- Accountability-Cross-Community

Fwd: [CWG-Stewardship] Sidley Austin LLP
by León Felipe Sánchez Ambía March 9, 2015

March 9, 2015

Dear all, This information from the CWG is also relevant for our group. While we haven’t engaged a law firm yet, I think it’s important we are all up to date with what’s happening in the CWG. Best regards, León > Inicio del mensaje reenviado: > > De: "Jonathan Robinson" <jrobinson(a)afilias.info> > Para: <cwg-stewardship(a)icann.org> > Fecha: 8 de marzo de 2015 15:46:11 GMT-6 > Asunto: [CWG-Stewardship] Sidley Austin LLP > Responder a: jrobinson(a)afilias.info > > Dear All, > > As of Friday 6 March, the CWG-Stewardship has engaged Sidley Austin LLP to advise and consult on the CWG’s development of a transition proposal. > > In the past two weeks, the Client Committee shortlisted three firms, interviewed each of them, and retained one. We chose to retain Sidley primarily because they envisaged the engagement as consultation rather than pure advice. In addition, Sidley presented a strong governance focus as well as specific experience with the U.S. political environment (including a former Congressman and a former Department of Commerce appointee). > > Sidley is aware of the CWG’s tight timeframe and accepts the requirement for highly transparent work methods. Also, the client relationship has been clearly defined and emphasized in the retention letter in that ICANN has instructed Sidley to take direction exclusively from and provide advice and consultation exclusively to the CWG, primarily through the CWG’s Client Committee. > > Sidley has no previous client relationship with ICANN. No conflicts were identified, however please note that Greg Shatan and Holly Gregory from Sidley worked at the same firm over a decade ago. > > The Client Committee will meet with Sidley Austin on Monday. This call will be recorded and transcribed and we will then provide an update to the CWG on Tuesday’s call, where we also plan to introduce the Sidley team to the CWG. > > Best wishes, > > > > Jonathan & Lise > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org <mailto:CWG-Stewardship@icann.org> > https://mm.icann.org/mailman/listinfo/cwg-stewardship <https://mm.icann.org/mailman/listinfo/cwg-stewardship>

1 0

Re: [CCWG-ACCT] [Notify] CCWG ACCT Stress Tests Working Group Meeting
by Dr Eberhard W Lisse March 9, 2015

March 9, 2015

Is that time what the Doodle poll came up with? I can't make it. el -- Sent from Dr Lisse's iPad mini > On Mar 6, 2015, at 17:43, Brenda Brewer <brenda.brewer(a)icann.org> wrote: > > <image001.gif> > Dear CCWG Accountability team, > > Cheryl Langdon-Orr and Steve DelBianco welcome interested participants to attend the Stress Tests meeting next week on 11 March. > > ST-WG meeting is scheduled for Wednesday, 11 March 2015 at 11:00-13:00 UTC. For international time zones see here. > > [...]

8 10

Additional Stress Tests to discuss
by Steve DelBianco March 8, 2015

March 8, 2015

For tomorrow’s call, we applied 4 more of our stress tests against the draft package of proposed accountability measures. Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the attached draft document. Stress Test: #1. Change authority for the IANA Root Zone ceases to function, in part or in whole. #2. Delegation authority for the IANA Root Zone ceases to function, in part or in whole. Consequence: interference with existing policy relating to IANA Root Zone and/or prejudice to the security and stability of one or several TLDs. Existing Accountability Measures: Under the present IANA contract, NTIA can revoke ICANN’s authority to perform IANA functions and re-assign to different entity/entities. After NTIA relinquishes the IANA contract, this measure will no longer be available. Proposed Accountability Measures: The CWG planning the IANA stewardship transition might design mechanisms and structures that enable separation, such that the IANA functions could be readily revoked and re-assigned. To manage the revocation of IANA functions, the CWG might also propose an emergency backup provider and procedures, pending re-assignment of the IANA functions. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. At this point, CWG’s recommendations are still in development. ——————————————————— Stress Test: #24. An incoming Chief Executive institutes a “strategic review” that arrives at a new, extended mission for ICANN. The Board, having just hired the new CEO, approves the new mission and strategy without community consensus. Consequence: Community ceases to see ICANN as the community’s own mechanism for discharging limited technical functions, and views ICANN as an independent, sui generis entity with its own agenda, not necessarily supported by the community. Ultimately, community questions why ICANN’s original functions should remain controlled by a body that has acquired a much broader and less widely supported mission. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to expand scope too broadly. The Community has some input in ICANN budgeting and Strat Plan, and could register objections to plans and spending on extending ICANN’s mission. California’s Attorney General has jurisdiction over non-profit entities acting outside Bylaws or Articles of Incorporation. Proposed Accountability Measures: One proposed measure is empowering the community to veto ICANN’s proposed annual budget. This measure could block a proposal by ICANN to increase its expenditure on extending its mission beyond what the community supported. If the ICANN board voted to approve the CEO’s plans, one proposed measure would give the community standing to veto a board decision. Another proposed measure is empowering the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures in combination are adequate. ——————————————————— Stress Test: #15. ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions. Consequence: affected parties could be prevented from seeking legal redress for commissions or omissions by ICANN. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to move in order to avoid legal jurisdiction. Paragraph 8 of the AoC requires ICANN to remain headquartered in the US, but the AoC can be terminated by ICANN at any time. As long as NTIA controls the IANA contract, ICANN feels pressure to maintain the AoC. Proposed Accountability Measures: One proposed measure is to give the community standing to veto a board decision. If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision. One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party. If ICANN’s board proposed to amend the AoC provisions added to the bylaws, another proposed measure would empower the community to veto that proposed bylaws change. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures improve upon existing measures, and may be adequate.

