- Accountability-Cross-Community

Fundamental Bylaws memo
by Jordan Carter April 24, 2015

April 24, 2015

Hi all For those not on the call, the attached is to deal with a gap in the draft comment report. It has only come into existence in the past 24h as we realised the gap. Apols for the short notice, as explained by Mathieu. Jordan -- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan(a)internetnz.net.nz Skype: jordancarter *A better world through a better Internet *

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

April 24, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 2 Session 2 - 24 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+2 <https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+3> A copy of the notes and a summary of the session may be found below. Thanks, Best regards Brenda IN SUMMARY Recap of session 1 ACTION ITEM - Take on FAQs suggestion and publish the responses ACTION ITEM - Provide Sebastien with an answer on models Preserving ICANN commitments from the AoC ACTION ITEM - Change commit into shall ACTION ITEM - Justify decisions we are taking with regards to AoC. ACTION ITEM - Use brackets to highlight different options and move back to this later ACTION ITEM Defer to lawyers on principal office or HQ AGREEMENT - Change non-commercial to non-financial ACTION ITEM - Second read 8.b proposal (fundamental or not) AoC Reviews ACTION ITEM - Determine how we can insert diversity into text. Sébastien to provide draft text. AGREEMENT - This will be presented for public comment with note that diversity would need to be inserted into text. Bylaws changes suggested by stress tests AGREEMENT No objections - reading complete Next Steps ACTION ITEM - Defer recap to session 3 NOTES (Notes have not been reviewed by CCWG-CoChairs yet) These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Becky Burr - Josh Hoffeimer - Edward McNicholas on phone line only Recap of session 1 We went through items listed under WS2 and the list was confirmed by the group along with a suggestion to add transparency and diversity. We have discussed sections 1-5 of report and have confirmed what is in the report in terms of substance. An amendment to ICANN "remains" accountable was suggested by Robin. We are waiting for the suggested text to sent to group. Content of these sections was confirmed. There was a suggestion that we should reorganize report: it takes 25 pages before finding conclusions. Glossary will be added to the report. We need a good summary document to make it easier for community to read the documents. The questions assembled for the public comment period will be to the point, clear and easy to understand to make sure we have answers that are reflective of the recommendations. We further discussed weighing options. Variations will be presented to community for comment. Models boil down to designators and members. More discussion is needed on liability i.e. liability risk of being sued if incorporated under California law and jurisdiction. Membership model is the reference for our work - it is getting substantial traction in our group. Designators will be reference in comment period. - Bylaws model will be among the models up for consideration. ACTION ITEM - Take on FAQs suggestion and publish the responses ACTION ITEM - Provide Sebastien with an answer on models Preserving ICANN commitments from the AoC We have talked about incorporation of AoC into Bylaws as part of mission, core values conversation. The initiative to bring AoC reviews into Bylaws stems from ST #14 - without the IANA contract it presents opportunity for ICANN to walk away from AoC. WP1 determined which paragraphs would be appropriate to be migrated into Bylaws. We then turned to AoC reviews. We added comment that if successful - the document becomes unnecessary The next ATRT could be triggered by the next Bylaws. On paragraph 7 - ICANN "commits" is appropriate in Affirmation but not in Bylaws ACTION ITEM - Change commit into shall Mapping AoC into core values was covered yesterday. 