- Accountability-Cross-Community

Draft criteria for comparison of accountability mechanisms
by RENU SIROTHIYA March 18, 2015

March 18, 2015

Dear Colleagues, Drawing from the Mathieu's propositions, I propose a matrix for comparative mapping. Version 1 workbook is attached, if agreed then it may be further developed, refined, populated, and weights may be assigned and added to reach conclusion. * Inline text not in matrix form. *Parameters and Questions to Map and Compare Effectiveness of Accountability Options * *Comparison Parameter* *Corresponding Questions* *Option A* *Option B* *Option C....* Legitimacy Is one of the options more legitimate in its nature due to higher scope for transparency, inclusivity and rationality? Legality Is legality of one of the options more apparent and/or easy to establish? Feasibility (Practical) Is implementation of one of the options more practically feasible due to exclusivity of system, simplicity of design and legality of process? Viability (Financial) Is one of the options more viable due to the simplicity of operation, including of level of attention and resource required from the community to make the mechanism work? Acceptability (Recognition) Is one of the options more supported and recognized due to historic reasons or current legal and stability concerns? Rationality Is explaining one of the options, internally and externally more easy due to its rationality and simplicity of design? Utility Does one of the options provide improved review and redress? Inclusivity Does one of the options provide better consultation and extend accountability to more relevant stakeholders? Indispensability Is one of the options indispensable due to some legal and strategic reasons? Tenacity Is one of the options more tenacious due to higher potential of ensuring check and balance and predictability on one hand, and of mitigating capture and immunities on other? Regards, Renu Sirothiya On Mon, Mar 16, 2015 at 10:33 PM, Mathieu Weill <mathieu.weill(a)afnic.fr> wrote: > Dear Colleagues, > > Apologies for first cut off email. > > A discussion was raised with WP1 about how we would reach decisions when > comparing various options for the accountability mechanisms we are working > on. > > In anticipation of our CCWG call please find below a first draft list of > questions which should enable us to, at least, clarify the merits of the > various options before we reach conclusions. This is of particular > importance before our meeting in Istanbul. > > You will be provided an opportunity to comment during the call tomorrow, > but this can also be achieved via mailing list. > > Best, > Mathieu > --------------------------------------- > Key criteria to compare options : > > 1) Comparing enhancements to accountability > > a) Aspects of accountability > - does one option provide greater transparency ? > - does one option provide better consultation ? > - does one option provide improved review ? e > - does one option provide improved redress ? > > b) Qualities of accountability mechanisms > - does one option provide better checks and balances ? > - does one option provide better independence ? > > c) Stakeholders : does one option extend accountability to more > relevant stakeholders ? > > d) Purpose : does one option enable accountability to more of the > relevant accountability purposes ? > > 2) Effectiveness : Would one of the options be more effective ? > > 3) Simplicity : is one option simpler / easier / faster to set up ? > a) Simplicity of design - what is the level of simplicity to > implement and to explain, internally and externally? > b) Simplicity of operation - what is the level of attention and > resource required from the community to make the mechanism work? > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community >

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Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
by David Post March 18, 2015