13 18

Notes-Recordings-Transcript links for CCWG ACCT WP2 Meeting #3 05 MARCH
by Brenda Brewer March 7, 2015

March 7, 2015

Hello all, The notes, recordings and transcripts for the WP2 Meeting #3 - 05 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52890944 Action Items * Staff: mailing lists for the 4 sub-working groups * Keith Drazek: will begin a cross-reference of the Mission/Values/Powers and the Articles * All groups/volunteers: drafting should be complete by 19 March * Becky Burr: to check leadership of the 4 sub-groups correct and agreed by the individuals concerned Notes WP2 call #3 - 5 February 2015 This call is being recording WP2 documents - <https://community.icann.org/display/acctcrosscomm/WP+2+Draft+Documents> https://community.icann.org/display/acctcrosscomm/WP+2+Draft+Documents Call for volunteers to join the work groups. Please email < <mailto:accountability-staff@icann.org> accountability-staff(a)icann.org> Anyone who has volunteered and not listed in the paper, please let staff know. There will be an email list for each of the following new sub-groups. . Community compact group: statement of completeness and questions by next weeks call . Ombudsman: task, enhancements to current ombudsman function . Request for reconsideration: Community view as an important improvement. . Independent review reconsideration: Items under the section "New Mechanisms", and new powers regarding the ICANN Ombudsman all moved to WP1. Jordan has been told who the volunteers for each were. Intention is for the descriptions of the enhancements and issues arising will be prepared so we can have a substantive discussion in Istanbul Drafting should be complete by 19 March so the whole group can prepare for Istanbul (travel) David Maher, lead: community compact group Ed Morris, lead, Ombudsman Becky Burr, lead, request for reconsideration Robin Gross, lead independent review reconsideration ICANN technical mission work stream has moved from WP1 to WP2. Keith Drazek will continue to lead Steve DelBianco: issues for stress test. 4 refer to what happens if ICANN tried to exceed its limited technical mandate. Responses are either proscriptive or restraining. Independent review will need to refer to a standard against which to decide if ICANN has exceeded its mandate. The review process may be the strongest mechanism CCWG creates. Will share the 4 relevant stress tests. Noted concern if the community could expand ICANN's mandate by consensus. Suggestion that certain aspects should be frozen in the bylaws, with great care to allow for evolution, but to cast core principles in stone. Mission statement. The list of commitments reflect the list found in ICANN's missions, bylaws, AoC and ideas suggested in CCWG. But the list should be finite enough to allow the organization to operate, but enough to make our expectations of organization clear. No attempt being made by WP2 to redefine ICANN mission and core values. But to capture the values in a more comprehensive way. So ICANN's behavior can be measured against it. Advisors, the articles of incorporation are limited in scope. The state requires ICANN to maintain these documents, believe they have not been changed to date. Some matters to do with the structure of the organizations, such as membership, might require a modification. Constraining the purpose of the organization in the articles of incorporation may worth looking at and protecting. Concern about possible limitation in the text about the consensus policies - ongoing for the group Action items Staff: mailing lists for the 4 sub-working groups Keith Drazek: will begin a cross-reference of the Mission/Values/Powers and the Articles All groups/volunteers: drafting should be complete by 19 March Becky Burr: to check leadership of the 4 sub-groups correct and agreed by the individuals concerned END Kind regards, Brenda

1 0

Notes-Action Items for CCWG Accountability LEGAL SubTeam Meeting 05 March
by Brenda Brewer March 7, 2015

