- Accountability-Cross-Community

Notes, Recordings, Transcript CCWG ACCT WP1 Meeting #8 on 10 April
by Brenda Brewer April 10, 2015

April 10, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT WP1 Meeting #8 on 10 April are available here: https://community.icann.org/pages/viewpage.action?pageId=52895947 Action Items Action on the budget and strategic plan. New: cannot raise new issues, but can reject updated versions presented by the Board. Action: Jordan check direction with Board liaison. Action Robin and Jordan to amend text Action: Drafters clarifying the explanation in the 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.Kavouss Arasteh joining on the phone, not in the AC room 2. Second draft of public comment report content (top of 2nd page) Action on the budget and strategic plan. New: cannot raise new issues, but can reject updated versions presented by the Board. new: 1st rejection at 50%, and 2nd 60% standing to bring a complaint? Issue of budget was discussed in Istanbul, review (from memory) that it was a complicated matter to add to the budget process. And it would be important to put process in place if a budget was rejected. Question to the call: can the bold and underline be removed to illustrate that there is now agreement on those issues.? Suggested that the maximum impact should be that the Board has to operate under the previous year's (agreed) budget. Escalation paths through these powers haven't been discussed. Nothing is stated about what happens next. The removing Directors power is left so it can be used with any issue of the core mission, bylaws etc. There is no direct connection between these mechanisms Is there agreement on removal of bolding 1st and 2nd (para 4 and 5), subject to discussion happening in the CCWG. Para 6 (page 2) keep in bold as CCWG not discussed and keep para 7 bold to emphasize powers being suggested 6.5.3 reject changes to ICANN bylaws Threshold proposal added. Not changed that there's no limit on the number of times a bylaw change can be sent back Batches of bylaw changes. Should be specific on which change is causing the vote to ask if it should be rejected. Same for budget, where there are batch of changes to the budget, be specific and explain why. Explain the challenge with specificity both for the budget and bylaw change, make explicit in the document. 60% threshold - to and the bylaws the board requires a 2/3 vote, suggest community should at least meet the same standard, or higher. The bylaws should be hard to change, is it logical to have a low threshold to block changes? An extraordinary remedy, and don't want smaller factions having influence rather than the will of the community. Propose 70% and keep it bold, for discussion with the CCWG? Amended to 70%. Footnote board is 2/3. Para 2 (page 3) can be unbolded. 6.5.4 approve changes to "fundamental" bylaws 6.5.5 Recalling individual ICANN directors added: any board member can be removed with 75% of the board with no criteria. Removal process: an internal process for SO/AC, and share the same majority requirement for any process, with the complication of the NomCom appointees. Not specified what the majority would be required, but until know the mechanism that is hard to know. Last para, assumes a member or designators mechanism, the trigger may be low, but high decision threshold, then it becomes clear if the Director maintains a mandate. ALAC also needs to be included. Whatever percentage, then adding "or equivalent" would allow the different SO/AC strictures to be accommodated. Concern over the NomCom mechanisms. To what extent do we proscribed one size fits all for the SO/AC. May be the call for the SO/AC themselves. To what extent do we proscribed one size fits all for the SO/AC. May be the call for the SO/AC themselves. A common threshold without specifying process, to represent that Directors are serving the broader community, not just the entries that selected them. Suggest on the last CCWG call there wasn't agreement on the power to remove individual directors. The principle of the appointing organization removing the director will be the subject of legal advice expected later 10 April. Should be the ability of a "designator" to remove their board member, but can add a minimum threshold and allow groups to move above that threshold. In some cases Board members removed by those who put them in place, GNSO contracted/contracted parties should be considered. Action: Jordan check direction with Board liaison. Different rule under the current bylaws for different liaisons, GAC and the others. Replace threshold from 66% to 75% (or equivalent). Petitioning threshold of 40%, but that there are suggestions ranging from 33% to 50%. Noting this is to start the discussion in the CCWG. Risk that a low threshold may lead to an abuse of the process. All bolding remains. 6.5.6. Recalling the Entire ICANN Board Whatever the mechanism, required a very high majority. Proposal of a two round process, with quorum requirement for the first round. Assumption of representatives, which is not yet agreed, amending text around directed voting. Anticipating the lawyers will make recommendations on the single mechanisms later today or on Monday Apr 13 call. Action Robin and Jordan to amend text And text remains bolded. 6.6. Incorporating AOC into the ICANN Bylaws, and 6.6.1 Preserving ICANN Commitments from the AOC . Placeholder for discussion on Monday's call. Should the drafters focus on material that has been moved to mission and core values, or all of the AoC. The latter provides an audit trail of how all the text of the AoC has been handled. 6.7 Stress Test: GAC advice and forcing the board to respond to Advisory Committee formal advice . Only emphasis this parts of the AoC where ICANN is making a commitment: paper 3,4 7, 8. The other text are commitment of the US Govt and other. And AoC para 9 stands alone. And can summarize why the text we selected or ignored. Action: Drafters clarifying the explanation in the text. Some of the ATRT recommendations have to deal with the requirement for transparency etc. But they are ICANN obligations to the AoC statement, can increase slightly the scope of the table to reflect the two ATRT recommendations. Where to put other elements, such as transparency reviews? Note that some recommendations made that are not captured by WP2 or others, and need to be in the document and should be bylaws changes. There is a section about issues to come on WS2, to show that issues will be considered and not forgotten. Drafting changes required, for Monday 13 Apr WP1 meeting. Google doc to comment mode. Core item of business on Monday should be a simple red-line, but main is discussion with the lawyers on their recommendations and the mechanisms. Not to CCWG before the call on Monday. To WP1, circulation of contributions from the drafters by Midnight UTC on 12th. Next WP1 Meeting is Monday, 13 April @ 20:00 UTC Kind regards, Brenda

