- Accountability-Cross-Community

Legal sub-team update
by León Felipe Sánchez Ambía March 26, 2015

March 26, 2015

Dear all, Moving forward, following the agreements made in our meeting with the wider CCWG and the legal sub team’s call on 24 March, the Legal Subteam mailing-list will, from now on, be the sole avenue for any communications, requests and advice sent to and received from our independent legal experts. Also as agreed during our call, mailing-list posting rights have been edited to help streamline communications. It was agreed that a compact subset of legal sub-team participants would serve as executive team in order to make communications easier to handle between the CCWG and the law firms. Agreement was established so solely members of the legal executive team now have posting rights to this list. The list will remain open for anyone to observe and it will continue to be publicly archived. In the event that anyone form the larger CCWG group would like to raise a question or issue, the question should be posted to the general list so it can be properly documented by the legal subteam and sent to the lawyers accordingly. Questions that fall out of the scope stated in the CCWG charter will not qualify to be addressed by the independent legal experts. A description of the agreed scope of work, rules of engagement and working methodologies is available below. This information will be posted on our dedicated wiki page <https://community.icann.org/display/acctcrosscomm/Legal+SubTeam>for full reference. Thanks Best regards León --- Scope of work Adler & Colvin will be the primary source of advice on corporate governance law and California not-for-profit law. Sidley & Austin will be addressing international law and jurisdiction issues and any additional topic, as deemed appropriate. Rules of Engagement & Working Methodologies COMMUNICATIONS & COORDINATION All formal requests, including follow-up clarifications, are made in writing and communicated through the public mailing list ccwg-accountability5(a)icann.org <mailto:ccwg-accountability5@icann.org> – public archives available at http://mm.icann.org/pipermail/ccwg-accountability5/ <http://mm.icann.org/pipermail/ccwg-accountability5/> All weekly calls to be recorded, transcribed and archived in the public wiki space. Law firms report to the CCWG-Accountability and receive instructions from the legal executive sub team only. Legal Executive Subteam Members include: León Sánchez (lead); Athina Fragkouli; Robin Gross; David McAuley; Sabine Meyer; Edward Morris; Greg Shatan and Samantha Eisner (support);. Private coordination meetings between lawyers would be acceptable and desirable. Information should flow freely between law firms. Should there be the need for a call between the available members of the Executive Legal Subteam and any of the law firms in order to address urgent matters without the ability to setup a public call, it will always be required to provide proper debrief to the open list in a timely fashion. This method will be exceptional. A single mailing-list will be used. Legal sub team members who are not listed in the legal executive subteam have viewing rights to help streamline communications. Posting privileges should carry request privileges. The mailing-list remains open to any observers. Activities and requests will be documented on the dedicated wiki page - https://community.icann.org/display/acctcrosscomm/Legal+SubTeam <https://community.icann.org/display/acctcrosscomm/Legal+SubTeam> Legal sub team and law firms coordination call will be held on Wednesdays at 15:00-16:00 UTC, starting on April 1. Calls will be open to anyone, they will be recorded, transcribed and archived in the public wiki space. REQUESTS FOR EXPERTISE No individual outside the executive legal sub team should send requests to law firms. Law firms are to alert the legal executive sub team of any requests made by individuals outside the legal executive sub team. During face-to-face meetings/calls, high level legal advice should come in real time in reply to anyone raising a question within the Charter’s scope. Legal Executive Subteam should flag any items that are for research. Legal Executive Subteam is expected to formulate questions into a request for distribution in PDF or WORD format to obtain legal advice. Requests for legal advice should be numbered consecutively for reference purposes. All requests will be archived in the public wiki space.

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Re: [CCWG-ACCT] Cochairs Statement - Istanbul (23-24 March 2015)
by Roelof Meijer March 26, 2015

