand how that is the >>case. At this point, it is still up to the Board to agree or not. >> >>In responding to a CWG-IANA based question from an NCSG member on >>how the IANA Function Review recommendation for a RFP, if such >>were to ever happen, would be respected by the ICANN >>Board? Couldn't they just ignore it. >> >>I did not have a response and am wondering what part of the >>community powers I am forgetting. >> >>This points to the more general question about any recommendation >>of an AOC type review. >> >>Other than the no-confidence removal of the Board (6.6.6. got to >>love the numer!), is there anything that gives the AOC-Like review >>recommendations the sort of Community powers that we have discussed >>having for budgets, strategy & operational plans (6.6.2) ? Is it >>possible to include Board rejection of AOC type review >>recommendations under the category of decision that can be >>overruled by members? Or is that class of decsion restricted by statute? >> >>Thanks >> >>avri >> >> >> >> >><http://www.avast.com/> >>Image removed by sender. Avast logo >> >> >>This email has been checked for viruses by Avast antivirus software. >><http://www.avast.com/>www.avast.com >> >> > > > > >---------- >This email has been checked for viruses by Avast antivirus software. ><http://www.avast.com/>www.avast.com > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > >-- >Jordan Carter > >Chief Executive >InternetNZ > >04 495 2118 (office) | +64 21 442 649 (mob) ><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >Skype: jordancarter > >A better world through a better Internet > >Content-Type: image/jpeg; name="ATT00001.jpg" >Content-Disposition: inline; filename="ATT00001.jpg" >Content-ID: <part1.03070509.08020705(a)acm.org> >X-Attachment-Id: 7bb46e66032fa506_0.0.1 > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Nomcom as a UA - legal question
by Avri Doria April 25, 2015

April 25, 2015

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. --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com

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Notes and action items CCWG ACCT Day 2 Session 3
by Adam Peake April 25, 2015