March 7, 2015

Dear all, The Action Items and Notes for the CCWG Accountability LEGAL SubTeam call on 05 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52891283 Action Items ACTION ITEM: Include Robin in conversations with law firms. ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March. ACTION ITEM: Robin to refine document before call with law firm for discussion. Notes Update on selection process of Law Firm: - Several calls took place with shortlisted candidates. - 8 law firms at the beginning of process. - 3 shortlisted firms. Feedback: - These decisions should be made by legal team. Who decides which law firms get shortlisted? --> CCWG jumped in to catch up with CWG. ---> It is the CWG process - Leon liaised for the CCWG legal committee - process has been ongoing for few weeks. If CCWG likes firm the CWG hires, CCWG could use them. Could hire a different firm if not satisfactory but this would have impact on costs. //Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time// - Firm the CWG hires is not necessarily going to be the one the CCWG will hire. ACTION ITEM: Include Robin in conversations with law firms. ACTION ITEM: Provide time slots to Leon to hold call with law firm on Monday, 9 March. - While we have been discussing terms of engagement with candidate, we have not engaged candidate. There have been discussions on whether it is appropriate to handle both CWG and CCWG. Law firms were asked if saw conflict: none of the firms detected issue-based conflicts and confirmed they would have resources to support both projects. We did not presuppose CCWG work, did not share documents, but ensured availability of resources and that there is no CoI. //Recording was paused due to identification of firms that we do not yet have authority to release more broadly at this time// Review of legal scoping document Suggestions that this document should be shortened. Feedback: - We should not take section on concerns and proposals out of document. Context is needed. Pushback from community if we don't include their feedback. --> Let lawyers expand on initial proposal. --> Clarify that these are not the only items we would consider. - The document is not too long. Do not waste too much time on editing the document. It is straightforward. Put jurisdiction on hold. Immunity is contrary to accountability. - Leave all questions that have been proposed in the document - they reflect genuine concerns from the stakeholders. Jurisdiction is a real concern. There is a link between accountability and jurisdiction. We are debating mechanisms that would eventually be implemented under certain jurisdictions - we would need to think about alternatives. Respect the jurisdiction concern. --> This raises question of: is this WS1 or WS2? To date, it is considered WS2 due to the time this would require to implement and in light of declaration from Fadi at hearing. If WS1, this might derail the whole process. --> Lot of pressure on group - we need to ask the question of jurisdiction. --> It is important to get feedback on jurisdiction and to ask questions. Some of the answers will show that US California jurisdictions are very strong for accountability and rule of law and offer increasing amount of flexibility for different methods of accountability. But if available in other jurisdictions, it should be known. We may return to jurisdiction discussions in CWG as well. --> Discussion about jurisdictional concerns regarding review panels is certainly an issue. Suggestion that Advisors' guidance be sought. Conclusion: - Keep document structure as it is. - Nothing in the document as it is will be taken out. - Panel of experts could be extremely helpful and should be mentioned to law firms - it is a resource that could be used. - Lee Bygrave's guidance could be useful - his participation in Istanbul meeting is tentative. Proposed Goals Proposed goals: How can we protect ICANN from being prone to capture? How can we protect ICANN from antitrust law in US? Feedback - Antitrust review of potential mechanism would be desirable at some point in process. - Concerns about legal subteam coming up with new goals for the CCWG: it is not appropriate. --> We should address mechanisms to prevent the whole system to be prone to capture. Any change in jurisdiction might affect the whole organization and its stakeholders regarding effect of antitrust law. - Antitrust is not a goal but a byproduct. Capture is a concern across other communities. We are waiting to receive WP1, WP2, ST-PT conclusions. ACTION ITEM: Robin to refine document before call with law firm for discussion. END Kind regards, Brenda

6 6

Fwd: [CWG-Stewardship] Client Committee Update: Finalists
by León Felipe Sánchez Ambía March 6, 2015

March 6, 2015

Dear all, This information is also relevant to our group. Best regards Enviado desde mi iPhone Inicio del mensaje reenviado: > De: Greg Shatan <gregshatanipc(a)gmail.com> > Fecha: 6 de marzo de 2015, 1:52:02 PM CST > Para: "cwg-stewardship(a)icann.org" <cwg-stewardship(a)icann.org> > Asunto: [CWG-Stewardship] Client Committee Update: Finalists > > All, > > As promised, I have attached the introductory materials provided to the Client Committee by the three "finalist" law firms: > > Gibson Dunn > Latham & Watkins > Sidley Austin > Best regards, > > Greg Shatan > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship

1 0

Re: [CCWG-ACCT] Time slot proposal for CCWG call
by Robin Gross March 6, 2015

March 6, 2015

Ok, Leon. I will cancel my dentist appointment on Monday so I can accommodate your scheduling choices for this call. Best, Robin On Mar 6, 2015, at 12:43 PM, León Felipe Sánchez Ambía wrote: > Dear Robin, > > Monday was also an option from the beginning and most participants replied with their availability on Monday before providing availability for Tuesday. > > When you replied you were available only on Tuesday, I asked the rest of the participants to reply with their Tuesday availability so they replied. > > I then forwarded availability on Monday and Tuesday to Sidley and they came back with their availability. > > If you go through the different threads on this subject, you will be able to confirm what I'm saying here. > Mother idea is to have most of us in the call. I can go back again to Sidley and insist in verifying availability for Tuesday if the rest of the team is ok. > > Best regards, > > León > > Enviado desde mi iPhone > > El mar 6, 2015, a las 2:34 PM, Robin Gross <robin(a)ipjustice.org> escribió: > >> Thanks, Leon, but I'm still confused. All of our email responses gave available times on Tuesday. I know I'm already booked on Monday at this time, as indicated in my response. Why was Monday pitched to Sidley at all, given our responses were all providing our availability on Tuesday? Thanks. >> >> Best, >> Robin >> >> On Mar 6, 2015, at 12:29 PM, León Felipe Sánchez Ambía wrote: >> >>> Hi Robin, >>> >>> Please read the whole thread. I included Tuesday slots in my email to Sidley and they replied with their availability. >>> >>> Best regards, >>> >>> >>> >>> Enviado desde mi iPhone >>> >>> El mar 6, 2015, a las 2:04 PM, Robin Gross <robin(a)ipjustice.org> escribió: >>> >>>> Leon, >>>> >>>> Our email chain discussed available times on Tuesday. I'm confused that you have come back with a Monday time. Is Holly not available on Tuesday at the times we suggested? >>>> >>>> Thanks, >>>> Robin >>>> >>>> >>>> On Mar 6, 2015, at 12:01 PM, León Felipe Sánchez Ambía wrote: >>>> >>>>> Dear all, >>>>> >>>>> Further to my previous email, Sidler Austin would be available to hold a call on Monday from 2-3 pm eastern time. >>>>> >>>>> I hope most of us are available on that time slot. >>>>> >>>>> >>>>> Best regards, >>>>> >>>>> >>>>> León >>>>> >>>>>> Inicio del mensaje reenviado: >>>>>> >>>>>> De: "Gregory, Holly" <holly.gregory(a)sidley.com> >>>>>> Para: 'León Felipe Sánchez Ambía' <leonfelipe(a)sanchez.mx> >>>>>> Cc: "McNicholas, Edward R." <emcnicholas(a)sidley.com>, "Tam, Tennie H." <tennie.tam(a)sidley.com>, "Mohan, Vivek" <vivek.mohan(a)sidley.com> >>>>>> Asunto: RE: Time slot proposal for CCWG call >>>>>> Fecha: 6 de marzo de 2015 13:44:06 GMT-6 >>>>>> >>>>>> Hi Leon, We are available from 2 to 3 pm eastern on Monday, and are looking forward to speaking with you and the CWG members. Holly >>>>>> >>>>>> HOLLY GREGORY >>>>>> Partner >>>>>> >>>>>> Sidley Austin LLP >>>>>> +1.212.839.5853 >>>>>> holly.gregory(a)sidley.com >>>>>> -----Original Message----- >>>>>> From: León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx] >>>>>> Sent: Friday, March 06, 2015 2:30 PM >>>>>> To: Gregory, Holly >>>>>> Subject: Time slot proposal for CCWG call >>>>>> >>>>>> Dear Holly, >>>>>> >>>>>> I consulted with the group the possible time slots everyone would have available and they came up with these: >>>>>> >>>>>> Monday: Starting in the afternoon, anytime after. Please keep in mind that we have participants in Pacific, Central and Eastern time zones. >>>>>> >>>>>> Tuesday: 6-9 pm Eastern time. >>>>>> >>>>>> Please let me know what works for you and your team. >>>>>> >>>>>> >>>>>> Best regards, >>>>>> >>>>>> >>>>>> León >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> **************************************************************************************************** >>>>>> This e-mail is sent by a law firm and may contain information that is privileged or confidential. >>>>>> If you are not the intended recipient, please delete the e-mail and any attachments and notify us >>>>>> immediately. >>>>>> >>>>>> **************************************************************************************************** >>>>> >>>> >>

2 1

Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
by Carrie Devorah March 6, 2015