8.b is ICANN's commitment to maintain not-for-profit under US jurisdiction. That is substantially covered by Bylaws article 18.1. Existing bylaw provision is being preserved and AoC brought into Bylaws to fill in gaps. We then need to turn to question of whether 18.1 article needs to be a fundamental Bylaw. Not-for-Profit is featured in articles of incorporation item 3. We should clarify whether veto does apply to articles of incorporation or possibly to give positive consent - Insertion of non-commercial financial impact: the is specified under general commitment and there is no added value. Searching for non commercial financial impact definition as concerns might be introducing something that might be ambiguous. With regards to #8, the articles of incorporation - unless made supermajority - can be changed as easily as Bylaws (not fundamental Bylaws). We need to justify why we are taking significant step. Articles of Incorporation are a statement of fact - bylaws are a statement about future. ACTION ITEM - Justify decisions we are taking with regards to AoC. - We need to make sure we don't get into wordsmithing. Non-commercial is something we need to be aware of. - Our reliance upon articles to capture not-for-profit assumes we have power to block changes to articles. If we cannot control change, we need to migrate non-commercial article into Bylaws --> Articles amendments currently require 2/3 approval by directors, and if there are members, 2/3 of the members - We don't need to refer to non-commercial otherwise commercial will be excluded from paragraph. "Will" perform is not acceptable, "Shall" is obligation. (or should) ACTION ITEM - Use brackets to highlight different options and move back to this later - AoC 4 (impact assessment) & 7 (general transparency requirements) include important concepts for transparency. It is proposed that they be inserted into Bylaws -ICANN is considered business club - it is opportunity for ICANN to show it has other impact than commercial. Suggestion to change "non commercial" to "non-financial" Non-commercial is wider than non-financial. AGREEMENT - Change non-commercial to non-financial - All AoC are promoting SSR, transparency, multistakeholder. Section c is about particular jurisdiction. If it was more general it would be fundamental. But since under particular jurisdiction don't see how this is fundamental. - Option between HQs and principles: HQs have more meaning than principles. Suggestion to seek HQs instead of having principles. Whether this paragraph would be fundamental and normal: if we put every thing from AoC into fundamental, could create sensitivies outside CCWG. - Fundamental difference between paragraphs from AoC and this one relating to HQs location. We have among the community conflicting views about it. Consider more carefully - This does not need to be fundamental bylaws. Even if imported AoC reviews, it is already in bylaws that statement is a strong arm that had nothing to do with reviews itself. Let's not make it stronger than it already is. - 1) principal office & HQs - deferred to lawyers ; 2) import 8.b. into bylaws and giving it fundamental or standard protection. ACTION ITEM Defer to lawyers on principal office or HQ - Surprised b not brought into bylaws as fundamental (multistakehoder etc) - 8b should be fundamental bylaw. this will be scrutinized. - Reference it as normal Bylaw - alternative would be fundamental Bylaw - Lawyers have focused on governance documents. Empower the community to have more control. Cautionnary flags that recommendation or outcome that fundamental decision whether decision to be moved out of US could be decision of vote (2/3) - that would not be consistent with drivers. Recognize that this decision is momentus and avoid perception that jurisdictional shift could be engineered by specific group RECAP: Confusion about what is being proposed. To be rediscussed. ACTION ITEM - Second read 8.b proposal (fundamental or not) AoC Reviews Community has requested that reviews should be imported into Bylaws. Text has been proposed. First reading indicated overall agreement of what would look like. 4 suggestions were made: 1) ability to sunset old review and create new ones; 2) community appoints its representatives; 3) access to internal documents; 4) timeframe; 5) Board shall consider approval and begin implementation. Requirements would apply to all reviews ATRT2 recommended that there be an annual report. There have been yearly periodic reviews about progress to be made in implementing changes. Objective is to integrate ATRT requirement into a Bylaw statement. - Diversity concerns: we need to find a way to have diversity in any new group created. --> Only diversity you can make is ask groups to consider diversity given that no prescribed methodology. ACTION ITEM - Determine how we can insert diversity into text. Sébastien to provide draft text. AGREEMENT - This will be presented for public comment with note that diversity would need to be inserted into text. Bylaws changes suggested by stress tests 6.8.1 is a reflection of ATRT recommendation: force Board to respond to Adivsory Committee formal advice. Require consultation and mutually acceptable solutionfor GAC advice that is backed by consensus. AGREEMENT No objections - reading complete Next Steps ACTION ITEM - Defer recap to session 3

