- Accountability-Cross-Community

Declaration issued in the Booking.com v ICANN IRP
by Samantha Eisner March 14, 2015

March 14, 2015

ICANN received today the final declaration in the independent review proceeding filed by Booking.com<http://Booking.com>. The declaration can be found at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf. Best, Samantha

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Work Stream 1 and Work Stream 2: Comments based on impressions from Meeting Notes.
by Sivasubramanian M March 14, 2015

March 14, 2015

Hello I was not present for the Legal Sub Team call https://community.icann.org/pages/viewpage.action?pageId=52891852 on 10th March and have not listened to the recording either. This comment is based on the Introductory section of the Meeting Notes, which might not be points discussed at length during the Sub Team meeting, quoted below, and raised here as a point to consider by the whole group: Notes: 2. Brief Discussion: > > - WS2 - no need to be in place before transition takes place but needs > to take place post transition. > > > Three items need to be put in place as part of WS1. > > - Recalling members of the ICANN board of directors. > > > - Community empowerment over ICANN’s management. > > > - Limiting the scope of ICANN’s activity. > > - One of the several proposals for Work Stream 2 was based on the rationale that pre-transition changes to the Accountability framework is minimal with major improvements to discussed and carried out on an ongoing basis post transition. With almost zero discussion on Work Stream 2, without even the formation of work stream 2, it is highly undesirable to think of such changes to the Accountability framework as the inclusion of provisions to recall members of the Board, limiting the scope of ICANN's activity or even Community empowerment over ICANN management. Within a well-considered and larger Accountability environment such changes could be effected in phases, in tune with a larger and clearer blue print, but without even a beginning on such a blue print, it is unwise to think of the changes as proposed for WS1. These provisions, if included pre-transition and in a rush, could prove counter productive. I would propose the bare minimal improvements to the Accountability framework, if such improvements are to be made in a rush. At best, WS 1 could discuss such changes but leave it for implementation post transition, after more elaborate thinking. Sivasubramanian M Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy>

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Testimony from Fadi Chehade at the USA Senate hearing
by Bruce Tonkin March 14, 2015

March 14, 2015

Thanks for the link David. I have attached the PDF of the testimony for convenience. Regards, Bruce Tonkin From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of McAuley, David Sent: Friday, 6 March 2015 12:16 AM To: Kavouss Arasteh; Drazek, Keith Cc: ACCT-Staff; ccwg-accountability4(a)icann.org; Accountability Cross Community Subject: Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Hi Kavouss, At this website is an archived video of the Senate hearing, and you scroll down (all the way under “Witness panel 1”) and click on each witness you can get access to their prepared remarks: http://www.commerce.senate.gov/public/index.cfm?p=Hearings&ContentRecord_id… Best regards David

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Update of document on definition & scope
by Mathieu Weill March 14, 2015

March 14, 2015

Dear Colleagues, As you will remember, our draft document was circulated to the Advisors for feedback after our meeting in Frankfurt. You will find the latest version attached, both in edit as well as clean mode. The document has benefitted from substantial and very well documented input from Advisors, and I believe it now provides a solid basis for our future report and call for comments. In the name of the co-chairs, I want to express our gratitude to all contributors. The various versions will be added to the Wiki shortly. Best, -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Notes-Recordings-Transcript links for CCWG ACCT WP1 Meeting #4 11 March
by Brenda Brewer March 14, 2015