March 18, 2015

At 10:41 PM 3/15/2015, Rahul Sharma wrote: >+1Â David and Phil > >Â > >Since IRP is only meant to review if Board >decisions are in line and consistent with >procedures and principles established, and as >such cannot challenge any Board decision, a Body >that ensures that ICANN adheres to international >laws, and if its decisions are legitimate or not >Â and should be challenged should be (1) an >independent body, constituted by a process >independent from ICANN and (2) and have >expertise in international law, and not just commercial arbitration Rahul: Just to be clear: it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws." In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits. I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process. David >On 16 March 2015 at 05:10, Phil Corwin ><<mailto:psc@vlaw-dc.com>psc(a)vlaw-dc.com> wrote: > >Thatâs exactly right, David, and what we just >saw in the IRP brought by Booking.com over the >finding that .Hotels and .Hoteis were in the same new gTLD contention set > >Â > >The available accountability mechanisms were >restricted to reviewing whether proper procedure >had been observed, but could not reach the >admittedly questionable merits of the original >decision that found them confusingly similar at the gTLD level. > >Â > >So when should the merits of a Board decision be >susceptible to modification or reversal, who has >standing to bring such a challenge, and what >should be the standard of review? Important questions, and not easy to answer. > >Â > >Philip S. Corwin, Founding Principal > >Virtualaw LLC > >1155 F Street, NW > >Suite 1050 > >Washington, DC 20004 > >202-559-8597/Direct > >202-559-8750/Fax > >202-255-6172/cell > >Â > >Twitter: @VlawDC > >Â > >"Luck is the residue of design" -- Branch Rickey > >Â > >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 David Post >Sent: Sunday, March 15, 2015 9:26 AM >To: Accountability Cross Community >Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law" > >Â > >At 08:16 PM 3/14/2015, Bruce Tonkin wrote: > >Under its Articles of Incorporation ICANN >already operates Ã¢for the benefit of the >Internet community as a a whole, carrying out >its activities in conformity with relevant >principles of international law and applicable >international conventions and local law.Ã¢ÂÂ >Â See: ><https://wwww.icann.org/en/about/governance/articles>https://www.icann.org/en/about/governance/articles > >The Independent Review Process allows parties to >challenge Board decisions that are inconsistent >with the Articles of Incorporation or Bylaws. > >[SNIP] > > >Just by way of clarification, while it's true >that the IRP allows parties "to challenge Board >decisions that are inconsistent with the >Articles of Incorporation or Bylaws," the IRP >panel does not have the power to actually decide >the question of whether or not a Board decision >WAS inconsistent with the Articles or Bylaws.Â See Bylaws, Art IV sec 3(4): > >"The IRP Panel must apply a defined standard of >review to the IRP request, focusing on: > * did the Board act without conflict of interest in taking its decision?; > * did the Board exercise due diligence and > care in having a reasonable amount of facts in front of them?; and > * did the Board members exercise independent > judgment in taking the decision, believed to be > in the best interests of the company?" > >That's a much narrower scope of inquiry than >whether the Board acted outside the ByLaws, for example. > >David > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) ><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post >book (Jefferson's >Moose)Â ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2nÂ >Â Â Â Â >music ><http://tinyurl.com/davidpostmusic>http://tinyurl.com/davidpostmusic >publications etc.Â http://www.davidpost.comÂ Â Â Â Â Â Â >******************************* > >No virus found in this message. >Checked by AVG - <http://www.avg.com>www.avg.com >Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15 > >_______________________________________________ >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 > ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Notes-Recordings-Transcript links for CCWG ACCT Session #17 17 March
by Brenda Brewer March 18, 2015

March 18, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #17 call on 17 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52890273 Action Items ACTION ITEM: Raise outstanding issues upfront for meeting to be productive. Notes All participants in the adobe connect room Next stop: Istanbul Link to information about the Istanbul <https://community.icann.org/pages/viewpage.action?pageId=52890276> https://community.icann.org/pages/viewpage.action?pageId=52890276 WP1 and WP2 will hold informal meetings on Sunday afternoon: * * WP1: 16:00 - 17:30 * WP2: 17:30 - 19:00 * followed by cocktails XPLANE will support the F2F meeting. Following discussion in WP1 about how we would reach decisions when comparing various options for the accountability mechanisms we are working on, document "comparing accountability mechanisms" sent to the CCWG list. Purpose is to propose options, based on work we have been doing to date rather than introducing new ideas at this stage. The spreadsheet is not proposed as a full tool to compare the qualities of one mechanisms against another. If certain parameters are present for some mechanisms but not for other then will help us in the substance of discussions Activity reports WP1 report Jordan Carter * Last WP1 call consider how to write mechanisms on the the bylaws, the community veto and the updated template. And the new mechanism of the community council. * Question of jurisdiction keeps coming up, need to agree how to handle this or it may become a problem * The existing SO/AC model is based on decisions based on their own democratic processes and own thresholds and aggregated across the collective SO/ACs. Other suggestion is for the creation of a community council mandated by the SO/AC, with either directed or independent vote. And members discuss issues. * Questions being asked if each SO/AC should have the same weight in the decisions making process. * There are difference between mandated and non-mandated decisions. * with WP1 powers when talking about veto etc are very far from the usual policy making decisions of ICANN. There should be high thresholds. * Currently working on a tool to test how voting behavior of different groups will impact the outcome. Some mechanisms may have a lower voting threshold than others. WP2 Becky Burr * Core deliverables will be on the mission statement, community values. Will be prepared for March 20 and distribution. * Good discussion of independent review and expect good outcomes * work stream on ombudsman and reconsideration have had a lower start and will be the focus of informal meeting on Sunday in Istanbul * The constitution" document, and about to what extent, if any, ICANN's mission statement should be allowed, and the evolution of the mission should be a very high bar. Is there a need for * a constitutional court in addition to an independent review. Group seems to be favoring and combination. * Discussion about access ti the independent review and constitutional court are accessible both from point of view of standing and cost (looser pays, frivolous claim) * Mission statement core values: the group considers it important to ensure that there is no mission creep. Should there be a specific statement outlining what ICANN is trying to achieve. A vision statement might be useful, perhaps noting the security, stability, interoperability and resiliency of the Internet through coordinating the unique among and numbering system. Stress Test Working Party * The test regarding GAC consensus advice and requirements of the bylaws for the Board to act in response. Thomas Schneider's letter in response to co-chair's communication about the test. * All 25 stress tests have been drafted against the current mechanisms were have designed. * Tests 1 and 2, combined: * Change if delegation authority for IANA rootzone ceases to function. This is a test is an attempt to cover the needs of the CWG. The current contract held by NTIA could be revoked by NTIA, and this provides leverage. * Test 11. Compromise of credentials. Regarding security breaches and ICANN's standards for security training, follow-through on required training. To be able to enforce implementation of adopted security standards. Not directly related to the transition. Legal sub-team * Close to reaching agreement, had calls with a number of law firms. Call tomorrow (18 March) to finalize agreement. And hope to have representation from the external legal advisors present in Istanbul. Further refinement of the scoping document is required. * Will the legal firm be able to answer questions about international jurisdiction matters, or is this a matter for the CCWG expert advisors? * Might ask the experts while in Istanbul why we are talk about jurisdiction. CCWG colleagues might agree on what the requirement for jurisdiction debate are. Outstanding issues to be dealt with in Istanbul ACTION ITEM: Raise outstanding issues upfront for meeting to be productive. Public comment approach structure of public comment, using question format and allowing for free form replies. Desire is to structure the public comment to the format of WP1 WP2 and stress tests. Asking questions about the approach, do you support or not. With a free form text field to allow comment to explain their answers. Anticipate large number of comments. Concern noted about the time line and that we will have a final proposal for WS1 by April 6. We are proposing significant changes to ICANN's organizational structure. Need to receive legal advice. And then go to our communities for their views, and then may be ready for public comment. The timeline will be an important discussion point for Istanbul.