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SLIGHTLY revised Fundamental Commitments and Core Values Chart
by Burr, Becky April 24, 2015

April 24, 2015

This chart slightly updates the April 17 Frozen Draft by reflecting WP1 work on AoC commitments. Changes (minor) are in PURPLE J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz

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Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 3 - 24 April
by Alice Jansen April 24, 2015

April 24, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 1 Session 1 - 24 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+1 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Alice ---- CCWG ACCT Day 2 Session 1 – 24 April 2015 IN SUMMARY Section 8 - Work stream 2 proposals ACTION ITEM - Avri to circulate language to list for discussion ACTION ITEM - Sebastien to provide language on diversity for discussion on list Discussions of sections 1-5 ACTION ITEM - Rapporteurs from work areas 1 and 2 to review language confirm it is accurate ACTION ITEM - Review how can adjust structure to get reader quicker to core of matter ACTION ITEM - Insert a glossary placeholder ACTION ITEM - Check whether this is Charter language ACTION ITEM - Robin to send proposed edits to list for discussion ACTION ITEM: Jordan to circulate this language on list for discussion AGREEMENT - Stable text that we can provide in advance to translation Questions for public comment report (to be provided by CoChairs) AGREEMENT: Cochairs and Rapporteurs to adjust sections to incorporate questions after intensive days so that last version incorporates questions for you to assess ACTION ITEM - Set up point of contact for clarifying questions as part of public comment process Community Mechanisms ACTION ITEM: - Reach out to SSAC RSSAC on weight options AGREEMENT - Membership model to be considered a reference for our work. We will be signaling it has more traction but will also leave reference to designators in model for community to have all context in public comment period ACTION ITEM:- Clarify that legal assessment is solely based on California law SESSION CONCLUSIONS - We have two discussion points for WS2 proposal that will be taken onboard for session 2 - Jordan, Robin, Avri and Sebastien to circulate language to list for discussion - Significant progress was made on community mechanisms. - It is clear that member option is fitting key requirements best but uncertainty whether stakeholders at large will accept this model. we will need to provide legal advice to inform community but will need to be practical NOTES (Notes have not been reviewed by CCWG-CoChairs yet) These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Josh Hoffeimer - Tijani Benjemaa - Barrack Otieno and Alice Munyua not on Adobe Connect at this time Recap of Day 1 Revised mission core values and notion of Fundamental Bylaws are approved . We have conducted a first review on IRP enhancement - a second reading will be made today. We obtained approval of request for reconsideration. Community mechanisms, recall of Board, recall of individual Board members, reject budget/strategic plan, reject changes to ICANN Bylaws to be rediscussed. Section 8 - Work stream 2 proposals Current list available in the draft report includes: • Enhancements to ICANN's accountability based on law applicable to its action - • - Enhancements to Ombudsman role & function • - Limiting ICANN's ability to deny transparency/disclosure requests • - Improvements to ICANN's budgeting and planning process that guarantee the ability for the community to have input, and for input to be given due cosnideration • - Define security audits and certification requirements for ICANN's IT system Feedback - Consider alternative options for jurisdiction - DIDP (as a follow up to day 1: review of DIDIP recommended as it relates to IRP and reconsideration request. Suggestion for DIDP to be a broader review. --> This would be captured in "Limiting ICANN's ability to deny transparency/disclosure requests" - What kind of timeframe are we expecting? At what point will we get to these? Will we be waiting for implementation? --> WS1 we are working on items that need to be prior to translation. It will include adoption and implementation phase. We will have freed up time for group to dive into WS2. - They should be a review process put into this. We will be recommending substantial restructuring. We need to have checks and balance and this concept should be captured. --> Envisages Team exercising implementation oversight and if any issue is spotted, we can reconvene and work on that. - We are putting all transparency off yet again. There is a problem with how much stuff ends up needing DIDP. You have to work to get things visible. It is a broader issue than just improving DIDP. Transparency philosophy of ICANN (methodology) should be an issue that is noted separately. Suggested language: Institute a culture of default transparency at ICANN, including guidelines for when it is acceptable to classify information, requirements for logging decisions to classify information and procedure for de-classifying information.not sure classify is the right term, but it all that occurs to me at this point. ACTION ITEM - Avri to circulate language to list for discussion - What could be the link between WS2 and ATRT3? Consider diversity: how do we enhance diversity across ICANN's organization? --> We have recommendation that relates to ATRT review - connection is made between our work and future reviews. ACTION ITEM - Sebastien to provide language on diversity for discussion on list Discussion of Sections 1 -> 5 Sections present work we are doing: introduction & background, methodology, summary of problem statement & definition, Accountability of existing accountability mechanisms, input gathered by community (short summary of work area 2 of input). Work area 1 and work area 2 outputs will be put into appendices. ACTION ITEM - Rapporteurs from work areas 1 and 2 to review language confirm it is accurate - Let's not spend too much on this. - 20 pages to get to substance might be too heavy - Assess whether could change order of sections ACTION ITEM - Review how can adjust structure to get reader quicker to core of matter - Suggestion to leave as it is and to include a complete management abstract for community - We need to write report for readers - Decision hard to make in absence of executive summary. Need to find recommendations quickly - have meat closer to the front - Suggestion to have a placeholder for a glossary at end of report ACTION ITEM - Insert a glossary placeholder - Edits on introduction and Background: "remains" ACTION ITEM - Check whether this is Charter language ACTION ITEM - Robin to send proposed edits to list for discussion - Avoid language that there is no accountability at ICANN - Combine while there is a certain degree of accountability with enhancing - Corporate reaches level of accountability that is satisfactory to community is absence of contract would be a good way to frame it. - We are enhancing current accountability but also creating a new one and that needs to be clarified. --> Introducing mechanism would enhance mechanism - Language suggesed by Jordan "From this dialogue, the Enhancing ICANN accountability process was developed so ICANN can realise a level of accountability to the global multistakeholder community that is satisfactory inthe abence of its historical contractual relationship with the U.S Government. This contractual relationship has been perceived as a backstop with regard to ICANN's organisation-wide accountability since 1998." ACTION ITEM: Jordan to circulate this language on list for discussion AGREEMENT - Stable text that we can provide in advance to translation Questions for public comment report (to be provided by CoChairs) In Istanbul: we agreed we would be seeking confirmation as much as possible on our proposals and try to have questions that are focused on getting feedback. Questions would be standard about whether community agrees with the recommendation, agrees