1 0

Re: [CCWG-ACCT] [Acct-Legal] Fwd: teleconf: external legal advisors and CCWG co-chairs
by Robin Gross April 10, 2015

April 10, 2015

This reminds me of a point I've been meaning to raise. I'd like to request that the meetings of the co-chairs, rapportours, and staff be recorded, transcribed, and posted to the web so we can more easily follow along with the decision making process in the CCWG. Please note that I do not make this request because I suspect any sort of improper behavior at these meetings, but because it would help us to better understand the big picture decisions and issues that we are facing. And since we are an accountability group committed to transparency in our own activities, I would expect there to be no problem with such a request. Thank you, Robin On Apr 10, 2015, at 12:15 PM, Greg Shatan wrote: > Counsel: > > CCWG co-chairs now request a pre-meeting with counsel (relating to the Tuesday presentation) from 18.30 to 19.00 UTC on Monday, April 13. (This was moved to avoid conflicts.) Please let us know if counsel will be available at that time. > > Thanks! > > Greg > > Gregory S. Shatan ï Abelman Frayne & Schwab > Partner | IP | Technology | Media | Internet > 666 Third Avenue | New York, NY 10017-5621 > Direct 212-885-9253 | Main 212-949-9022 > Fax 212-949-9190 | Cell 917-816-6428 > gsshatan(a)lawabel.com > ICANN-related: gregshatanipc(a)gmail.com > www.lawabel.com > > ---------- Forwarded message ---------- > From: Adam Peake <adam.peake(a)icann.org> > Date: Fri, Apr 10, 2015 at 2:54 PM > Subject: Re: teleconf: external legal advisors and CCWG co-chairs > To: Greg Shatan <gregshatanipc(a)gmail.com> > Cc: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, Alice Jansen <alice.jansen(a)icann.org> > > > Thanks Greg. > > Co-chairs and their request for 30 mins with the lawyers on Monday: 18:30 - 19:00 UTC should also be possible for them, could you ask the lawyers about that time? > > Best, > > Adam > > > > From: Greg Shatan <gregshatanipc(a)gmail.com> > Date: Friday, April 10, 2015 at 1:03 PM > > To: Adam Peake <adam.peake(a)icann.org> > Cc: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, Alice Jansen <alice.jansen(a)icann.org> > Subject: Re: teleconf: external legal advisors and CCWG co-chairs > > Request made. > > Greg > > Gregory S. Shatan ï Abelman Frayne & Schwab > Partner | IP | Technology | Media | Internet > 666 Third Avenue | New York, NY 10017-5621 > Direct 212-885-9253 | Main 212-949-9022 > Fax 212-949-9190 | Cell 917-816-6428 > gsshatan(a)lawabel.com > ICANN-related: gregshatanipc(a)gmail.com > www.lawabel.com > > On Fri, Apr 10, 2015 at 12:39 PM, Adam Peake <adam.peake(a)icann.org> wrote: > Hi Greg, > > Jordan has confirmed he would like external legal advisors to join the WP1 call next Monday: CCWG-Accountability WP1 Meeting #9 – Monday 13 April 2015 from 20:00– 22:00 UTC. (expected for 90 minutes, 2 hours as a placeholder) > > Please accept this note as a request for lawyers to join the call. Jordan has distributed an updated document, but I will wait until after today's call before asking you to send to the lawyers. > > And could you check if they will be able to send representatives to join a call with the CCWG co-chairs on Monday at 20:00 UTC? > > Best, > > Adam > > > > From: Greg Shatan <gregshatanipc(a)gmail.com> > Date: Friday, April 10, 2015 at 11:56 AM > To: Adam Peake <adam.peake(a)icann.org> > Cc: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>, Alice Jansen <alice.jansen(a)icann.org> > Subject: Re: teleconf: external legal advisors and CCWG co-chairs > > Adam, > > I'm happy to pass this on. However I note that this overlaps with the CWG-IANA meeting of 19:00-21:00, which may be a problem for Sidley (if they are being called on to be at that meeting) and the 20:00-22:00 WP1 meeting, which may be a problem for both firms. That said, it may be possible for each firm to use their teams to be in both places at once. However, if there is a time that is not so burdened (on my calendar, 17.00-19.00 UTC on Monday is "free."), it might be better to suggest that. To that end, would it make sense to suggest 19:30 UTC instead of 20:00? > > Greg > > Gregory S. Shatan ï Abelman Frayne & Schwab > Partner | IP | Technology | Media | Internet > 666 Third Avenue | New York, NY 10017-5621 > Direct 212-885-9253 | Main 212-949-9022 > Fax 212-949-9190 | Cell 917-816-6428 > gsshatan(a)lawabel.com > ICANN-related: gregshatanipc(a)gmail.com > www.lawabel.com > > On Fri, Apr 10, 2015 at 11:25 AM, Adam Peake <adam.peake(a)icann.org> wrote: > Dear Greg, Leon: > > As you know, the co-chairs are adjusting the agenda of Tuesday¹s CCWG call > (Tuesday 14 April 2015 from 12:00 14:00 UTC) to allow external legal > counsel to provide an overview to the group. Details promised soon. > > In preparation for this, the co-chairs would like to ask representatives > of both firms to join a call with them at 20.00 UTC on Monday 13 April. > Call duration 30 minutes. The co-chairs can also provide a summary of the > CCWG report (we shared the table of contents) during this call. > > Could you pass this request to the lawyers and ask them if members of > their teams will be able to join, and if OK, who we should send calendar > invites to. > > Many thanks, > > Adam > > > > > > > > <smime.p7s>_______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability5