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NEW: Calendar Invites direct to your email address
by Brenda Brewer March 17, 2015

March 17, 2015

Dear CCWG, The ACCT-Staff would like to expedite the email information you receive regarding meeting calendar invites. We currently send you an iCalendar notice through the Notify list 24 hours prior to the call that you must download to your calendars. Going forward, we will move to send a calendar invite directly to your email address with as much lead time of event as available. If, for privacy purposes, you wish to NOT receive calendar invites directly to your email address, please advise me at <mailto:brenda.brewer@icann.org> brenda.brewer(a)icann.org. If you do not want calendar invites directly to your email address you will continue to receive iCalendar invites 24 hours prior to call through the Notify list. As always, the meeting schedule is posted on the CCWG Wiki <https://community.icann.org/display/acctcrosscomm/Meetings> here and on the calendar <https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+A…> here. Thank you for your attention to this request. I'm happy to answer any questions you may have. Kind regards, Brenda Brewer brenda.brewer(a)icann.org

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Draft criteria for comparison of accountability mechanisms
by Mathieu Weill March 17, 2015

March 17, 2015

Dear Colleagues, Apologies for first cut off email. A discussion was raised with WP1 about how we would reach decisions when comparing various options for the accountability mechanisms we are working on. In anticipation of our CCWG call please find below a first draft list of questions which should enable us to, at least, clarify the merits of the various options before we reach conclusions. This is of particular importance before our meeting in Istanbul. You will be provided an opportunity to comment during the call tomorrow, but this can also be achieved via mailing list. Best, Mathieu --------------------------------------- Key criteria to compare options : 1) Comparing enhancements to accountability a) Aspects of accountability - does one option provide greater transparency ? - does one option provide better consultation ? - does one option provide improved review ? e - does one option provide improved redress ? b) Qualities of accountability mechanisms - does one option provide better checks and balances ? - does one option provide better independence ? c) Stakeholders : does one option extend accountability to more relevant stakeholders ? d) Purpose : does one option enable accountability to more of the relevant accountability purposes ? 2) Effectiveness : Would one of the options be more effective ? 3) Simplicity : is one option simpler / easier / faster to set up ? a) Simplicity of design - what is the level of simplicity to implement and to explain, internally and externally? b) Simplicity of operation - what is the level of attention and resource required from the community to make the mechanism work?

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AGENDA - Call # 17
by Alice Jansen March 16, 2015

March 16, 2015

Dear all, Below you will find a proposed agenda in preparation for your call #1<https://community.icann.org/pages/viewpage.action?pageId=52890273>7<https://community.icann.org/pages/viewpage.action?pageId=52890273> - Tuesday, 17 March - 19:00-21:00 UTC: -- 1. Welcome, roll-call & SoI 2. Next stop: Istanbul Tentative agenda, Xplane Criteria to compare options Expectations to have documents ready by March 20 3. Activity reports WP 1<https://community.icann.org/display/acctcrosscomm/WP1+--+Community+Empowerm…> WP 2<https://community.icann.org/display/acctcrosscomm/WP2+--+Review+and+Redress> ST-WP<https://community.icann.org/display/acctcrosscomm/ST-WP+--+Stress+Test+Work…> Legal Subteam<https://community.icann.org/display/acctcrosscomm/Legal+SubTeam> 3. Outstanding issues to be dealt with in Istanbul 4. Public comment approach 5. A.O.B 5. Closing remarks -- Agenda item 2: please refer to the attached document. Thanks, Best regards Alice