with list of requirements and ask how the community would recommend amending requirements. Asking for guidance on preferred options from community, stressing need to understand rational for prefering issues so that can use feedback. This section of the session is for us to get feedback on how to organize fitting questions into the report. It is a good way to open discussion on this. - We need to talk about status of report i.e. clarifyr on consensus. There are cases for which there are alternatives/options - community should pronounce in favor or against and could provide alternatives. How would we prepare these questions? It should be consistent with Charter. - In order to have proper evaluation, we need proper questions. - Asking clear-cut questions on specific parts of report. will enable us to have answers that focus on specific recommendations. AGREEMENT: Cochairs and Rapporteurs to adjust sections to incorporate questions after intensive days so that last version incorporates questions for you to assess - When you raise questions to public, we specify focal points in a way that people who need clarification can seek these clarifications. Suggestion to have Rapporteurs, Cochairs to work on focal point and to have dedicated source available for the community. ACTION ITEM - Set up point of contact for clarifying questions as part of public comment process Quick turnaround will be needed. - FAQs could also be useful. Community Mechanisms Seeking further comments on whether want to go with option 1 or option 2 - composition of community representation: Two options : 1) 5 to 2 .; 2) 4 to 2 - for public comment i.e. 1) ASO, ccNSO, GNSO ALAC GAC 5 votes. RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, : 4 votes. At-Large, GAC SSAC, RSSAC - 2 votes Feedback: - Need a degree of flexibility - Bridge gap between 4 GNSO, 1 for Nominating Committee appointees - GNSO could have 5 match to its own structure easily. There is traction for 5. Should we have 5 vs. 2 or should we have 3 SOs vs lower number of votes. The suggestion to give both ALAC and GAC only 2. - We should not have long discussion. We have explained logic of the choices. The difference between is whether ALAC and GAC should have opportunity for same representation as 3 SOs. Support option 1. - There is more traction for what we call option 1. Recollection that more traction for options for SOs - ALAC - GAC to have equal footing with less for SSAC and RSSAC. - ALAC wont approve report that goes with option 2. There are 5 regions. Rational for 4 is that 4 SGs and that disenfranchized some of appointees. - Let's retain both options. - The 2 options presented might not be the best 2. There was suggestions for equal footing yesterday. - Establish whether there is sufficient traction for alternatives. Option 1 gets central traction. Could narrow it down to 1 if clear preference. We could highlight preference and provide different options as needed. - CCWG discussed two options. During discussions some dregree of preference was expressed for option 1. There might be other options coming from community. We cannot eliminate options at this stage. - There is no real specialized expertise needed for level. If go with option and not talk about others, it is superficial. We need legal experts Better to present multiple options as long as clarify which option got traction and why. - We need to have clarity on various options on table. - Option 1 - call is the "central option" we are considering. This got a little more traction. We used it to test thresholds but not closing door for other options. - We have no one from SSAC/RSSAC - have we reached out to them? SSAC is not chartering organization because they do not have bandwidth but has strong interest in it. Need to pass this by them. ACTION ITEM – Reach out to SSAC RSSAC on weight options "Central option" not acceptable. RECAP: We will not be ruling out further options but for reference of work will flag the central option. This will give the community the chance to have altenatives to evaluate. IRP and approving budget/strategy plans would be viable through different means. Set of questions has been posed to lawyers. On Unicorporated associations, one of most important answers on set of questions would be ability to sue and be sued and obligation of paying for legal costs. - What of liability? --> They could still be sued today and in future. Bylaws should have plain and clear statements. - If challenging ICANN decisions, how can you ensure ICANN support if your are being sued? - 2 facets: 1) give community assurance that covered by ICANN; 2) what is the likelyhood of being sued? Need to convey that there are risks already that we are clarifying in Bylaws - What do we want out of this discussion? --> Have in report that we have traction for either models: designator or member - Aim is to have sense of signaling that we do have more traction for one of the models. - Membership model could achieve objectives - designators model even if supplemented by contract could not work - Likelyhood of being used: unincorporated associations not having assets and not easy to find and attach to lawsuit, will make it less likely to being sued. Certain degree of risk today - as individual covered by ICANN. It does not increase individual liability. - Designators vs. membership may well address some issues. We seem to undestand designator solution may not give us all options/powers we need. Community has to be made aware of issues that were raised. - People can act as partnership - partnership does not present itself as entity. Individuals are still liable. - Membership and designators cant be on equal footing - can't be opaque. Support membership. We are developing preference. We have to reference designators model but should clarify preference. - Unclear whether incorporation should be done under California law alone. --> Delaware would be default because of its flexibility. California gets you to unincorporated associations and you can rely on what exists in chartering but these are details that can be worked on once we have clarification on mechanism. --> California has good framework for unincorporated association - Have questions that have come up about membership model been addressed? --> Paramount importance is to be able to exhert as much control as possible over Board. The member model is by far the stronger model. What sort of power should have community over budget/strategic plan? The decision rests on how much power you want to reserve to community. Downsides on legal and geopolitical sides: members do have greater statutory rights and we would have to look at how organize bylaws. We would want to take steps to preserve flexibility. Members have rights that need to recognized. Designators powers are limited. --> We often base decisions on whether should be membership or designator based - California is one of strongest states in members' rights. - What if we decide membership is a mistake - can we switch to another model? --> California code provides for 45 days notice. If orgaznization wants to convert to designator structure, we would have to get members' consent to give up statutory rights. AGREEMENT - Membership model to be considered a reference for our work. We will be signaling it has more traction but will also leave reference to designators in model for community to have all context in public comment period. - Legal analysis may be different in other states and jurisdictions. Clarify that legal assessment is solely based on California law. ACTION ITEM - Clarify that legal assessment is solely based on California law Next Steps - We have two discussion points for WS2 proposal that will be taken onboard for session 2 - Jordan, Robin, Avri and Sebastien to circulate language to list for discussion - Significant progress was made on community mechanisms. - It is clear that member option is fitting key requirements best but uncertainty whether stakeholders at large will accept this model. we will need to provide legal advice to inform community but will need to be practical