1 0

CCWG-ACCT request for information on CEP
by Burr, Becky April 10, 2015

April 10, 2015

Hello ICANN folks. As you probably know, I am serving on WP2, which is focused on reviewing and proposing reforms/enhancements to existing accountability mechanisms. One issue that has been raised, and about which there seem to be strong feelings, is the Constructive Engagement Process. Could you please point me to documentation for this process, and any rules, guidelines, principles applicable to it. Many thanks Becky Sent from my iPad

1 0

Re: [CCWG-ACCT] Updated CCWG-ACCT Calendar of calls
by Finn Petersen April 10, 2015

April 10, 2015

In the email below it is among other things stated that: "The GAC Representative of Denmark has proposed in Istanbul during the ad-hoc Stress Test Breakfast, what I understand to be a total removal of ccNSO's policy making powers, in favor of governments deciding. Using the words "Out with the Old" he stated that the RFCs must be done away with. I am not clear whether this is the position of the Representative, his government or the GAC, but when read together with the above, this is not acceptable to me." Let me in short repeat the essence of what I said. When there is national legislation giving a public authority the power to redelegate/transfer an ccTLD after a due process, then the IANA function has to follow the instruction from that authority and implement the redelegation. If there is a complaint or challenge concerning the national decision, it must be dealt with within the national appeal/court system - not through an ICANN appeal mechanism or reconsideration mechanism. And it is correct that I mentioned that RFC1591 should be deleted or amended to be in line with the reality of today - or as it was stated very much to the point, "Out with the Old"! Best, Finn Kind regards Finn Petersen Director of International ICT Relations DANISH BUSINESS AUTHORITY Dahlerups Pakhus Langelinie Allé 17 DK-2100 København Ø Telephone: +45 3529 1000 Direct: +45 3529 1013 Mobile: +45 2072 7131 E-mail: FinPet(a)erst.dk www.erhvervsstyrelsen.dk MINISTRY FOR BUSINESS AND GROWTH P Please consider the environment before printing this email. -----Oprindelig meddelelse----- Fra: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] På vegne af Dr Eberhard Lisse Sendt: 8. april 2015 14:16 Til: accountability-cross-community(a)icann.org Cc: cctldcommunity(a)cctld-managers.org; directors(a)omadhina.net; ccnso-members(a)icann.org; cctldworld(a)icann.org Emne: Re: [CCWG-ACCT] Updated CCWG-ACCT Calendar of calls Thank you very much. so next week 3 calls (Tuesday, Thursday, Friday, the latter of which I could not make even if I wanted to (see below))? The following week another three (Monday, and 2 on Tuesday)? More than one call per week is already difficult enough to absorb, but three? And then two on one day? When we are already spending too much time on process and very little on substance? This is not conducive to thoughtful deliberation and as I have said numerous times I am opposed to rushing things through just because of a perceived deadline, which in our case does not even exist in reality. I object to this. And while we are at it, I have asked NUMEROUS times to have the legal foundation of the USG's claim to the root and/or the IANA function researched by our legal advisers. I was told it would be done, but it has not from what I can see and my repeated requests in this regards have been ignored by the Co-Chairs. I have made several requests/suggestions in how to deal with the GAO, which the Co-Chairs do not agree with. Be that as it may, I reserve the rights to communicate my thoughts to the GAO as they have explicitly requested/suggested. I have extremely serious concerns about at least the passage of the German collaborative white paper (or whatever it is called), which as far as ccTLDs are concerned is totally our of order and unacceptable, in as much it suggests that ccTLD/ccNSO policy being taken over by governments (which as we all know is opposed to the USG's stated intent. The GAC Representative of Denmark has proposed in Istanbul during the ad-hoc Stress Test Breakfast, what I understand to be a total removal of ccNSO's policy making powers, in favor of governments deciding. Using the words "Out with the Old" he stated that the RFCs must be done away with. I am not