March 26, 2015

I am surprised by the addition "where the Board has failed to appropriately consider community input” to the phrase „reject Board decisions on Strategic Plan and budget”, as this seems to introduce a condition to the possibility to reject (other than the voting threshold for whatever mechanism we eventually choose). Moreover „appropriately consider” is a very subjective condition, while I would say it also opens the possibility of the board "appropriately considering" community input, but not implementing it, while by consequence the condition for rejecting the board decision (failure to appropriately consider) can no longer be met. In fact, the whole section is poorly phrased as „rejecting board decisions on Strategic Plan and budget” lacks the clear focus of our discussion on „vetoing a board decision to adopt a strategic plan or budget" Needs some repair action, I guess Best, Roelof From: Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: woensdag 25 maart 2015 17:13 To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Cochairs Statement - Istanbul (23-24 March 2015) Dear all, This is to inform you that the CoChairs statement (pasted below) may be found at: https://www.icann.org/news/announcement-2015-03-25-en A video interview with CoChair Thomas Rickert is also available - see: https://www.youtube.com/watch?v=vVof6v0MguE These links will be added to your wiki pages. Thanks, Best regards Alice CCWG-Accountability Co-Chairs Statement Istanbul, 25 March 2015 | Thomas Rickert, León Sánchez & Mathieu Weill <https://www.addthis.com/bookmark.php?v=300&winname=addthis&pub=ra-52fcc7eb2…><https://www.icann.org/news/announcement-2015-03-25-en#><https://www.icann.org/news/announcement-2015-03-25-en#><https://www.addthis.com/bookmark.php?v=300&winname=addthis&pub=ra-52fcc7eb2…><https://www.icann.org/news/announcement-2015-03-25-en#><https://www.icann.org/news/announcement-2015-03-25-en#> Members and participants of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability)<https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+A…> met in Istanbul, Turkey, on 23-24 March 2015. The meeting<https://community.icann.org/pages/viewpage.action?pageId=52890276> was attended in-person by 42 members and participants. A number of participants and observers joined the meeting remotely using the virtual meeting room. Three Advisors<https://community.icann.org/display/acctcrosscomm/Advisors> also participated. Guided by the four basic building blocks<https://community.icann.org/display/acctcrosscomm/Building+Blocks> identified at ICANN 52 in Singapore, the group further discussed and refined accountability mechanisms that need to be either implemented or, at least, committed to before the transition of the IANA stewardship can take place. The meeting made progress on three main areas: * Enhancing ICANN's Mission and Core Values; * Strengthening the existing independent review process; * Mechanisms for community empowerment. Specifically, the group discussed changes that should be made to the Mission and Core Values inICANN's Bylaws. For example, the group discussed how key provisions of the Affirmation of Commitments<https://www.icann.org/en/about/agreements/aoc/affirmation-of-commitments-30…> (AoC) could be reflected into the Bylaws. Additionally, the group worked on strengthening the existing independent review process suggesting improvements to its accessibility and affordability, and discussed process design including establishment of a standing panel with binding outcomes and panel composition (diversity etc.). The IRP panel decisions would be guided by ICANN's Mission and Core Values. With regards to mechanisms for community empowerment, the group identified powers and associated mechanisms including the ability to: * recall the ICANN Board of Directors; * approve or prevent changes to the ICANN Bylaws, Mission and Core Values; * reject Board decisions on Strategic Plan and budget, where the Board has failed to appropriately consider community input. The CCWG-Accountability supported the concept of a Fundamental Bylaw that would provide additional robustness to key provisions. The Fundamental Bylaw would apply to: * the mission; * the independent review process; * the power to veto Bylaw changes; * new community powers such as recall of the Board and the right of the community to veto certain Board actions. Changes to the Fundamental Bylaws would require high standards for approval by the community. The notion of an empowered community involved discussion