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Question of incorporation jurisdiction of members outside USA
by James Gannon April 24, 2015

April 24, 2015

Hi All, Just a quick reminder that there was a discussion a moment ago on the CCWG call about the possibility of incorporating (Or un-incorporated associations) the member organisations in a jurisdiction other than the US. There seemed to be rough support for asking counsel to have a look at that but we said that we would bring it to the list first before asking it to be brought to the client committee. -James Gannon

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Re: [CCWG-ACCT] [Acct-Legal] Accountability questions to law firms
by Dr Eberhard W Lisse April 24, 2015

April 24, 2015

Dear Co-Chairs, why is every question, no matter how trivial, assigned, but the fundamental one(s), namely whether the USG in fact has any claim to the root and how this would affect the Transition, if any, and (indvidual) ccTLD Managers (in chronological batches), is not? It's not only a rhetorical question. Though, I have an idea, which I had voiced before the start of the actual work of the CCWG to some colleagues, due to past experiences. Please have a response ready in time so I can include it into my minority viewpoints that you will have to attach the the Request for Comments. greetings, el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Fwd: [Acct-Legal] Sidley/Adle Memo re Unincorporated Associations
by León Felipe Sánchez Ambía April 24, 2015

April 24, 2015

Dear all, Please attached find the answers by counsel to the FAQs regarding unincorporated associations. I think they come right in time for our discussions. It’s a 3 pages long document that summarizes different points on administrative issues, liability, funding, etc. Best regards, León > Inicio del mensaje reenviado: > > Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > Fecha: 24 de abril de 2015 3:37:37 GMT-5 > Cc: Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, ICANN-Adler <ICANN(a)adlercolvin.com> > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] Sidley/Adle Memo re Unincorporated Associations > Responder a: ccwg-accountability5(a)icann.org > > Dear Legal Sub-Team, > > Please find attached a memorandum providing answers to a series of questions directed to counsel regarding Unincorporated Associations. > > Cheers, > Josh > > JOSHUA HOFHEIMER > Sidley Austin LLP > +1.213.896.6061 (LA direct) > +1.650.565.7561 (PA direct) > +1.323.708.2405 (cell) > jhofheimer(a)sidley.com <mailto:jhofheimer@sidley.com> > www.sidley.com <http://www.sidley.com/> > <http://www.sidley.com/> SIDLEY AUSTIN LLP > > > > > **************************************************************************************************** > 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. > > **************************************************************************************************** > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org <mailto:Ccwg-accountability5@icann.org> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 <https://mm.icann.org/mailman/listinfo/ccwg-accountability5>

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Agenda - 24 April
by Alice Jansen April 24, 2015

April 24, 2015

Dear all, This is to inform you that agendas for your 24 April sessions were refined based on day 1 discussion: open slots were populated with items. Please refer to the attached or to the text pasted below. Updates are highlighted in yellow in the below. Thanks! Best regards Alice DAY 2: Friday, 24 April Session 1<https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+1> - 08:00 - 10:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+&iso=201…>) 1. Recap of day 1 (5') 2. Section 8 - Work stream 2 proposals (20') 3. Discussion of Sections 1 -> 5 (15') 4. Questions for public comment report (to be provided by CoChairs) (15') 5. Community Mechanisms (60') 6. Next Steps (5') Session 2<https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+2> - 13:00 - 14:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+&iso=201…>) 1. Recap of session 1 (5') 2. Section 6.7.1 - Preserving ICANN commitments from the AoC (20') 3. Section 6.7.2 - AoC Reviews - 2nd reading (15') 4. Section 6.8 - Bylaws changes suggested by stress tests - 2nd reading (15') 5. Next Steps (5') Session 3<https://community.icann.org/display/acctcrosscomm/Day+2+-+Session+3> - 16:00 - 19:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+&iso=201…>) 1. Recap of session 2 (5') 2. Outstanding stress tests - Stress tests where the contingency does not appear to be fully mitigated (20') a. Including stress test 21: Government official demands rescind of a ccTLD 3. Second reading of outstanding issues for public comment report (120') 4. Next Steps - Work Plan (30')

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Notes-Recordings-Transcript links for LEGAL SubTeam Meeting #13 - 23 April
by Brenda Brewer April 24, 2015

April 24, 2015

Dear all, The notes, recordings and transcripts for the Accountability LEGAL SubTeam Meeting #13 - 23 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52897284 A copy of the notes from the session may be found below. Thanks, Best regards Brenda Action Items: none Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Leon: Will work through the questions with the legal advisors. Voting threshold and super majorities. Can open the door to a tyranny of the masses. Where a small group can block and issues. Supermajority typically 66%. Get to 75% and can open the way to some blocking. Might reach that level for constitutional (type) decisions, but do run a risk. Need to do math to see what the risks might be. And might be in the Articles rather than the bylaws. Need to figure that out. Care with abstentions. If too many abstain then the decision can be made by a very small group If there is concern about a group like the GAC then they might continue as now without voting rights. If GAC. for example, made as a member of the organization there is some risk that someone may come to dominate the GAC and therefore capture the process. Q. Caretaker board in the event of removal of the whole board. Can a caretaker board be implemented and how implemented. Need a simultaneous mechanism to put a board in place, There are ways to hold a board on place, but they are likely to quit. Can put people in as placeholders, knowing you will run a selection process later. This caretaker board has all the powers of the board, they are caretaker in name only. Removal of a whole board is unusual, and need to think about how under CA law and other jurisdictions, needs research and not an immediate response. Good news is CA law allows flexibility in how to address this. Can it be installed so it allow an uninterrupted operation of ICANN? Some certainty would be helpful when proposing this community power. Q. Can the SO/AC form unincorporated associations, while maintaining their current status in ICANN? A. Yes. And already much of what's needed is in the bylaws. All advice suggests is needed is a simple article of incorporation that write in the sections from the ICANN bylaws, and they claim status associated. And the SO/AC can continue as they had before. And as a member they could then exercise certain legal rights. They wouldn't have assets and no actives per se. The activities would still occur in the ICANN corporation, and these parallel structures would hold the contract rights, etc. Q. Are there any liabilities associated with unincorporated association over and above what we have now. Individual members would not be liable (legal advice currently considers), they would be members of the association. The designators and member organizations are taking specific actions, the members are not. Legal advice is that the liability issue is not a concern. Q. Currently the Board controls many of the features of the various SOAc and of their subcomponents. Would that still be the case as unincorporated associations can rely on ICANN board governance It depends on ICANN board governance. And thinking through how the new parallel structure might look like. Current arrangements may not change Q. Can the SO/AC be dissolved? It will be protected by the new powers, and it can still dissolve itself. Can have provisions on the bylaws about the membership that the board couldn't change, but the members could. There are some easy to fix concerns. International concerns and unincorporated associations. SO/AC, to want them not to be unincorporated does leave them open to liability as you enhance community powers. And the use of unincorporated associations does give additional protections. The bylaws drafted in a way, to provide that ICANN would be indemnifying the organizations, or the individuals acting for the organizations. Working to ensure there would be no greater liability than community has today Q. If SO/AC remove their directors, then NomCom would remove theirs, and this goes to the issue of the NomCom's independence. Pre-appointment letter would probably work for NomCom. Community vote: the vote is through the designators or members. Comment: The NonCom doesn¹t need to become an unincorporated association to create and unincorporated association. This would be an alter-ego for the NomCom. Deliverables. Questions as presented during the call. 1, 3, and 4 addressed. Q 2, counsel need more time to look into, but short answer is the caretaker board can be implemented. And the rest of the questions will be addressed. Short answers for each. END