April 25, 2015

Notes and action items for CCWG ACCT Day 2 Session 3 24 April 2015 Also posted on the wiki https://community.icann.org/pages/editpage.action?pageId=52897583 Action items Action: Becky to confirm with ccNSO if this non-inclusion in the IRP, is acceptable. Action: update text redelegation and revocation issues should not be subject to the IRP, pending ccNSO policy. And considering GAC contributions. Action: to ensure the IRP txt is aligned as above. Action: Chairs will review the transcript and put a proposal to the group, and double check with the lawyers. Action: Alan to provide a sentence about the reviewing past reviews (WHOIS etc) Action: Should take on the action item that CWG will Action: Staff+ Steve Del Bianco to make sure the text in the reviews tables lines up CCWG ACCT Day 2 Session 3 24 April 2015 This call is being recorded. LINKS Intensive Meeting Program: https://community.icann.org/pages/viewpage.action?pageId=52897568 Draft Report Dedicated Webpage: https://community.icann.org/display/acctcrosscomm/Draft+Report Working Methods: https://community.icann.org/download/attachments/52897394/CCWG%20Intense%20 work%20days%20work%20methods%20-.pdf?version=1&modificationDate=14295697203 31&api=v2 Day 2 Session 3 archives will be available at: https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+3 Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards AGENDA: 1) Recap of session 2 2) Outstanding stress tests - Stress tests where the contingency does not appear to be fully mitigated a) Including stress test 21: Government official demands rescind of a ccTLD 3) Second reading of outstanding issues for public comment report 4) Next Steps Work Plan NOTES & ACTION ITEMS: These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Rollcall: N/A Session 2 recap. Preserving ICANN commitment from the AoC and through the AoC reviews, but not covered the bylaws changes suggested by the stress tests. 2) Outstanding stress tests - Stress tests where the contingency does not appear to be fully mitigated Stress test 21. Govt official demands a reassignment of a ccTLD. Currently no mitigation on this test. No answer, but to see if a revocation of a reassignment that did not follow procedure: RFC, FOI and GAC principles were considered. CWG has suggest that ccNSO will soon be working on policy. The test articulates the issues, but no solution/bylaws proposal or mechanism emerging. CWG request that CCWG should note define mechanisms, ccNSO addressing this. Unless perhaps out appeals mechanisms apply. ccNSO has been working with GAC on transfer and revocation, a framework of interpretation (FOI) worked on. The FOI references an appeals mechanism, but the ccNSO is still working on the appeals mechanisms, and as ongoing work the ccNSO is not will to sign up for any particular appeals process. And not all ccTLD managers are subject to 1591 as their TLD assigned before it was issues and before the GAC principles of 2006. Could the local parties use the IRP mechanisms? Or in line with the CWG input should we say this should not happen in the IRP. The view of the ccNSO is until ccNSO policy is developed on this the IRP is not applicable to the relegation process. Suggestion that we include language to say these issues should not be subject to the IRP, pending ccNSO policy. Action: Becky to confirm with ccNSO if this non-inclusion in the IRP, is acceptable. Keep current text, this mechanism could be available if compatible with the Policy development process of the ccNSO This section was frozen before the CWG request, we will be updating this in the next few days. CWG explicit not to address pending ccNSO policy. Action: update text redelegation and revocation issues should not be subject to the IRP, pending ccNSO policy. And considering GAC contributions. Action to ensure the IRP txt is aligned as above. 3) Second reading of outstanding issues for public comment report NomCom to recall board members or a new committee and community. Don¹t believe NomCom will be interested in or able to remove people appointed by a previous NomCom. And don¹s want to put a NomCom in the position of taking instruction from the SO/AC ash this affects the independence of the NomCom. pre-sign an letter to resign under certain conditions, and conditions might be a super-majority of the SO/AC to express dissatisfaction with their service. This could remove one or more. Suggestion for the recall NomCom be created. This NomCom takes the SO/AC appeal and no complication over the person¹s appointment. The only issue is the complaint. A simple matter Disagree that the pre-signed letter is enough to remove a director, as opposed to being used to initiate a process. It may tend to be a reaction to a situation going on and does not involve a check and balance. Comment: use the current NomCom, does not see the difference in the board process. Comment: Removal for cause may cause appeals and other processes. A group formed ad Hoc may be hard to fit in the member/designator models. (legal) The resignation letter. Not meant to usurp and checks and balance. It's the end of the process in an entire board recall situation. A contractual obligation for the director to step down from the board if the sending organization requested. Current NomCom can be used. The SO/AC may also have a changing membership. This is the same for the NomCom In favor of Avri¹s proposal to create a new structure of a recall NomCom as in the draft proposal. Many seem in favor of not putting the current NomCom on the spot. And this suggests the recall NomCom mechanisms should be favored. The conditional pre-signed resignation, also useful as the NomCom would not have a voting right in the community mechanism. The recall NomCom originally written for individual director recall. But not the whole board, and that the NomCom appointees to the board could stand or fall with the rest of the board by whatever mechanism is adopted for that. If the recall NomCom constituted separately from the NomCom then lawyers have suggested this may not be possible as they are not the appointing body. [Possible Action for legal sub-team to consult with the lawyers TBC] Seem that the recall mechanism would be outside the community. Have often spoken as the threat of removal as a means of influence what a Board member might do. Comment. Discomfort with the notion of removing a Board member. They are there for 3 years, community does not see al their work. On the table: Let the community do it, with some push. The recall NomCom, which can only take place with a trigger from the SO/AC community. Would be under the NomCom bylaws, and if a member model the NomCom would be an unincorporated association. and the recall NomCom would come under the NomCom¹s procedures. Or use the existing NomCom, but hopefully keeping the petitioning mechanisms. (legal) The power to remove is a reason for having a member of designator model, with reason or no reason. And hearing it would be difficult for the NomCom to do this is problematic. But the proposal is viable. Could have two committee under the unincorporated association entity and one of those could appoint and one recall. For individual directors. And these directors could still file a pre-resignation letter for their removal, or absolutely needed for the removal of the whole Board. Is the Avri option what Josh described? It is his the model could be implemented if we go with a member designator model and the NomCom becomes a unincorporated association. Going forward if the NomCom is to put someone on the board it does need to be at least a designator, an unincorporated association. And that entity can have two committees. The process from the view of counsel is as described. A problem is that the new committee is constituted in the same numbers as the NomCom, so very different from the community mechanism. If constituted same as the community mechanism could go along with this. Note, the process is to decide which option we put to the community. Some do not have enough information to make the decision now, and objection to the use of a poll. Would be advisable to have the same organization principles for the group that recalls as the one that appoints. If member or designators, then the groups appointing to the board must be unincorporated association. The NomCom would need to take on the required structure. Then the question is should the same group of people who appoint be different from those who remove. Then SO/AC community reps would bring in their input in the petition. Suggestion for a legal paper to explain the options. Action. Chairs will review the transcript and put a proposal to the group, and double check with the lawyers. Board recall powers Reference proposal. 