March 14, 2015

Dear All, The notes, recordings and transcripts for the WP1 Meeting #4 - 11 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52891346 Action Items Action: Jordan to ask the co-chairs as to how to deal with the jurisdiction issues Action: staff to send announcement for next call, 21:00-23:00 UTC Wednesday 18 March Notes 1. Consideration of Agenda Items for the agenda? No 2. Report back from CCWG meeting How to approach the meeting in Istanbul. Sense from co-Chairs, that any controversial or difficult issues have been socialized on a CCWG call 3. Discussion of Work Items in progress WP1 work start charts. Work on the issues in red, except 6a 6b. Nor work on defining GAC consensus Bylaws matter and his AoC matters that had not been addressed by Steve: 3, 4, 7, 8 Document: Proposal for incorporating elements of the AoC into the ICANN bylaws. Recommendations for text that should be taken into the bylaws. Note about the AoC language on jurisdiction issue. Bylaws are silent on ICANN remaining an not for profit while the AoC commits and operating as multi-stakeholder organization for the benefit of the public.. Suggestion that jurisdiction may be one issue that may need to be shelved when moving AoC text into the bylaws There has been an expectation set about remaining a US corporation, with CCWG email discussion about letters from Senator Rubio (+ others) Action: Jordan to ask the co-chairs as to how to deal with the jurisdiction issues * AoC document access 5b 1 and 2. Text from the scope, powers and mechanisms document as starting point "prevent ICANN from imposing obligations on others unless needed to operate DNSCreate an Accountability Contract between ICANN and Registries, Registrars, and Registrants. Contract lets ICANN impose rules on others only when supported by consensus of affected parties and necessary to protect operation of the DNS. Disputes go to independent arbitration panel that could issue binding decisions.-or-Describe this limitation in a 'golden' Bylaw or Article that cannot be amended by any means." Golden rule not needed, a founding document or constitution more appropriate, and agreement with this thou off topic and more for WP2 and the compact Keith to continue on work on clarifying ICANN's technical mission, this has been transitioned to WP2 and continues WP1-7A: Removing ICANN Board Asked to considered ways to remove the whole board a new power, but a triggered mechanisms so belong is WP1 Need somebody to do it. Suggesting a community council to do this Proposal suggests that the community council should be somewhat separated, giving more accountability. Will be a issue for discussion. Members appointed by SO/AC for 1 year. Frequent election and barring of long terms to keep dynamism. Q: does the proposal work for other structures (supervisory board etc)? A: ecision thresholds, caretaker mechanism could be the same. Is a new body (cc) required? When the SO/AC structures exist? A. a number of powers giving the community, (bylaws approvals etc) and a new body may come together to consider those. The SO/AC structures not able to do this, too autonomous. May ask Advisors to consider this. CC as a type of senate. Of the community but slightly detached. Standing described is a very high bar. Should it have lower level of triggers? Is it a nuclear option, Or is it a means for some part of the community to raise very significant concerns with the rest of the community. Community veto. community veto. a process to challenge certain boar d"high end" decisions, a discrete set of pre-determined issues. Two SO to trigger a challenge, and then for the community to consider a veto under their own procedures. The Board then takes a subsequent vote to consider the community decisions or to reject the veto, but that set to a very high standard, 4/5 etc of voting. And if vetoed it would be sent back to the community for further work and adoption by the organization. An equivalent to the community council. discussion needed on which mechanisms are preferred. 1a and b. Looked at member structure, for update on legal issues with a final version next week 4. Next steps in our work 5. Next Meetings Agenda 4 & 5 Wed 18 At 21:00 UTC for 2 hours. Meeting Sunday in Istanbul, but remote participation not possible - not for formal work but more swapping of work. Action: staff to send announcement for next call, 21:00-23:00 UTC Wednesday 18 March

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Impact of accountability measures
by Jorge.Cancio＠bakom.admin.ch March 13, 2015

March 13, 2015

Dear all I would just like to share a general thought with you: I wonder whether the different accountability mechanism descriptions/proposals will be presented with an assessment of their impact on the "power structures" within ICANN and on the appropriate balance between parts of the community, most conductive to serve the global public interest. Perhaps I'm missing this part as I've joined this process rather recently, but I'm not seeing this aspect covered in the templates and proposals of accountability measures Best Jorge Cancio International Relations Federal Department of the Environment, Transport, Energy and Communications DETEC Federal Office of Communications OFCOM Zukunftstrasse 44, CH 2501 Biel Tel. +41 58 460 54 58 (direct) Tel. +41 32 327 55 11 (office) Fax +41 58 460 54 66 mailto: jorge.cancio(a)bakom.admin.ch www.bakom.admin.ch

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Re: [CCWG-ACCT] [ST-WP] Additional Stress Test for consideration
by Dr Eberhard W Lisse March 13, 2015