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Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 3 - 23 April
by Alice Jansen April 24, 2015

April 24, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 1 Session 1 - 23 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+3 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Alice ---- IN SUMMARY Recap of session 2 ACTION ITEM - Read legal counsel's executive summary of membership/designator models Revised Mission, Commitments & Core values ACTION ITEM - Insert suggestion regarding numbering resources in mission language AGREEMENT - The following proposal is to be plugged into the public comment: setting policy through a bottom-up, consensus–based multistakeholder process Fundamental Commitments & Core Values ACTION ITEM - Becky to remove "commits" and identify new terminology ACTION ITEM - State why 8.b is not in the document and whether it is fundamental Fundamental Bylaws ACTION ITEM - Add a memo to address request regarding numbering resources ACTION ITEM - Clarify that do not intend to change the current process ACTION ITEM - Reflect numbering policy-related document in edits ACTION ITEM - Rediscuss whether 18.1 should be listed as fundamental Bylaw AGREEMENT - Fundamental Bylaws will be integrated into public comment period Independent Review Panel Enhancements AGREEMENT - any outcomes from IRP would not be appealable under the proper IRP process but there would always be opportunity to challenge this decision in court of law AGREEMENT - Remove question 2 ACTION ITEM - Submit final wording to legal counsel to ensure it is appropriate ACTION ITEM - Replace "internal" with independent review panel ACTION ITEM - Clarify independence requirements Reconsideration Process Enhancements AGREEMENT - DIDP to be dealt with within WS2 AGREEMENT - The document can be used as is basis - DIDP is deferred to WS2. Welcome additional questions from WP2. Encourage community to look at items that are encapsulated in template SESSION CONCLUSIONS We have reviewed WP2. On mission and core values: fine-tuning is needed. We have open questions on how we address 18.1 and whether we want this as fundamental bylaw. Legal implications needed. We are close to final agrement on fundamental Bylaws. We have received a confirmation on legal feasibility on IRP and we have outlined key aspects of architecture for public comment. Lot of work is needed on details but we are on the right track for the public comment process. This also applies to the reconsideration process. We will resume some of open questions tomorrow and will come out with significant progress to report to the community. ---------- NOTES (Notes have not been reviewed by CCWG-CoChairs yet) These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Michael Clark, Leon Sanchez not in the Adobe Connect Room Recap of session 2 We have not yet turned around the updated version of the document we worked on. It is due to issues encountered with notes. It will be sent shortly. Please read executive summary on membership/designator - community mechanisms executive summary legal counsel produced. With respect to Board recall: NomCom proposal and threshold will be discussed tomorrow. It was a useful discussion which shows we have ways to move forward ACTION ITEM - Read legal counsel's executive summary of membership/designator models Revised Mission, Commitments & Core values Substantive discussions were held in Istanbul and during meeting #20. An easy-to-use document was assembled to highlight changes from existing Bylaws and plug in AoC language. Text has been annotated to describe sources. A revised version including minor edits (in purple) or core values and commitments was circulated to circulate WP1 work on AoC. It corresponds to language that is in frozen draft (on p. 44). Feedback - References to consensus policy and specification 1 - pointer to section of a contract does not belong in Bylaws. Why are we restricting to consensus policy? --> This language is not intended to be final Bylaws language - agree that final language would not necessarily refer to specification 1. - Our mission is to develop policy based on consensus. Policy mission is used in contracts and bylaws i.e. picket fence: eligible to be changed immediately after approval of implementation of policy that changes contracts that are already enforced. They don't necessarily have effect of changing contract already in force. for instance, new gTLD. We need to discuss: 1) raison d'etre i.e. develop policy; 2) Enforceability i.e. A policy that converges consensus policy would be binding for contracting parties. A pragmatic way forward would be to use language referring to policy without specifying consensus policies. - Unless otherwise specified in Bylaws etc, we should go by consensus. - Policy issued by SOs should carry consensus. - Consensus policy has a defined contractual term: policies main only relate to gNSO space. There are also policies that relate to CCs and numbering. Let's not confuse that. - Ok to say mission is to develop community by consensus. There are a lot of policies that will not alter contract when setting them. - Would bottom up, community-based policies be a possible substitute? --> Combination of this language and language from Alan along with specific language of policies for which global coordination is necessary to preserve security, stability etc might work. Problem can be solved by specific language. - We are talking about how to constrain ICANN to its mission - for example: how must we deal with timezone database? Outside mission. Netmundial - outside mission. We need to give this organization the opportunity to breathe. - With consensus of community, consensus policy could be set and required. - Proposal: setting policy through a bottom-up, consensus-based multistakeholder process - Could you achieve consensus through bottom-up? - Need to bear in mind there are different definitions of consensus in various groups at ICANN. - Reminder to use CCWG draft report v1.1 for deliberations. - IP address and number resources: is the intention to leave it as it is? ACTION ITEM - Insert suggestion regarding numbering resources in mission language AGREEMENT - The following proposal is to be plugged into the public comment: setting policy through a bottom-up, consensus–based multistakeholder process