5 for SO and AC of ALAC and GAC, and 2 for RSAC and SSAC brings a total of 29 people. 75% is 22 of 29. 80% 4/5, is 24 votes of 29. 85% is 25 votes of 29. Petition is 3 SO/AC. If we want to block a single group from blocking a proposal then a 85% trigger is not workable. Assuming that the will be able to split vote, then 80% is appropriate, 75% if a block vote. The dynamics of the ICANN community will make reaching such a high threshold as 75% will be difficult. The group is leaning to individual vote. Removal of the whole board, and need stability. 80% means if a single group blocks then requires unanimity from the rest and that is too high. Abstention are not counting. The options are 75% and 80% with 75% preferred as the reference option. The removal NomCom would have a different structure. The pre-resignation letter essential, to ensure the recall process has effect. If the 75% threshold is met then expectation is that all directors would resign. Diversity (participation and inclusion) as an issue for WS2. This proposal is consistent with Jan Scholte¹s advice received before the meetings. Is included in the core values work? Seeking what does it mean to be transparent by default? How do we record what is classified and be aware of when something is classified. And as has come up in ATRT, just because something has classified at the time, does it mean to be so in 5 years. It is almost default that every inquiry requires a DIDP Not seen any objection to these two items Also suggest looking at ICANN¹s whistleblower program in WS2. In WS1 the 4 AoC reviews we are suggesting bringing over they will have better access than before to information needed to use during a review. A package of three items to be added to WS2 Diversity Transparency and Whistleblower policy Noting we will ask the community for any additional issues during public comment Package accepted. AoC Section 8 Identified that 8b is already reflected in the ICANN bylaws through article 18 offices. And members and designators could block any changes. Question is whether we want to move article 18 to fundamental. Comment: to reflect that here are 2 opinions in the group that it should either be kept in the bylaws or as fundamental. Does it cause concern for anyone to replace principles by headquarters. Suggestion to seek advice from the lawyers on actual language. The bylaws are more specific in CA/Los Angeles, and bylaws only refer to the United States. Registered offices are often in different states from headquarters. The articles capture that it is a CA corporation, so the package captures the whole. Pedro: The CCWG is considering whether bylaws Article 18 Section 1 should keep its current status or be among the bylaws sections listed as ³Fundamental Bylaws². In the latter case, any changes to it would require positive approval by Members/Designators. Suggestion that to allow flexibility and a lower threshold, if it is to be a fundamental bylaw or traditional. Both options will be in there. Reviews in the bylaws and AoC Highlight difference of today and being proposed. proposed: assessing the role and effectiveness of the GAC in its interaction with the board. in the AoC, item f. Implementation of recommendation. The review team may terminate reviews and create new reviews. Timing. ART is every 3 years. Suggest no less frequently than every 5 years, which would allow us to do this more frequently. 5 years: The current implementation is from the receipt of report, so adding an additional year. The itemized points are all mandatory, and believed others out of scope. Need to take care to allow flexibility. Review other review teams. Clear in ATRT2, first to review other review teams, 1 lack expertise, 2. exponentially increasing work. suggested the review be done by the successor review. 'timing". to make a point about the time the board received it. unclear on itemized issues (f) May be repeated in each review or in the chapeau Each ATRT must review the previous ATRT. Action Alan to provide a sentence about the reviewing past reviews (WHOIS etc) comment: the general principles of what we are trying to archive is actually captured in section of 11 of the ATRT2 report. If there is a pressing need for a more frequent review then the proposal gives that flexibility. Review effectiveness of WHOIS (directory services is included) Privacy concerns added with the OECD principles, and this is new AoC every three years, and left at three years (expecting change wrt directory services) Evaluation of the new gTLD. Change of languages as written pre new gTLD program. Competition and consumer trust and choice are reflected in the core values. Subsequent rounds should not be opened until the review of previous review implemented. Action: Should take on the action item that CWG will recommend an IANA performance review will be conducted as CWG requirements, as a placeholder. Proceed with language as suggested? Action: Staff+ Steve Del Bianco to make sure the text in the reviews tables lines up Fulfilling CWG requirements Ability of community to veto the budget. Feasible, but more enforceable under the member model. Ability to set up an IANA function review. And that is be submitted as a fundamental bylaw Suggested that the CWG would be placed in the same section as the other reviews. Currently reviews are not Fundamental Bylaws. The ability to trigger ad hoc [special] reviews. The power to convene a review is driven by the community. And there is room for this special out of cycle review. ccTLD revocation issue covered. The IANA functions review in the CWG only covers naming functions, but it might evolve within the ICG. Next Steps Document update with the feedback received. Update by the rapporteurs, staff and co-chairs. Final document for review and approval by the CCWG Final document May 1st, for final adjustments by the group, with a goal to publish on May 4th. And public comment for 30 days, comment period agreed by the group. The final review should not be for substantial change: editorial and inconsistencies. First check of the document on Tuesday's regular call, (April 28) and if needed hold an additional call on Thursday (April 30). Is this acceptable? Will affect the CCWG timeline. The public comment start was April 28, moving to May 4. Public comment moved by a few days. Staff complies a review tool for the community to review. Public comment 30 or 28 days? 30 days, green tick please Objections to keeping to 30 days red cross Agreement to open public comment for 30days. The advisors will also be given opportunity to review the document. We will review the CWG stress test. Kavouss: profound thanks to the co-chairs, the rapporteurs, working group chairs. Thanks to colleagues for you participation and support, I have learnt a lot. Thanks staff. And congratulations to ICANN. Thank you to you all. co-chairs: Thanks to staff, rapporteurs, lawyers and thanks to the whole group. Adjourn.