clear whether this is the position of the Representative, his government or the GAC, but when read together with the above, this is not acceptable to me. I have not that many concerns with regards to Delegation of a ccTLD (after establishment), including a Transfer of an exsiting ccTLD. But as far as Revocation of an incumbent ccTLD Manager is concerned, I have stated numerous times, that we need to preserve the existing rights of incumbent ccTLD Managers. This is NOT negotiable. And the best way of doing this is by way of the Framework of Interpretation Principles. Mr Chehade has apparently in public (and on the record) accused senior ccTLD managers of not knowing how the IANA functions work. As a ccTLD Manager with 24 years uninterrupted service I tend to agree that I do not know how the IANA function is operated by the current Function Manager (ICANN), though I do have a really good idea how it SHOULD be operated. Therefor I have requested that Mr Chehade explain to us how this works. I can not find any feedback on this issue. Unless these issues are addressed to my satisfaction (and I am not saying that they must be resolved necessarily to my satisfaction) I shall, as a ccNSO appointed member, be formally objecting to any output of the CCWG-Accountability. I am circulating this to the usual ccTLD lists as well. greetings, el On 2015-04-08 12:10, Brenda Brewer wrote: > Hi Eberhard, > > Please see attachment in pdf format. > > Best, > Brenda [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

2 1

Fwd: Draft Agenda for WP1 Meeting #8 on 10 Apr 1700-1830 UTC
by Jordan Carter April 10, 2015

April 10, 2015

fyi CCWG colleagues - as usual, all members of the CCWG are welcome to attend and participate. Jordan. ---------- Forwarded message ---------- From: Jordan Carter <jordan(a)internetnz.net.nz> Date: 10 April 2015 at 18:44 Subject: Draft Agenda for WP1 Meeting #8 on 10 Apr 1700-1830 UTC To: "wp1(a)icann.org" <wp1(a)icann.org> Hi all I apologise for this but I am running late on the second draft of the comment document, due to my Board meeting in my day job running over time. I hope to have it to you in the next 30-90 mins, but I am sorry it is late. I will include a redline that shows the changes from the version circulated to the group for the last call. In terms of our agenda, we are scheduled for a 90 mins call (the two hours was a placeholder). Please advise additional or different agenda items *asap or at the very start of the call.* I propose the following: *1. Agenda review (2min)* *2. Second draft of public comment report content (60 min)* *We will review this content, and continue to deliberate on it and give instructions to drafters for changes required for the third version.* *At the end we should decide whether any is ready or nearly ready (subject to final changes) to share with the CCWG for its meeting on Tuesday.* *3. Balance among groups in the mechanism (10 min)* *Hopefully a short conversation - to check for consensus or disagreements on the following:* *Is there consensus (pending the full legal advice which we will discuss on Monday's call) on the following propositions:* *a) that the distribution of voting or decisional power in our community mechanism/process should be the same between the SOs (GNSO, ccNSO and ASO) and the ALAC and GAC, with lesser voting power for RSSAC and SSAC.* *b) that in the case of the structure being members or designators or similar, the representation should be structured such that the SGs in the gNSO, and the regions in the GAC, can be individually represented.* *This conversation will tell us useful information about how to manage debate on this item in the CCWG. * *4. Work Plan review and agenda for Monday 13th call (10 min)* *A quick look at our work plan and any further items we need to deal with, and then a look at the proposed agenda for the call on Monday, which looks likely to need to cover:* *-** discussion with legal advisors on their advice delivered on 10 April * *- agreement on basics of the mechanism to propose to deliver our community powers* *- third draft content for review* *- decision about whether any other calls/drafts needed in response to the legal advice or review* *5. Any Other Business* Thanks Jordan -- 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 * -- 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 *