Fundamental Commitments & Core Values - Proposal to change text on p. 23 "employ... processes" - Should be acknowledged ICANN is operating as an open, multistakeholder etc organization? - Fundamental Commitments - We have added language from articles of incorporation that references international law in order to make it durable RECAP - CCWG to further digest language that was suggested – will reopen, as needed. Moving to the "purple version" document - 4-23 Commitments and Core Values circulated by Becky prior to call Link: https://community.icann.org/download/attachments/52897394/4-23%20Annotated%… Edits reflect AoC and WP1 AoC language. - Wordsmithing should be taken offline. - ICANN "commits" should be changed to ICANN "shall". Revisit this terminology ACTION ITEM - Becky to remove "commits" and identify new terminology - Request to discuss 8.b AoC. --> 8 a and 8 c were brought in as additional values. According to a careful read of existing bylaws - article 18 - covers 8b and says "shall" --> We should explicitly state the above. Is 8.b going to be fundamental? --> Why make 18.1 fundamental? --> 18.1 is existing bylaws and is consistent with AoC 8.b but open question whether 18.1 needs to be flagged as fundamental. ACTION ITEM - State why 8.b is not in the document and whether it is fundamental - What parts of these mission and values belong in articles of incorporation? One will create legal restriction. Wording needs to be flexible enough. Legal comments should be taken into consideration as drafting occurs. Fundamental Bylaws Memo was circulated yesterday. Conclusions from Istanbul were reinforced on 31 March. We had agreed on scope, principles and have legal confirmation it is feasible. Discussion today will be about additional elements provided in memo about thresholds to propose, to approve and about the process. We should also consider Jan Scholte advice: if we set threshold too high, we might create inability to change. - This memo says there will be a provision in bylaws that lists which will be fundamental. There may be parts of removal process that make more sense to leave in Bylaws rather than incoporating them into fundamental Bylaws. It would be easier to have all fundamental into one place but it would make Bylaws in general less difficult to use and would becloud transparency. - Why is the process only identified for Fundamental Bylaws changes that are identified by the Board/Staff? What if its a proposal recommended through a community process? --> There is a range of ways changes to Bylaws might come into existence. Wherever they emerge from they end up at Board making decision. - Is this process to be invoked only after Board has approved Bylaws? Do we have opportunity to reflect as part of public comment? If Board putting something out for public comment is trigger, Bylaws arise from different directions in organization and impact differently. -->There is no intention to change current process. Paragraph a deliberately uses through usual processes. The Board would need to cast higher majority. There is no intention to limit. We are trying to interfere as little as possible with current process. We do not need to be stuck in detail on where Bylaw is coming from. - Things work differently for numbers and names. Suggestion to add a memo that this description is considered to be applicable to numbering policy for further consideration to be made. ACTION ITEM - Add a memo to address request regarding numbering resources ACTION ITEM - Clarify that do not intend to change the current process - How will ideas be reflected into public comment period document? --> Everything that starts into 6.3 will be pasted in document for public comment ACTION ITEM - Reflect numbering policy-related document in edits ACTION ITEM - Rediscuss whether 18.1 should be listed as fundamental Bylaw AGREEMENT - Fundamental Bylaws will be integrated into public comment period Independent Review Panel Enhancements This is one of the most important goals to achieve. There is an existing process. We need to improve process. We have reviewed input that process only takes into account process but does not go into substance. Many commenters raised question or concern that if we were to design enhanced IRP, this panel would need to look into susbtance-related issues (in additional to procedural matters). The most relevant issues are the open questions in the document: outcome (binding or not), finality (can be appealed or not), selection, composition, independence, diversity and size of panel. - Outcomes, finality of process, selection process for panelists, size of panel, diversity, independence issues would benefit from public input. What is the level of input we would seek from community? - We have received memo from legal counsel. - IRP process can be enforceable - it is limited by scope of parties and there are couple of exceptions. It can be enforceable for a vast number of areas. Parties have great flexibility in designing process and these rules are vital. Agreement in our context would be in ICANN Bylaws - binding - we could insert agreement through which they become for members and arbitrators and it does not exclude third parties. - Arbitration is enforceable under Federal Arbitration Act. Prevailing party could take decision to court and have a court order to obtain complaint. Court will make sure it reflects due process. Award will be made strongly enforceable and can be taken to many countries: they are broad international acceptation of these awards. - Two exceptions exist: 1) Powers reserved to members: if community wants to have certain power reserved to members it can be reserved to members in documents that sets up membership structure. Powers of the members is superior to Board and IRP. It is a strong accountability measure; 2) Board fiduciary: there is a limitation in the law that matters are so material to the Board that it would undermine statutory obligations and fiduciary roles to allow IRP to bind Board. IRP would have ability to issue advisory rulings. - If there is an arbitration between two parties - the challenge to that in court would be a very limited one. Ground to changing are essentially to Federal courts - would not look back to substance. - Rule of decision is a flexible one. Whatever standard of decision, we could have rule of decision be what the