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Suggestion about decription of requirements identified by CWG-Stewardship
by Izumi Okutani April 25, 2015

April 25, 2015

Dear all, I found the meetings in the past two days extremely helpful in setting directions on points which needed confirmation of support (or no support) by CCWG members. That was great. Before I offload my head from ICANN Accountability issues over the weekend, I would like to raise one point here on the mailing list, which I suggested on the chat at one of the calls on Thursday 23 April. For the mechanisms we are proposing for WP1 and WP2, may I suggest to reflect in our proposal for the public comments, the mechanisms identified as requirements in CWG-Stewardship? I would think it is not complicated, if we add a sub-section such as "Requirements identified by CWG" in Section "5. Input Gathered from the Community - Required Community Powers", and refer to specific mechanisms in WS1 and WS2 which correspond to CWG requirements, for example. This would: - Make our considerations for requirements look more comprehensive, in addition to the requirements identified through the public comments which is already in the current draft of our proposal. - Helps the readers to have a better understanding on why this particular mechanism is needed and how it helps, when considering their feedback. - Gives more concrete assurance to CWG-Stewardship members that CCWG are addressing their requirements in a publicly visible form. Thanks, Izumi

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Fwd: draft proposal for AoC section 8 - for our next call
by Steve DelBianco April 25, 2015

April 25, 2015

Per Mathieu's request, here is a one page summary of proposed way to deal with AoC section 8. I tried to reflect suggestions from our last call. Look forward to discussion. ? -? Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206<tel:+1.703.615.6206>

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