March 13, 2015

Yes, this is visible during revocation and transfer of ccTLDs and we must address it from this general level. Greetings, el -- Sent from Dr Lisse's iPhone 6 > On Mar 13, 2015, at 01:51, Edward Morris <egmorris1(a)toast.net> wrote: > > Hi everybody, > > > > During a call today regarding ICANN’s transition and accountability, David Post called for development of a stress test we don’t currently have. I’d like to present it to the sub-group for consideration with the recommendation we act positively on his recommendation. > > > > This would belong in Stress Test Category Four: Failure of Accountability. > > > > The problem is one some of us believe we’ve encountered with increasing frequency at ICANN: staff substituting their policy preferences for the policy developed through proper processes. Staff could do this intentionally or unintentionally. The result is the same. > > > > In this scenario a policy is properly developed (most often through a PDP) but when implementing the policy staff creates processes that effectively change or negate the policy developed. > > > > This is a major accountability problem and we don’t seem to be testing to ensure we have proper accountability processes in place to deal with it. I’d suggest we do so. I’m happy to help with this as needed. > > > > Thanks for considering. > > > > > > > > Edward Morris > > > > _______________________________________________ > Ccwg-accountability4 mailing list > Ccwg-accountability4(a)icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability4

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A thought on the legal team selection
by Avri Doria March 12, 2015

March 12, 2015

Hi, I am not asking to be an observer of that team. A thought I had on the advantage of a different team than the one CWG has selected. Using an analogy: When getting major surgery, it is good to have separate opinions. When they agree, you are probably ok, when they don't there is more discussion to be had before going under the knife. avri --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com

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Can we use the CCWG calendar to post when meetings are to take place?
by Robin Gross March 11, 2015

March 11, 2015

May I please request that all of the various CCWG sub-team and working party meetings that get scheduled are listed on the CCWG calendar?: https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+A… It has become to difficult to keep track of when each of the various subgroup and working party meetings are happening using email alone. This is especially true for those of us who are in several of the sub groups. The amount of email is overwhelming and so using only email to inform when mtgs are happening will result in accidentally missed meetings. So I'd like to request that when the mtg gets scheduled and the announcement goes out, could the mtg also be posted to the CCWG's calendar, please? Thank you, Robin

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Notes-Recordings-Transcript links for Accountability Legal Subteam - 10 March
by Brenda Brewer March 11, 2015