group wanted. - Third parties could agree to process when they go into it. RECAP: IRP finality can either be a final solution or subject to appeals - - The IRP can be structured as arbitration body. - IRP can be binding - we won't need to recall Board to have Board take the IRP decision as binding but spilling the Board would be explored if they didn't act. - AGREEMENT - any outcomes from IRP would not be appealable under the proper IRP process but there would always be opportunity to challenge this decision in court of law - The standing to go to court would be determined by rules of that court. Parties to the agreement generally. - Understanding from Istanbul: IRP could issue limited set of decisions that could cancel decision from Board, cancel act or ask for a redo but not completely change the substance of a decision. Limited set of outcomes and last resort created balance. - Who decides on limits and criteria? - IRP evaluting action or inaction against mission, core values provision would be standard against which ICANN would be measured. --> The first instance set up as panel would have to decide whether it views itself as having jurisdiction. - The scope of the IRP appears limited to the parties involved, while the issues raised in any given case would be either of interest to the broader community and/or could set a precedent. So what happens if the IRP parties come to some form of agreement that is not considered acceptable to others? --> It would not be uncommon to allow intervention from parties. - IRP would be suitable for determining or challenging act of ICANN staff to determine in carrying out its mission, its acting in accordance with core values etc. This is the starting point of any IRP. - Does the IRP have an appeal process for any outcome/decision? Clarification needed. -> That is not the usual approach. Parties that volunteer agree to committing themselves. If demonstrated procedural error (IRP exceeded scope), appeal can be taken. People do create appeal mechanisms for arbitration. AGREEMENT - Remove question 2 - Decisions are final (no appeal) - The panel can only be of the following types : confirm decisions, or cancel decisions, partially or totally ACTION ITEM - Submit final wording to legal counsel to ensure it is appropriate - We are talking about mechanism that would be internal to ICANN - would be looking at ICANN experts. - We could have panelists nominated by Board and confirmed by the community. They could be proposed by international arbitration body. There would be separation of powers with respect to selection. They would be required to have expertise and skillset . We may be confusing people with "internal" language. We are looking for standing panel of arbitrators and the intention is to have them independent. ACTION ITEM - Replace "internal" with independent review panel In Istanbul, we discussed diversity and proposed the following selection process: 1) third party proposes names; 2) Board selects and 3) community group confirms. - There should be criteria that panels should not have engaged with ICANN for a x number of year. - Suggestion that requirement for them to remain Independent post term. ACTION ITEM - Clarify independence requirements - We first need to define size of panel befor discussing diversity - For example - panel of 7 arbitrators - 3 could be called upon to hear case and make decision. We would need 5 or 7 in all cases - could choose one etc. We are talking about small number of panelists - panelists who could be chosen to hear cases and called to form panel. - Difficult to reach geographical diversity --> It is critical hence minimum of 5 – put out question for community whether want to have extra arbitrators around. --> Diversity is one thing to strive for but should not be hard requirement. Agreement proposed standing panel 5-7 and decision between 1-3 to be put out for public comment. Open question: the Standing Panel members should have diversity in geographic and cultural representation. Diversity of experience will be considered in completing the composition of the Panel. We could consult community on this. Reconsideration Process Enhancements The reconsideration request process is defined in Bylaws. Reforms are not really significant - they are tailored to address specifc changes. - We have increased amount of time a person has to file request. We have increased standard of action. We have added transparency requrirements, improvements, posting rationale within timeline, recordings/transcripts transparency, opportunity to review documentation, deadline, determine that it would go to Ombudsman first and that decision would be made by entire Board. - What is the rationale for timeframe? --> To know how long it is taking people to get decision back would be useful - There have been discussions regarding strenghtening DIDP AGREEMENT - DIDP to be dealt with within WS2 Adding core values and mission, is that sufficient to revalue substance of a decision? --> Any decision could be challenged by anyone. What does this mean for finality of being able to accept that ICANN decision has been taken. There was pushback on broadening of scope. This was reaction to meet both sides of that concern. --> We have enough examples over years where community feels bad decision was made. Would this have changed any of the outcomes? --> Data would be needed. - Suggestion to couple this with fundamental Bylaws section related public comment questions. AGREEMENT - The document can be used as is basis - DIDP is deferred to WS2. Welcome additional questions from WP2. Encourage community to look at items that are encapsulated in template SESSION CONCLUSIONS We have reviewed WP2. On mission and core values: fine-tuning is needed. We have open questions on how we address 18.1 and whether we want this as fundamental bylaw. Legal implications needed. We are close to final agrement on fundamental Bylaws. We have received a confirmation on legal feasibility on IRP and we have outlined key aspects of architecture for public comment. Lot of work is needed on details but we are on the right track for the public comment process. This also applies to the reconsideration process. We will resume some of open questions tomorrow and will come out with significant progress to report to the community.

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