of community representation, i.e. who constitutes the community. The CCWG-Accountability is also aware that to wield these new powers, the community, however it is constituted, must itself meet high standards of accountability. ICANN's accountability would also be enhanced by ensuring its operations and processes are more globally inclusive. The group has engaged two law firms to provide independent legal advice and confirm feasibility of the suggested frameworks. The firms are Adler & Colvin and Sidley & Austin. As work progresses, all recommendations will be subject to the stress tests against contingencies already identified. The stress test methodology has been successfully tested against the draft accountability mechanisms. The CCWG-Accountability is confident that their proposed mechanisms will satisfy the needs of the CWG-Stewardship1<https://www.icann.org/news/announcement-2015-03-25-en#_ftn1> as they look to stronger accountability protections. The CCWG-Accountability and CWG-Stewardship Co-Chairs met to update and fully brief each other on the progress made so far. They outlined key areas of accountability that the CCWG-Accountability Co-Chairs considered are most relevant for the current and ongoing work of the CWG-Stewardship. The CCWG-Accountability Co-Chairs will brief the CWG-Stewardship in the opening part of their face-to-face meeting on Thursday, 26 March. Next Steps: The CCWG-Accountability will continue refining its recommendations. The community is expected to provide feedback during a public comment period to be held before ICANN 53, Buenos Aires meeting. The results of the public comment period will inform further deliberations during that meeting. The group is developing an engagement plan to ensure its proposals are widely known and understood, and to encourage comprehensive response to proposals during the public comment period. The CCWG-Accountability Co-Chairs recognize the outstanding volunteer work that has produced these substantive proposals in a very short period of time. The community's effort has been exceptional. About the CCWG-Accountability The CCWG-Accountability was established to ensure that ICANN's accountability and transparency commitments to the global Internet community are maintained and enhanced in the absence of the historical relationship with the U.S. Government. The group has divided its work into two work streams (WS): * WS1 is focused on identifying mechanisms enhancing ICANN accountability that must be in place or committed to within the timeframe of the IANA Stewardship Transition; * WS2 is focused on addressing accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition. The CCWG-Accountability consists of 177 people<https://community.icann.org/pages/viewpage.action?pageId=50823970>, organized as 26 members<https://community.icann.org/pages/viewpage.action?pageId=50823968>, appointed by and accountable to chartering organizations, 151 participants<https://community.icann.org/pages/viewpage.action?pageId=50823968>, who participate as individuals, and 46 mailing list observers<https://community.icann.org/display/acctcrosscomm/Mailing+List+Observers>. The group also includes one ICANN Board liaison, one ICANN staff representative, and one former ATRT member who serves as a liaison. In addition, there are 4 ICG members who participate in the CCWG-Accountability, including two who serve as liaisons between the two groups. Seven Advisors<https://www.icann.org/news/announcement-2014-12-17-en> have also been appointed to contribute research and advice, and to bring perspectives on global best practices to enrich the CCWG-Accountability discussion. The CCWG-Accountability is an open group: anyone interested in the work of the CCWG-Accountability, can join as a participant or observers. Participants or observers may be from a chartering organization, from a stakeholder group or organization not represented in the CCWG-Accountability or currently active within ICANN, or self-appointed. For more information on the CCWG-Accountability or to view meeting archives and draft documents, please refer to their dedicated wiki<https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+A…>. A video interview with CCWG-Accountability Co-Chair Thomas Rickert can be seen here<https://www.youtube.com/watch?v=vVof6v0MguE>. ________________________________ 1<https://www.icann.org/news/announcement-2015-03-25-en#_ftnref1> Cross Community Working Group (CWG) to Develop an IANA Stewardship Transition Proposal on Naming Related Functions