1 0

Re: [CCWG-ACCT] Objection to our present work planning
by Dr Eberhard W Lisse April 9, 2015

April 9, 2015

Tijani, This is easy to solve: We just do NOT accept. The Terms of Reference are very clear on the required consensus of appointed members. I am personally not as sure as you about the quality of the work (which I think I already stated very clearly in Singapore (when I questioned our whole approach, suggesting to start afresh)), the driving forces and their intentions. Can I have your permission to forward this to the wider ccnso/cctld lists? And, should you not perhaps include ALAC, as well? I think accountability and transparency would be served well, if we did. In case I can not post to the council list, Byron or Bart, please forward. el -- Sent from Dr Lisse's iPad mini > On Apr 9, 2015, at 21:23, Tijani BEN JEMAA <tijani.benjemaa(a)fmai.org.tn> wrote: > > Dear all, > > I agree with Eberhard and Roelof. I was one of those who insisted that we don’t have to try to comply with a deadline. Others before me made the same suggestion. We need to work for an agreed proposal by the whole members of this group. But unfortunately, running like we are doing now makes us accept decision with something similar to a consensus because most of the group members can’t stop everything in their job and their personal life to follow the work done by a few very dynamic and committed people who I thank very much for the amount of work they are doing. > > -------------------------------------------------------------------------------- > Tijani BEN JEMAA > Executive Director > Mediterranean Federation of Internet Associations (FMAI) > Phone: + 216 41 649 605 > Mobile: + 216 98 330 114 > Fax: + 216 70 853 376 > -------------------------------------------------------------------------------- > > > > > > -----Message d'origine----- > De : accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Roelof Meijer > Envoyé : jeudi 9 avril 2015 13:01 > À : accountability-cross-community(a)icann.org > Cc : ccnso-council(a)icann.org > Objet : [CCWG-ACCT] Objection to our present work planning > > Dear co-chairs, dear all, > > I find myself in agreement with Eberhard with regard to the steep increase > in the number of calls for both the CCWG as well as its subgroups like wp1 > and acct-legal. > > It frustrates me to see that, after a period during which we burned a lot > of time on -let me politely phrase it as „less relevant and/or out of > scope”- subjects and several of us warned against the deadline becoming > unreachable, we have know replaced the deadline that has become > unrealistic with a work planning that is simply absurd. > > As a result, we now have roughly a two hour conference call every day of > the week, several days with two calls, and thus more calls in a week at > unholy hours. > I object to this way of working, as it makes the whole process far less > inclusive. Many of us have both a demanding job as well as a private life, > both of which we cherish. For me it is now simply unavoidable to miss a > significant part of the calls and impossible to deal with all the > necessary working groups’ work in-between them. I know that this is now > the case for quite a number of us. > > We are rushing forward to reach a deadline which is nothing more by now > than a dead line, and in our hurry seem to accept that the process loses > inclusiveness, transparency and accountability, leaving us with an outcome > that will be of much lower quality. > > I for one, find this unacceptable. > > Best regards, > > Roelof A. Meijer > CEO > > SIDN | Meander 501 | 6825 MD | P.O. > Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS > T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 > roelof.meijer(a)sidn.nl > | www.sidn.nl <http://www.sidn.nl/> > > > > > > > > On 08-04-15 14:15, "Dr Eberhard Lisse" <el(a)lisse.NA> wrote: > > >Thank you very much. > > > >so next week 3 calls (Tuesday, Thursday, Friday, the latter of which > >I could not make even if I wanted to (see below))? > > > >The following week another three (Monday, and 2 on Tuesday)? > > > > > >More than one call per week is already difficult enough to absorb, > >but three? And then two on one day? When we are already spending > >too much time on process and very little on substance? > > > > > >This is not conducive to thoughtful deliberation and as I have said > >numerous times I am opposed to rushing things through just because > >of a perceived deadline, which in our case does not even exist in > >reality. > > > > I object to this. > > > > > >And while we are at it, I have asked NUMEROUS times to have the > >legal foundation of the USG's claim to the root and/or the IANA > >function researched by our legal advisers. I was told it would be > >done, but it has not from what I can see and my repeated requests in > >this regards have been ignored by the Co-Chairs. > > > > > >I have made several requests/suggestions in how to deal with the > >GAO, which the Co-Chairs do not agree with. Be that as it may, I > >reserve the rights to communicate my thoughts to the GAO as they > >have explicitly requested/suggested. > > > > > >I have extremely serious concerns about at least the passage of the > >German collaborative white paper (or whatever it is called), which > >as far as ccTLDs are concerned is totally our of order and > >unacceptable, in as much it suggests that ccTLD/ccNSO policy being > >taken over by governments (which as we all know is opposed to the > >USG's stated intent. > > > >The GAC Representative of Denmark has proposed in Istanbul during > >the ad-hoc Stress Test Breakfast, what I understand to be a total > >removal of ccNSO's policy making powers, in favor of governments > >deciding. Using the words "Out with the Old" he stated that the > >RFCs must be done away with. I am not clear whether this is the > >position of the Representative, his government or the GAC, but when > >read together with the above, this is not acceptable to me. > > > >I have not that many concerns with regards to Delegation of a ccTLD > >(after establishment), including a Transfer of an exsiting ccTLD. > > > >But as far as Revocation of an incumbent ccTLD Manager is concerned, > >I have stated numerous times, that we need to preserve the existing > >rights of incumbent ccTLD Managers. > > > >This is NOT negotiable. > > > >And the best way of doing this is by way of the Framework of > >Interpretation Principles. > > > > > >Mr Chehade has apparently in public (and on the record) accused > >senior ccTLD managers of not knowing how the IANA functions work. > >As a ccTLD Manager with 24 years uninterrupted service I tend to > >agree that I do not know how the IANA function is operated by the > >current Function Manager (ICANN), though I do have a really good > >idea how it SHOULD be operated. > > > >Therefor I have requested that Mr Chehade explain to us how this > >works. I can not find any feedback on this issue. > > > > > >Unless these issues are addressed to my satisfaction (and I am not > >saying that they must be resolved necessarily to my satisfaction) I > >shall, as a ccNSO appointed member, be formally objecting to any > >output of the CCWG-Accountability. > > > >I am circulating this to the usual ccTLD lists as well. > > > > > >greetings, el > > > >On 2015-04-08 12:10, Brenda Brewer wrote: > >> Hi Eberhard, > >> > >> Please see attachment in pdf format. > >> > >> Best, > >> Brenda > >[...]