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Draft criteria for comparison of accountability mechanisms
by Mathieu Weill March 16, 2015

March 16, 2015

Dear Colleagues, A discussion was raised with WP1 about how we would reach decisions when comparing various options for the accountability mechanisms we are -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
by David Post March 16, 2015

March 16, 2015

At 08:16 PM 3/14/2015, Bruce Tonkin wrote: >Under its Articles of Incorporation ICANN >already operates âfor the benefit of the >Internet community as a whole, carrying out its >activities in conformity with relevant >principles of international law and applicable >international conventions and local >law.â See: https://www.icann.org/en/about/governance/articles > >The Independent Review Process allows parties to >challenge Board decisions that are inconsistent >with the Articles of Incorporation or Bylaws. > >[SNIP] Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws. See Bylaws, Art IV sec 3(4): "The IRP Panel must apply a defined standard of review to the IRP request, focusing on: * did the Board act without conflict of interest in taking its decision?; * did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and * did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?" That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Re: [CCWG-ACCT] accountability of private sector organizations
by Bruce Tonkin March 15, 2015

March 15, 2015

Hello Rahul, >> ICANN is a not-for-profit private organization based out of California. According to applicable laws, I understand that Board of private sector organizations are accountable to none. Often Boards of private sector organizations are accountable to the shareholders of the organization. Many non-profit organizations have the Board directly accountable to the members of the organization (this is a fairly common arrangement for some ccTLD managers). As ICANN doesn’t directly have members, the Board is appointed through a combination of the various members of the supporting organizations (SO) and advisory committees (AC) that make up the ICANN community. Some Board members are appointed by a single supporting organization, and other board members are appointed by a nominating committee, which itself comprises members appointed by the SOs and ACs. Board Directors are appointed to terms of three years, which are staggered over time so that the whole board can’t change at once. At the end of each three year term, a Board Director is subject to a re-election process. Board Directors can serve a maximum of three consecutive three year terms ( I.e. total of 9 years). From my perspective ICANN is directly accountable to the ICANN community (comprising the members of the SOs and ACs), but under its Articles of Incorporation it operates for the purpose of promoting the global public interest in the operational stability of the Internet. I personally don't think it is correct to say that the Board is "unaccountable" - but I think it is fair to say that the Board can be made more tightly accountable to the community (e.g. through mechanisms to remove one or more board members in the middle of their terms, and better dispute mechanisms). The CCWG has been looking at mechanisms to allow either the replacement of individual Board members mid-term, or the whole Board based on certain parameters. There have also been discussion about implementing some form of membership organization structure for ICANN – and I understand that this will be subject to some of the external legal advice available to the CCWG. Regards, Bruce Tonkin

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Regarding ICANN's adherence to "international law"
by Bruce Tonkin March 15, 2015

March 15, 2015

Hell Rahul, >> Global laws or International law mean codes developed by collaboration of nation states and other stakeholders, whether developed as laws (eg: Law of Armed Conflict) or through multilateral treaties or International acceptable standards/ conventions (such as for human rights) or as code of conduct, that will be applicable to the body managing and coordinating critical Internet resources and their usage, and its policies. Arbitration matters can also be decided - whether to be taken to International Court of Justice (ICJ) or if alternate arrangements need to be devised. Under its Articles of Incorporation ICANN already operates “for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.” See: https://www.icann.org/en/about/governance/articles The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws. Although most international treaties etc are typically between Governments, I would assume that if the Board took an action that was inconsistent with relevant principles of international low or application international conventions – that the Board could be challenged. It would be worth considering making this more explicit in whatever new dispute mechanisms this group is considering. I guess it is a separate question as to whether Governments should be creating new international treaties to deal with domain names etc – I am a little unclear as to whether that was what you were suggesting – i.e. the creation of new international treaties versus ensuring that ICANN adheres to existing relevant international treaties. It could also be useful to identify treaties etc that the CCWG considers to be “relevant”. Note that new gTLD applicant guidebook identified general principles of international law as examples that may be relevant for a limited public interest objection, contained in the following instruments: (from: http://newgtlds.icann.org/en/applicants/agb/guidebook-full-04jun12-en.pdf) - The Universal Declaration of Human Rights (UDHR) - The International Covenant on Civil and Political Rights (ICCPR) - The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) - The International Convention on the Elimination of All Forms of Racial Discrimination - Declaration on the Elimination of Violence against Women - The International Covenant on Economic, Social, and Cultural Rights - The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment - The International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families - Slavery Convention - Convention on the Prevention and Punishment of the Crime of Genocide - Convention on the Rights of the Child Regards, Bruce Tonkin

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