March 11, 2015

Dear all, The notes, recordings and transcripts for the CCWG Accountability LEGAL SubTeam call on 10 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52891852 Action Items ACTION ITEM: Provide more clarity on timeline as soon as possible. ACTION ITEM: Verify CWG would have no objection if CCWG deduces to engage with same firm Notes Aim of call: Determine if Sidley has expertise and skills the CCWG is looking for to provide independent legal advice the CCWG needs to build proper proposal for ICANN's transition. 1. Introductions Call participants introduced themselves. 2. Brief Discussion CCWG stems from need to enhance ICANN accountability mechanisms. CCWG is looking at existing accountability mechanisms and trying to determine which mechanisms need to be integrated for a smooth transition. Work has been divided into Work Streams: * * WS1 - mechanisms fairly committed or put in place by transition; * WS2 - no need to be in place before transition takes place but needs to take place post transition. Main focus of the CCWG is to determine: how to appropriately enhance ICANNs accountability to its community in the absence of the historical back stop of the U.S. Government after the conclusion of their historical relation when the IANA managing functions contract ends. A lot of external advice is needed. CCWG has reached out to ICANN legal first to obtain initial feedback but is also looking for independent advice. A draft scoping document is available at. <https://docs.google.com/document/d/132V7P8nmyalhoso7zcevjW3_ox1laXn5JIEH3dD…> https://docs.google.com/document/d/132V7P8nmyalhoso7zcevjW3_ox1laXn5JIEH3dD… Three items need to be put in place as part of WS1. * * Recalling members of the ICANN board of directors. * Community empowerment over ICANNs management. * Limiting the scope of ICANNs activity. Timeline is a real challenge. The CCWG is focused on making ICANN the best organization it can be for the purpose it is serves. 3. Discussion - Transparency is essential . Do you have any issues with your advice being made public available? --> Sidley is very comfortable with advice being public: it had this conversation with CWG and crosschecked process with internal general counsel in process of retention with CWG. Working procedures are designed to ensure that process is transparent. The firm has spent a lot of time working with the CWG thinking about structure of relationship. It understands that the intent is to provide independent legal advice. One of difficulties: neither CCWG nor CWG are incorporated, legal entities - ICANN will pay for the bill. The choice was 1) have every member of the CWG/CCWG become client which would imply going through onerous conflict check for each individual and get them to sign a contract; 2) Have a direction signed by ICANN (technical/nominal client) which stipulates that all directions are taken by CWG or CCWG and advice is directly provided to WGs only. It is very clear that intent is that we ought to be thinking of concerns that are being brought by the CWG or CCWG as we provide advice and not think about project from an ICANN perspective. Firm is comfortable that is the direction given and that retention letter is clear on that. They have worked through with internal general counsel to make sure it complies with ethical obligations. - Important to know our task is not only because the NTIA contract has a window of opportunity for opening - it is also because ICANN's accountability mechanisms are generally regarded as inadequate (irrespective of NTIA contract). - Timeline will most likely need to be adjusted since the community will not have reached sufficient consensus or exploration of issues on the timeline suggested now. - What is the firm's understanding of its duty of loyalty to ICANN, the corporation (as opposed to CWG)? --> Understand that duty of loyalty to ICANN is to fulfill direction it was given: provide independent advice to CWG and take directions from CWG only. ICANN has waived all privileges and made all directions direct. Will fulfill obligations to ICANN by carrying out what is in retention letter. - Do you see any other mechanism to achieve goal of transparency towards our own community? --> Make retention letter public. Response to legal scoping document should also be made public as well, subject to concerns. It may be that we ask some information to remain confidential if providing information about client. There are a lot of mechanisms for transparency through discussions, posting emails etc. We are open to suggestions. - As in CWG, we should have public archived mailing list for substantive engagement to make sure it is a transparent process to ICANN and global multistakeholder community. - How would you see us interacting with you? Are there any concerns with respect to requirements to track interactions with stakeholders? E.g. interaction from members of group that might approach you. Ideally the relationship would be between Legal Subteam and firm but some may approach you directly. Having a record may be desirable. --> Important for clarity, efficiency and transparency that it be clear who we are taking direction from. Comfortable with protocol that don't interact with individuals on one-on-one basis without being logged in. We can move faster if understand who is authorized to pose questions. Cannot be efficient if large number of people. - We could also log that into mailing list so that all can see interaction. We would have to limit to subject matter of CCWG. --> Communicate progress and guidance to larger group so that people understand how decisions are arrived at (iterative process) - this will help bolster confidence of larger stakeholder group in recommendations. - Would you be able to attend March meeting: how would you participate in working sessions with larger group? --> Will do best to work on conflits. Committed to working in whatever way CCWG considers useful. What is the timeframe? - León Sanchez walked Sidley through timeline - <https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline… modificationDate=1425369129000&api=v2> https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline… odificationDate=1425369129000&api=v2. Working towards having a draft out of Istanbul for public comment. Ultimate goal for WS1 would be to submit to Board by mid June for approval. --> This is an aggressive timeframe in terms of legal advice. Priority is to get it right while getting it done. Need to understand how you have identified three issues in the scoping document and what else you considered and took off the table and why. Your insight on potential pathways you considered