1 0

Notes-Recordings-Transcript links for Accountability WP1 Meeting #7 8 April
by Brenda Brewer April 9, 2015

April 9, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT WP1 Meeting #7 on 8 April 2015 will be available here: https://community.icann.org/pages/viewpage.action?pageId=52894985 Action Items Action: Matthew to lead the team and produce a mapping table, Avri and Fiona volunteering. target Friday or Monday (13) Action: Jordan to put out a draft to the group. 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 ..Agenda review: new items for the call Stress test call: general community detail, to formally consider advice of a SO/AC. Will be added to the agenda as an additional discussion between items 3 and 4. 3. Working through our draft Comment Report Progress Work items for Apr 6 completed and AoC intro the bylaws also done. Little ahead of schedule. Aim for draft text on the mechanisms, and need discussion with legal advisors to prepare this. No topic about other AoC matters coming into the bylaws. There is no topic in WP1 work about other AoC matters coming into the bylaws. Bringing AoC's into the bylaws, the 4 reviews from the affirmation have been WP1's focus. Affirmation paragraphs 3, 4, 7, and 8 and there are some commitments which also need to be considered. Some of these are reflected in the core values and mission of WP2, but some commitments of the affirmation have not made it through WP2. Use the table to indicate if the commitment is being addressed or not. For example para 8. Each commitment of the AoC needs to be checked that they are making their way into the bylaws in some form. Given the importance of the AoC, then should look at how each item it being addressed, by WP1 or WP2, and if at all. Q. In the AoC one side is USG and other is ICANN. If transferred to the bylaws, who are the two parties, who committed to what and to whom? Response: Legal advice suggests that if no longer two parties, the commitments can be in the bylaws as obligations for the Board to uphold. And if the powers being suggested by WP1 are accepted then the Board would remain committed to those commitments. Not for the CCWG to cancel the AoC, but right for the group to be incorporating the commitments. Check list a good thing. (legal) A number of things being discussed with the legal group are enforcement mechanisms for various rights. Several mechanics talk about creating members, and if done then any of these commitments in the bylaws can be enforced by the members. Tricky to work out the member mechanism, but can be done Action: Mathew to lead the team and produce a mapping table, Avri and Fiona volunteering. target Friday or Monday (13) Discussion document: CCWG-ACCT Working Party 1: Community Empowerment After the call the paper will be opened as a google doc to allow direct editing. Either gives clarity and detail and further understanding for members of WP1. What if members have a comment on substance, what is the moment process now? Response: raise on the call or comments in the document. Text might not reflect agreement. Text in bold highlints issues what have not been agreed (this will be changed to txt inside square [ ... ] brackets. These are issues that should discussed by the group, and raised wth co-chairs. Addition: on removal of individual board members, At Large needs to be included in that ability. Directed vote - the model considered in Istanbul was the community council model, and if that is not adopted it will have consequences for voting. The community council has not been agreed as the mechanism to represent the community, other still under consideration. Are we talking about reconsideration or veto. Sending something back is difference, and this is shown by a different balance between section titles and the body text. Individual board member removal, the imbalance between removing a SO/AC selected Director and a NomCom appointee. Seems under CA law that having people who appointed a director remove a director is not hard. But the power to remove NomCom appointees not as simple. Stress Test team assessed if tests relying on a power of "community veto", which is an element of a number of tests, was necessary. Found that the absence of a community veto would not cause any stress test to fail. The "community veto" was intended to apply to a narrow range of issues; strategic plan, budget, bylaws changes. The powers the CCWG is recommending deal with all those that were proposed for the community veto. (legal) scope of community power over the board. The current organization of ICANN may accomplish WP1's goals, but some of the proposed new mechanisms may disrupt this. The board does have certain fiduciary duties defined by statute. It will be possible to give the community the ability to name those board members who should act in accordance with the bylaws, and remove those members by