March 6, 2015

Phil ICANN "lost" its not for profit as I see it once it began quadrupling "profits." Also, at the Hearing, Fadi says ICANN is about policy. I have asked this before. I am asking again, how does auctioning of gTLD's fit in to this policy definition? Sincerely Carrie Devorah www.centerforcopyrightintegrity.com On Wed, Mar 4, 2015 at 6:25 PM, Tijani BEN JEMAA < tijani.benjemaa(a)fmai.org.tn> wrote: > Phil, > > > > I also was watching the senate hearing, and confirm that Fadi said that > ICANN would remain subject to US jurisdiction. I also confirm that this is > a very important point. > > It is important because the NTIA announcement of the stewardship > transition calmed very much people who were always complaining that it is > unfair that a single country control the Internet, a global network. Now > that we have this achievement, it would be a pity to loose it because we > want to put in our bylaws that ICANN will remain acting under the US > jurisdiction. > > > > I know and agree that the US jurisdiction is one of the best for the not > for profit corporation. I don’t say that we need to move ICANN to another > jurisdiction, but I think we don’t have to make it a condition. > > > > We need a stable and predictable legal environment, and we also need to > build trust and make people stop complaining. So being diplomatic in our > work is really necessary for a successful and sustainable transition. > > > > > -------------------------------------------------------------------------------- > > *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 > > > -------------------------------------------------------------------------------- > > > > > > > > > > > > *De :* accountability-cross-community-bounces(a)icann.org [mailto: > accountability-cross-community-bounces(a)icann.org] *De la part de* Phil > Corwin > *Envoyé :* mercredi 4 mars 2015 23:29 > *À :* Pedro Ivo Ferraz da Silva; 'Steve DelBianco'; Accountability Cross > Community > *Cc :* ACCT-Staff; ccwg-accountability4(a)icann.org > *Objet :* Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss > > > > Pedro: > > > > This is a very important point. I was in the room at the Senate Commerce > hearing last week, and also at another event at the US Chamber of Commerce > two days later. At both events Fadi stressed that ICANN would remain > subject to US “jurisdiction" post-transition, not just maintain its nominal > HQ in the US. As you correctly point out, there is a big “difference > between "headquarter location" and "legal presence/legal jurisdiction". > > > > Choice of legal jurisdiction is a very important point for multiple > reasons, among them: > > · Stable and predictable legal regime for contracted parties. As > all of ICANN’s authority vis-à-vis registries and registrars is based on > its contracts with them, reliable and predictable contract enforcement is > a key consideration. The US is generally regarded as having one of the best > legal systems in the world. > > · Design of both the IANA and ICANN accountability measures. Both > the CWG and the CCWG are going to engage independent legal counsel to > advise them on the design of accountability measures within the context of > California public benefits corporation law. If the legal context changes > those accountability measures may not fit properly within it; they may > become less effective or even unworkable. > > · Security concerns. As a US corporation, ICANN is forbidden by > OFAC regulations form engaging in any transactions with entities classified > as criminal or terrorist. This consideration is particularly potent for the > Administration and Congress. > > > > As to your point that “The community should be given the ability to > decide, in the future, which jurisdiction better serves the purpose of > ICANN acting in accordance to the global public interest.” , that is not > necessarily foreclosed, at some future date, depending on what mechanisms > are provided for Bylaws amendments. > > > > But for the immediate future those engaged in this transition exercise > should have some idea whether ICANN’s continued legal existence as a > non-profit California corporation is acceptable to other nations or whether > it will become the new “irritant” (as described by Secretary Strickling) > that replaces the IANA counterparty status as cause for complaint and basis > for calls for further alterations in its structure and status. > > > > This is central to the issue of whether the transition we are designing > will be stable for the foreseeable future or will just be a short-term > transitional stage from which new initiatives for change are launched not > long after the ink dries. > > > > Regards, > > Philip > > > > > > > > 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 > > > > Twitter: @VlawDC > > > > "Luck is the residue of design" -- Branch Rickey > > > > > > -----Original Message----- > From: accountability-cross-community-bounces(a)icann.org [mailto: > accountability-cross-community-bounces(a)icann.org] On Behalf Of Pedro Ivo > Ferraz da Silva > Sent: Wednesday, March 04, 2015 4:55 PM > To: 'Steve DelBianco'; Accountability Cross Community > Cc: ACCT-Staff; ccwg-accountability4(a)icann.org > Subject: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss > > > > Dear Steve, > > > > Thank you very much for the update on the Stress Tests. > > > > With respect to ST #15, it is very valuable, but I think we should be very > cautious about proposed measures. > > > > The following option makes sense and should be further debated: " If ICANN > board voted to vacate a legal presence, the community veto could enable > reversal of that decision". > > > > However, we anticipate objections to the alternative solution below: > > > > "One proposed measure is to import AoC provisions into the ICANN bylaws, > and dispense with the bilateral AoC with NTIA. Bylaws would be amended to > include AoC commitments 8, requiring it to maintain legal presence in the > US, where it is subject to legal redress by any aggrieved party." > > > > Paragraph 8 of the AoC requires US legal presence most probably due to the > present scenario where the US government (i.e.NTIA) is the steward of the > IANA functions. Once that link is no longer there, and especially because > that stewardship is being inherited by the global multistakeholder > community (stressing the word "global") a legal presence in the US (or in > any other specific country) should not be etched in stone. The community > should be given the ability to decide, in the future, which jurisdiction > better serves the purpose of ICANN acting in accordance to the global > public interest. > > > > During yesterday's call, some colleagues mentioned ICANN CEO's Testimony > in the American Senate last week. What he stated was literally: " Further, > ICANN has its global headquarters in the United States, and there are no > plans for that to change". Although such a decision/affirmation may be > debatable, it is important, once again, to stress the difference between > "headquarter location" and "legal presence/legal jurisdiction". Under e.g. > an international jurisdiction, an entity could potentially be headquartered > anywhere. > > > > Regards, > > > > Sec. Pedro Ivo Ferraz da Silva > > Division of Information Society > > Ministry of External Relations - brazil > > T: + 55 61 2030-6609 > > > > > > -----Mensagem original----- > > De: ccwg-accountability4-bounces(a)icann.org [ > mailto:ccwg-accountability4-bounces@icann.org > <ccwg-accountability4-bounces(a)icann.org>] Em nome de Steve DelBianco > Enviada em: segunda-feira, 2 de março de 2015 23:36 > > Para: Accountability Cross Community > > Cc: ACCT-Staff; ccwg-accountability4(a)icann.org > > Assunto: [ST-WP] [CCWG-ACCT] Additional Stress Tests to discuss > > > > For tomorrow’s call, we applied 4 more of our stress tests against the > draft package of proposed accountability measures. > > > > Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the > attached draft document. > > > > Stress Test: > > > > #1. Change authority for the IANA Root Zone ceases to > function, in part or in whole. > > #2. Delegation authority for the IANA Root Zone ceases to > function, in part or in whole. > > > > > > Consequence: interference with existing policy relating to > IANA Root Zone and/or prejudice to the security and stability of one or > several TLDs. > > > > > > Existing Accountability Measures: > > > > Under the present IANA contract, NTIA can revoke ICANN’s > authority to perform IANA functions and re-assign to different > entity/entities. > > > > After NTIA relinquishes the IANA contract, this measure > will no longer be available. > > > > > > Proposed Accountability Measures: > > > > The CWG planning the IANA stewardship transition might > design mechanisms and structures that enable separation, such that the IANA > functions could be readily revoked and re-assigned. > > > > To manage the revocation of IANA functions, the CWG might > also propose an emergency backup provider and procedures, pending > re-assignment of the IANA functions. > > > > > > Preliminary Conclusions: > > > > This threat is directly related to the transition of IANA > stewardship > > > > Existing measures would be inadequate after NTIA > terminates the IANA contract. > > > > At this point, CWG’s recommendations are still in > development. > > > > ——————————————————— > > > > Stress Test: > > > > #24. An incoming Chief Executive institutes a “strategic > review” that arrives at a new, extended mission for ICANN. The Board, > having just hired the new CEO, approves the new mission and strategy > without community consensus. > > > > > > Consequence: Community ceases to see ICANN as the > community’s own mechanism for discharging limited technical functions, and > views ICANN as an independent, sui generis entity with its own agenda, not > necessarily supported by the community. Ultimately, community questions why > ICANN’s original functions should remain controlled by a body that has > acquired a much broader and less widely supported mission. > > > > > > Existing Accountability Measures: > > > > As long as NTIA controls the IANA contract, ICANN could > risk losing IANA functions if it were to expand scope too broadly. > > > > The Community has some input in ICANN budgeting and Strat > Plan, and could register objections to plans and spending on extending > ICANN’s mission. > > > > California’s Attorney General has jurisdiction over > non-profit entities acting outside Bylaws or Articles of Incorporation. > > > > > > Proposed Accountability Measures: > > > > One proposed measure is empowering the community to veto > ICANN’s proposed annual budget. This measure could block a proposal by > ICANN to increase its expenditure on extending its mission beyond what the > community supported. > > > > If the ICANN board voted to approve the CEO’s plans, one > proposed measure would give the community standing to veto a board decision. > > > > Another proposed measure is empowering the community to > challenge a board decision, referring it to an Independent Review Panel > (IRP) with the power to issue a binding decision. [What would be the > standard used for this review?] > > > > > > Preliminary Conclusions: > > > > This threat is directly related to the transition of IANA > stewardship > > > > Existing measures would be inadequate after NTIA > terminates the IANA contract. > > > > Proposed measures in combination are adequate. > > > > ——————————————————— > > > > > > Stress Test: > > > > #15. ICANN terminates its legal presence in a nation where > Internet users or domain registrants are seeking legal remedies for ICANN’s > failure to enforce contracts, or other actions. > > > > Consequence: affected parties could be prevented from > seeking legal redress for commissions or omissions by ICANN. > > > > > > Existing Accountability Measures: > > > > As long as NTIA controls the IANA contract, ICANN could > risk losing IANA functions if it were to move in order to avoid legal > jurisdiction. > > > > Paragraph 8 of the AoC requires ICANN to remain > headquartered in the US, but the AoC can be terminated by ICANN at any > time. As long as NTIA controls the IANA contract, ICANN feels pressure to > maintain the AoC. > > > > > > Proposed Accountability Measures: > > > > One proposed measure is to give the community standing to > veto a board decision. If ICANN board voted to vacate a legal presence, > the community veto could enable reversal of that decision. > > > > One proposed measure is to import AoC provisions into the > ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would > be amended to include AoC commitments 8, requiring it to maintain legal > presence in the US, where it is subject to legal redress by any aggrieved > party. > > > > If ICANN’s board proposed to amend the AoC provisions > added to the bylaws, another proposed measure would empower the community > to veto that proposed bylaws change. > > > > > > Preliminary Conclusions: > > > > This threat is directly related to the transition of IANA > stewardship > > > > Existing measures would be inadequate after NTIA > terminates the IANA contract. > > > > Proposed measures improve upon existing measures, and may > be adequate. > > > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > ----- > > No virus found in this message. > > Checked by AVG - www.avg.com > > Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 > > > ------------------------------ > <http://www.avast.com/> > > Ce courrier électronique ne contient aucun virus ou logiciel malveillant > parce que la protection Antivirus avast! <http://www.avast.com/> est > active. > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > -- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow

1 0

Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
by Drazek, Keith March 6, 2015

March 6, 2015

Hi Tijani, In light of Fadi’s statement during his February 25 Senate testimony (as quoted by Phil Corwin in another email), there may be a risk to a successful and timely IANA Transition if the AoC’s US jurisdiction language is NOT incorporated into the bylaws. Fadi’s statement that ICANN “stands by” the requirements in the AoC (and the US jurisdiction requirement in particular) and that he believes incorporating the obligations into the bylaws is a good idea has set an expectation. If that expectation is not addressed and met by the community proposal, it will be very difficult for NTIA to explain to Congress why it was omitted. This could be used by some to try to derail the transition that we all want to happen. Also, it’s important to note that Fadi’s statement was part of his prepared remarks, not an off-hand comment. In those prepared remarks, he referenced the July 2014 letter that was sent to Steve Crocker by Senators Thune and Rubio where they called for the AoC obligations to be made permanent. As such, Fadi went out of his way to assure the Senators that ICANN would remain subject to US jurisdiction and that he expected the AoC obligations to be incorporated into the bylaws, as they had requested. I hope this additional context helps. Regards, Keith From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Wednesday, March 04, 2015 6:25 PM To: 'Phil Corwin'; 'Pedro Ivo Ferraz da Silva'; 'Steve DelBianco'; 'Accountability Cross Community' Cc: 'ACCT-Staff'; ccwg-accountability4(a)icann.org Subject: Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Phil, I also was watching the senate hearing, and confirm that Fadi said that ICANN would remain subject to US jurisdiction. I also confirm that this is a very important point. It is important because the NTIA announcement of the stewardship transition calmed very much people who were always complaining that it is unfair that a single country control the Internet, a global network. Now that we have this achievement, it would be a pity to loose it because we want to put in our bylaws that ICANN will remain acting under the US jurisdiction. I know and agree that the US jurisdiction is one of the best for the not for profit corporation. I don’t say that we need to move ICANN to another jurisdiction, but I think we don’t have to make it a condition. We need a stable and predictable legal environment, and we also need to build trust and make people stop complaining. So being diplomatic in our work is really necessary for a successful and sustainable transition. -------------------------------------------------------------------------------- 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 -------------------------------------------------------------------------------- De : accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] De la part de Phil Corwin Envoyé : mercredi 4 mars 2015 23:29 À : Pedro Ivo Ferraz da Silva; 'Steve DelBianco'; Accountability Cross Community Cc : ACCT-Staff; ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org> Objet : Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Pedro: This is a very important point. I was in the room at the Senate Commerce hearing last week, and also at another event at the US Chamber of Commerce two days later. At both events Fadi stressed that ICANN would remain subject to US “jurisdiction" post-transition, not just maintain its nominal HQ in the US. As you correctly point out, there is a big “difference between "headquarter location" and "legal presence/legal jurisdiction". Choice of legal jurisdiction is a very important point for multiple reasons, among them: · Stable and predictable legal regime for contracted parties. As all of ICANN’s authority vis-à-vis registries and registrars is based on its contracts with them, reliable and predictable contract enforcement is a key consideration. The US is generally regarded as having one of the best legal systems in the world. · Design of both the IANA and ICANN accountability measures. Both the CWG and the CCWG are going to engage independent legal counsel to advise them on the design of accountability measures within the context of California public benefits corporation law. If the legal context changes those accountability measures may not fit properly within it; they may become less effective or even unworkable. · Security concerns. As a US corporation, ICANN is forbidden by OFAC regulations form engaging in any transactions with entities classified as criminal or terrorist. This consideration is particularly potent for the Administration and Congress. As to your point that “The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest.” , that is not necessarily foreclosed, at some future date, depending on what mechanisms are provided for Bylaws amendments. But for the immediate future those engaged in this transition exercise should have some idea whether ICANN’s continued legal existence as a non-profit California corporation is acceptable to other nations or whether it will become the new “irritant” (as described by Secretary Strickling) that replaces the IANA counterparty status as cause for complaint and basis for calls for further alterations in its structure and status. This is central to the issue of whether the transition we are designing will be stable for the foreseeable future or will just be a short-term transitional stage from which new initiatives for change are launched not long after the ink dries. Regards, Philip 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Pedro Ivo Ferraz da Silva Sent: Wednesday, March 04, 2015 4:55 PM To: 'Steve DelBianco'; Accountability Cross Community Cc: ACCT-Staff; ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org> Subject: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Dear Steve, Thank you very much for the update on the Stress Tests. With respect to ST #15, it is very valuable, but I think we should be very cautious about proposed measures. The following option makes sense and should be further debated: " If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision". However, we anticipate objections to the alternative solution below: "One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party." Paragraph 8 of the AoC requires US legal presence most probably due to the present scenario where the US government (i.e.NTIA) is the steward of the IANA functions. Once that link is no longer there, and especially because that stewardship is being inherited by the global multistakeholder community (stressing the word "global") a legal presence in the US (or in any other specific country) should not be etched in stone. The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest. During yesterday's call, some colleagues mentioned ICANN CEO's Testimony in the American Senate last week. What he stated was literally: " Further, ICANN has its global headquarters in the United States, and there are no plans for that to change". Although such a decision/affirmation may be debatable, it is important, once again, to stress the difference between "headquarter location" and "legal presence/legal jurisdiction". Under e.g. an international jurisdiction, an entity could potentially be headquartered anywhere. Regards, Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of External Relations - brazil T: + 55 61 2030-6609 -----Mensagem original----- De: ccwg-accountability4-bounces(a)icann.org<mailto:ccwg-accountability4-bounces@icann.org> [mailto:ccwg-accountability4-bounces@icann.org] Em nome de Steve DelBianco Enviada em: segunda-feira, 2 de março de 2015 23:36 Para: Accountability Cross Community Cc: ACCT-Staff; ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org> Assunto: [ST-WP] [CCWG-ACCT] Additional Stress Tests to discuss For tomorrow’s call, we applied 4 more of our stress tests against the draft package of proposed accountability measures. Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the attached draft document. Stress Test: #1. Change authority for the IANA Root Zone ceases to function, in part or in whole. #2. Delegation authority for the IANA Root Zone ceases to function, in part or in whole. Consequence: interference with existing policy relating to IANA Root Zone and/or prejudice to the security and stability of one or several TLDs. Existing Accountability Measures: Under the present IANA contract, NTIA can revoke ICANN’s authority to perform IANA functions and re-assign to different entity/entities. After NTIA relinquishes the IANA contract, this measure will no longer be available. Proposed Accountability Measures: The CWG planning the IANA stewardship transition might design mechanisms and structures that enable separation, such that the IANA functions could be readily revoked and re-assigned. To manage the revocation of IANA functions, the CWG might also propose an emergency backup provider and procedures, pending re-assignment of the IANA functions. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. At this point, CWG’s recommendations are still in development. ——————————————————— Stress Test: #24. An incoming Chief Executive institutes a “strategic review” that arrives at a new, extended mission for ICANN. The Board, having just hired the new CEO, approves the new mission and strategy without community consensus. Consequence: Community ceases to see ICANN as the community’s own mechanism for discharging limited technical functions, and views ICANN as an independent, sui generis entity with its own agenda, not necessarily supported by the community. Ultimately, community questions why ICANN’s original functions should remain controlled by a body that has acquired a much broader and less widely supported mission. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to expand scope too broadly. The Community has some input in ICANN budgeting and Strat Plan, and could register objections to plans and spending on extending ICANN’s mission. California’s Attorney General has jurisdiction over non-profit entities acting outside Bylaws or Articles of Incorporation. Proposed Accountability Measures: One proposed measure is empowering the community to veto ICANN’s proposed annual budget. This measure could block a proposal by ICANN to increase its expenditure on extending its mission beyond what the community supported. If the ICANN board voted to approve the CEO’s plans, one proposed measure would give the community standing to veto a board decision. Another proposed measure is empowering the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures in combination are adequate. ——————————————————— Stress Test: #15. ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions. Consequence: affected parties could be prevented from seeking legal redress for commissions or omissions by ICANN. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to move in order to avoid legal jurisdiction. Paragraph 8 of the AoC requires ICANN to remain headquartered in the US, but the AoC can be terminated by ICANN at any time. As long as NTIA controls the IANA contract, ICANN feels pressure to maintain the AoC. Proposed Accountability Measures: One proposed measure is to give the community standing to veto a board decision. If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision. One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party. If ICANN’s board proposed to amend the AoC provisions added to the bylaws, another proposed measure would empower the community to veto that proposed bylaws change. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures improve upon existing measures, and may be adequate. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 ________________________________ [http://static.avast.com/emails/avast-mail-stamp.png]<http://www.avast.com/> Ce courrier électronique ne contient aucun virus ou logiciel malveillant parce que la protection Antivirus avast!<http://www.avast.com/> est active.

4 5

looking for transcript / recording from yesterday's legal sub-team meeting
by Robin Gross March 6, 2015

March 6, 2015

Hi there, When may we have the transcript / recording available on the web from yesterday's legal sub-team meeting? Thanks! Robin

2 1