would be useful to make sure we are giving a full view of what could be considering. Diligence would need to be done soon through a call with Legal Subteam. A lot of it is contingent on items that not in lawyer's control. - May need to adjust timeline when time comes. --> What sort of presentation is the CCWG contemplating during F2F meeting: is the need for discussion of pros/cons of various specific proposals that have already been floated? Might be doable if already in legal scoping vs. full out legal analysis submitted particularly if want to suggest one system is more effective than the the other. This would be a more robust undertaking that could not accomplished before Istanbul. - First need to decide whether engage with law firm and then advise. Supposing we are engaging with Sidley, should begin by answering legal scoping questions and combine how different answers to questions may fit into work done by WPs. Need to have a broader look at different mechanisms so far designed by WPs and see how they are legally feasible and play along with answers to scoping document. This would be the expectation for Istanbul. --> Experience with California Law not-for-profits: large not for profit practice, we have expertise of that group behind us should need it. --> Work for not for profits on general matters but also have been advising on governance, directors, bylaws issues - recent research has been done on these. Large practice behind us. Substantial knowledge of trust structures. --> Experience with California not for profits on governance issues. Worked with large, federated, international organizations many of which have complex relationships that need to be considered where accountability system needs to be built that show interest are heard and have effect in organization. Project helping on external communities finding consensus including governance reforms. Commonalities in issues. - Is it advisable to get same firm for CWG and CCWG? Would there be any cons to representing both groups? --> Both groups are working towards common end and have very similar interests. There is a fair degree of crossover on some of the issues. No conflicts seen. We have deep bench on not for profit side, on corporate side, on governance side and would be committed to putting any resources may have. - Some of our proposals concern restructuring ICANN into a membership or delegate based organization. Do you have any experience in this type of restructuring? --> Worked with membership organizations and helping restructure governance into membership organizations with complex structure that helped to restructure but no experience with making a non-member organization into a membership organization. Not for profit folks we can come up with examples. Comfortable with advising around it. Don't think this would pose any difficulties. - We have had experience converting cooperative organizations into more traditional full profit entities. Governance and membership organization could be a possibility we could deploy here. Further discussion needed on utility of this. There may be conflicting priorities that arise of membership organization we would need to think about. - Very significant advantages and minor disadvantages we can control for. Advantage are learning curve, natural coordination and convergence of work going on between 2 groups. Accountability has a longer lifespan part of accountability work will dovetail with stewardship group but bigger field of play. Disadvantages are conflicting timeline, overlapping responsibilities and against trend. - How is workload balanced in the firm between partners and associates doing the work in this matter? --> Unusual project. It will take start up time to determine right balance. Commitment to be as efficient as possible. Many of issues are not simple or straightforward and it will require partner time. Process in place whereby on call to be informed on non-billing basis. - How would you describe knowledge of ICANN and how would you get better understanding? --> Quick-learner have people with real expertise in area. --> Worked on internet law issues. ICANN has featured prominently. Dealt with domain name dispute, country level, complicated jurisdictional issues over root zone services. Practice involves dealing with world's largest technology, software companies. Former General Counsel for Department of Commerce has just joined us and has clear knowledge of NTIA perspective on contract with ICANN, political state of play, legal side of operations and importance of IANA functions. Realistic founded knowledge of ICANN and Internet. We have associate who lectured on cyber at Harvard. --> Knowledge going back to inception and prior to that. Chaired subcommittee that has oversight and jurisdiction for NTIA. In 2009, IANA contract was awarded to ICANN and subcommittee conducted a whole set of hearings. At the time, a lot of developing countries were urging ITU to get a role. Passed a resolution that received rare unanimous consensus that internet remain under governance of multistakeholder process and ITU not be involved. Long acquaintance of ICANN understand functions very well as well a counter forces at play. Can help advising on that to optimize opportunity for Congress to accept. --> Worked in communications law migrated from broadcasting to telecommunications to representations of ISPs. As general counsel, established the internet policy task force which combined NTIA with other agency that dealt with digital economy and multistakeholder model policy-making. As general counsel, had legal team provide services to NTIA. Knowledge also includes renewal of IANA functions contract to issues surrounding top level domain names, broader issues of internet governance etc. Wrote paper about defending transition aware of post policy issues of importance to an effective transition. --> More clarity is needed on timeframe for making decision. Ability to work effectively depends on time between decision and Istanbul. - Debrief call will be organized with legal sub team. Will get more clarity on timeline by the end of this week. ACTION ITEM: Provide more clarity on timeline as soon as possible. - If there is a decision, staff could complete engagement letter fairly quickly using similar language to CWG letter. --> Simple if same approach. --> Agreement needed between CWG and CCWG that comfortable with process. --> We would need CWG consent. - Doubt CWG would refuse but will verify. ACTION ITEM: Verify CWG would have no objection if CCWG deduces to engage with same firm. Next call: Friday, 13 March 00:00 UTC

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