some means. Can also set up a review mechanisms for fundamental bylaws. But reviewing budget and strategic plan, must be highly specific or my run afoul of the Board's fiduciary responsibility. Holly: "the boards duties to the corporation should be aligned to the communities interests through a well drafted corporate purpose in the articles. The headings might be changed to say "force reconsideration of..." to reflect the need to provide some alternative to what has been prevented by the veto. In the proposal document, if there's not yet consensus on a point, should we present more than one option, or consider an alternative option? And suggest text for or against particular propositions? If options are offered, then the pros and cons of each should possible. And can get guidance on this from the whole CCWG. 4. Discussion (incl with the legal advisors) on how to work out our mechanism Holly Gregory: outline covering legal concerns by the end of the week. How is the community organized: as designator or membership, etc. Primary mechanisms to hold accountability is through the selection of directors, removal of a director or the whole board. The power to approve and disapprove the bylaws including fundamental bylaws also possible. As is the AoC into the bylaws. It seems the community feels directors do not always represent the community's interest, as seems to be the case, it can be useful to have the "corporate purpose" set out in the bylaws, this needs to be fulfilled and is another accountability mechanism for the arsenal. WP1 has worked on some mechanisms, if some of those models allow us the wield powers , we should hear about these. WP1, statutory delegates/designators. Least disruptive. Rights could be given to those designated. Next level is to create a membership. The community council might be shaped like members or designators, and CCWG also shaped as designators, The supervisory board is more complex and moving away from that. To refine and revise the designators would be least disruptive and easiest, but a narrower scope available to designators vs members. Focus on the power WP1 wants to give the community, response will be if legal or not, and then how best to organize those powers (member or designator) and how to decide who will be the representatives on those bodies. Powers: enumerated in the comment document section 6.5. (1) would there be other powers, unlikely to have other rights thru some general veto or otherwise. (2) 6.5.2 power to reject budget to strategy, interferes with normal operation and so needs to be carefully articulated. Stephanie/Steven of Adler. Feel members would be the more viable structure over the budget or very specific decisions. Corporate purpose, great care to get it right, and can be used as an accountability mechanisms (less certain than Holly of this) asking if the corporation is following and if not bring in the attorney general. Powers under 6.3 6.4 6.5. 6.5, could be held for members of designators, Designators standing to sue less clear that members. A model of members of designators. Is there a critical difference between the two? Designator path is similar to what ICANN has, because not involving the big change of creating ICANN as a member org. Changes to the bylaws to clarify the designator role. Members, may be clearer to provide some of be veto and approval rights, fairly certain can do on the model. The least change model is likely to be one the community generally will accept. Templates on Friday will provide further guidance. How to take legal advice is important now. Useful to receive an assessment of the two options, and why going down designator or membership will not allow some powers to be delivered. 5. Agree agenda for 10 & 13 April calls Action: Jordan to put out a draft to the group. 6. AoB None. END

2 1

Reconsideration Request question
by Jacob Malthouse April 9, 2015

April 9, 2015

Dear all, If the IRP is going to be greatly improved by a standing panel, streamlined process, lower cost, and greater accessibility, are there implications for other accountability processes? Is it worth considering whether the ICANN community would benefit from removing the reconsideration request process altogether? The reconsideration request process basically asks the same people who made a decision to take another look at it. That doesn't really strike me as an actual accountability mechanism, but rather more like a second kick at the can. Person: "Officer, I'm sorry I didn't see the school zone. Can you give me a pass?" Officer: "No." Person (reconsideration request): "Please?" Officer: "No." Basically, I am struggling to assess the benefit in the context of the new accountability regime that is developing. All too often groups like this just layer on processes. Perhaps we have a chance to eliminate some red-tape here for the benefit of all. Best, Jacob.

1 0

Reference for legal subteam
by Izumi Okutani April 8, 2015

April 8, 2015

FYI, ARIN has had an opportunity to take a looks at ICANN's Bylaws with legal feedback from its lawyers, which may be of an interest for legal subteam. This is just sharing it for your reference, simply some legal research work that ARIN sought & which may be useful for the CCWG's groups reference and not a recommendation. Thanks, Izumi

9 13

Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
by Brenda Brewer April 8, 2015

April 8, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #18 call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477 Action Items * ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join * ACTION ITEM: Raise with legal advisors (through legal sub team): * ACTION ITEM: Cochairs to specifically review notes on jurisdiction. * ACTION ITEM: Review new version of mission statement later this week. * ACTION ITEM: WP2 to refine the proposals for reconsideration * ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders * ACTION ITEM - CCWG to liaise with ICG Chairs * ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). * ACTION ITEM Follow up on GAO matter on mailing list. Notes These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript 1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed. Legal Subteam Methods & Updates León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents. Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list. Feedback: - All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model --> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights. - When posting concerns on main mailing-list, include header. CONCLUSION: Working Methods are adopted - this issue is closed. Adler & Colvin - Preliminary responses to 10 questions Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators. * * Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary); * Self-perpetuating Board may not be something you will use; * Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure; * Neither members nor designators have fiduciary duty unlike directors; * California law principles designates Board as ultimate authority; * If members or designators are unhappy with Board performance, they can remove particular director or Board; * Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group. - This document will be reviewed in detail on Wednesday, 1 April during legal subteam call. - Q2 Responsibilities and liabilities (fiduciary). - Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc. - Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent. - Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest? - Q6 Board bound to accept IRP decisions e.g. contract or super board structure. - Q7 Attorney General: unlikely unless assets are misused. - Q8 How incorporate of AoC into bylaws. - Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider. - Q10 Suggested steps to manage litigations risks. ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join Sidley & Austin - There seems to be overlap between questions asked to A&C and S&A. - CCWG has a lot of tools to accomplish what it needs how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met. - A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed. - Antitrust: it is an issue you have to be mindful of but no significant concerns. WP2 Fundamental Bylaws CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board. Jurisdiction - Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement. - Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2. Feedback: - A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work. --> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this. - Is there something that we have identified that cannot be accomplished according to California law? - This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating --> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up. --> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues. --> Input from Pedro (Brazil), Arun --> Jurisdiction is #1 question within French Business constituency and civil society. - Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled. --> Let's focus on facts and requirements instead of second-guessing political implications. --> Sovereignty concerns from governments when dealing with national courts --> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed. - It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2. ACTION ITEM: Raise with legal advisors (through legal sub team): * What extra accountability would be brought to community if AoC article 8 was incorporated; * Balance of jurisdiction need to further explored. ACTION ITEM: Co-chairs to specifically review notes on jurisdiction. WP1 Community Mechanism - WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG. - CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made. AoC reviews - Migrating 4 reviews into Bylaws with suggested improvements. - Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance). - CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary WP2 mission & Core Values - A revised document was circulated to reflect input from Istanbul (substance and format). - We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input. ACTION ITEM: Review new version of mission statement later this week. WP2 Independent Review No further discussion on this item. CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice. W2 Reconsideration Process - Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction. - Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc); - Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process. - Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases. - Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision. - Implementation: Follow-up process regarding implementation of the decision. - Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened. Feedback: What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects? --> In order to get IRP, reconsideration request would need to be filed. We should spell this out, --> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed. - Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard? --> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation. - Potential paradox between extending timeline for filing and timely issuance of decisions. ACTION ITEM: WP2 to refine the proposals for reconsideration - Call for agreement on whether this is WS1 CONCLUSION: Reconsideration process is WS1. ST-WP - Informal meeting held in Istanbul to discuss #21 (delegation/redelegation). - Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week. ACTION ITEM: Staff to circulate ST-WP call invites. - Edits added to # 21, added new stress. - Veto (supermajority) is distinct from IRP and reconsideration. - CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals. Timeline - Target date for finalizing recommendations is April 20. - Need to provision for 2 public comment periods. - ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss. - Berry Cobb walked the group through timeline update - <https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline… modificationDate=1427802208876&api=v2> https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline… odificationDate=1427802208876&api=v2 Feedback: - Public comments before SO/AC endorsements. - Public comments could not amend outcome unless go back to SO/ACs. - What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be? -> Objective is to get input from SO/ACs at each public comment phase. -> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change. - Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal? - Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires. - Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc. ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders - CoChairs will touch on expected timeline when coordinate with CWG Cochairs. - Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting) ACTION ITEM - CCWG to liaise with ICG Chairs Engagement ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). AOB ACTION ITEM Follow up on GAO matter on mailing list.

13 24