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Re: [CCWG-ACCT] Your message to Ccwg-accountability5 awaits moderator approval
by Dr Eberhard W Lisse March 26, 2015

March 26, 2015

Why did you post to a mailing list which blocks replies to your posts? el -- Sent from Dr Lisse's iPad mini > On Mar 25, 2015, at 23:30, ccwg-accountability5-bounces(a)icann.org wrote: > > Your mail to 'Ccwg-accountability5' with the subject > > Re: [CCWG-ACCT] Legal sub-team update > > Is being held until the list moderator can review it for approval. > > The reason it is being held: > > Post by non-member to a members-only list > > Either the message will get posted to the list, or you will receive > notification of the moderator's decision. If you would like to cancel > this posting, please visit the following URL: > > https://mm.icann.org/mailman/confirm/ccwg-accountability5/67c3d0a782223b4bf…

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Re: [CCWG-ACCT] [Cctldworld] Today's practice examination question: ICANN CEO on the CWG members . .
by Dr Eberhard W Lisse March 25, 2015

March 25, 2015

Dear Co-Chairs, please review the enclosed emails. I do agree with Rod Chehade that in spite of my 24 years uninterrupted experience as ccTLD Manager I have no clue how the IANA function manager works. I only know how it SHOULD work. And so do my colleagues. But that is easily solved, and in the spirit of Accountability, we must now ask him to explain to us how this actually works. Since the NTIA and Congress seem to wish to have a consensus proposal from CWG and CCWG-Accountabilty and I would think that until such time we know, there can be no such thing. Hence herewith my request to the co-chairs of CCWG-Accountability to discuss this with counterparts of CWG today in Istanbul and the obtain the information from the CEO, as a matter of urgency. greetings, el -- Sent from Dr Lisse's iPhone 5s > On Mar 25, 2015, at 11:54, Danny Aerts <danny.aerts(a)iis.se> wrote: > > Martin, > > It is nice that you explained to me Fadi's message and I am aware of the challenges for the CWG. I react on the stressed tone and aggressiveness of the CEO of ICANN who basically calls representatives of our community (including staff from my organization) for incompetent because they do not deliver the "outcome" on the expected deadline. This is maybe how you steer a company but not a multi-stakeholder process. > > Danny Aerts > VD/CEO > .SE (Stiftelsen för Internetinfrastruktur) Ringvägen 100, Box 7399 > 103 91 Stockholm > Växel: 08-452 35 00, direkt: 08-452 35 61, > mobil: 070- 990 5489 > E-post: danny.aerts(a)iis.se > Webbplats: www.iis.se > > -----Ursprungligt meddelande----- > Från: cctldworld-bounces(a)icann.org [mailto:cctldworld-bounces@icann.org] För Martin Boyle > Skickat: den 24 mars 2015 23:41 > Till: Keith Davidson; cctldworld(a)icann.org > Ämne: Re: [Cctldworld] Today's practice examination question: ICANN CEO on the CWG members . . > > I'd love to join Keith in saying that I really know how the IANA functions work, but I can't, even though I', on the ICG and follow the CWG-IANA, so derided. > > I would note, however, that we are looking for some way of ensuring oversight for the IANA functions to replace the US Government role and that it is important to ensure that we maintain a reasonable quality of service to us, the customers, without capture of the function and (much more important from an operational point of view) that we do not have to sell our souls to ensure that the requested changes are provided. > > So I have some resonance with Fadi's message, that we do need to build in service level commitments and practical delivery. However, I also recognise that the history of ICANN's top-down imposition of rules (such as those that soured ICANN-ccTLD relations in the early years) cannot be repeated. The potential to remove the IANA from ICANN if it tried to do that again is attractive (except to ICANN, obviously), but it should be seen as such - a remote possibility. > > Being controversial, this "nuclear option" has taken a lot of airtime both in the CWG and in ICANN CEO thinking. But since this intervention by Fadi in Singapore, a lot has changed: > > * the CWG has focussed its thinking more on all the more normal operational stuff - like resolving issues and continuing to assure a professional service delivery - with as customer-serviced an understanding as possible; > > * ICANN enhanced accountability has also developed, including thinking about how to respond to systemic service failure or unreasonable impositions. > > So without this message, I think many - including the ignoramuses (like me) - had already recognised the importance of getting a coherent plan in place and have been working on it for a good long while. > > What is really important is that we do get views from the ccTLD community to support our work. Not for the reasons that Fadi mentioned about a lack of knowledge of your representatives: (leaving me out of it) there are good ccTLD reps involved who (as Keith flags) have been instrumental in shaping the IANA. But for showing a clear front about what we consider to be the things we need (and the safeguards we want in place) from the IANA function going forward. > > Input welcome! > > Martin > > > > -----Original Message----- > From: cctldworld-bounces(a)icann.org [mailto:cctldworld-bounces@icann.org] On Behalf Of Keith Davidson > Sent: 24 March 2015 23:54 > To: cctldworld(a)icann.org > Subject: Re: [Cctldworld] Today's practice examination question: ICANN CEO on the CWG members . . > > > >> On 25/03/2015 6:27 a.m., Nigel Roberts wrote: >> According to Fadi Chehade**, reported by The Register today: >> >> "There is no one today in the CWG [Community Working Group] who even >> understands how the functions work." > > I am one of those people that Fadi refers to, on the CWG, and I know a whole heap more about the IANA functions than Fadi does. I am aghast and insulted by what Fadi says. It is beyond his comprehension that the multistakeholder consensus decision making process is slow and arduous. > It is also beyond his comprehension that he might very well be wrong. > > It is not very often that I publicly comment on any individual or their actions, but I am sufficiently appalled by Fadi's statements throughout the Singapore meeting. And he personally attacked me during a private meeting there also, something I found totally unprofessional and inappropriate. So I guess if the only chance to retaliate is to be equally rude, then I feel justified in this response. > > </rant> > > Keith > _______________________________________________ > Cctldworld mailing list > Cctldworld(a)icann.org > https://mm.icann.org/mailman/listinfo/cctldworld > _______________________________________________ > Cctldworld mailing list > Cctldworld(a)icann.org > https://mm.icann.org/mailman/listinfo/cctldworld > _______________________________________________ > Cctldworld mailing list > Cctldworld(a)icann.org > https://mm.icann.org/mailman/listinfo/cctldworld

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Notes-Recordings-Transcripts for CCWG ACCT LEGAL SubTeam Meeting 24 March
by Brenda Brewer March 24, 2015

March 24, 2015

Dear all, The notes, recordings and transcript for the CCWG Accountability LEGAL SubTeam Meeting 24 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52894267 These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. Action Items ACTION ITEM - Alice to ensure all have access to mailing-list ACTION ITEM - shortlist of names to be sent to lawyers ACTION ITEM: Inform larger group of mailing list settings ACTION ITEM Alice to implement posting privileges ACTION ITEM - Brenda to send invites to both law firms as well as legal subteam (starting April 1) - TIme 15:00 UTC on Wednesdays (duration: 60 min) ACTION ITEM - Legal subteam to coordinate questions on 24 March COB ACTION ITEM - Law firms to start working on 25 March for initial approach to be delivered on 27 March Notes CCWG - Legal SubTeam Call Chat sessions are being archived and follow the ICANN Expected Standards of Behavior: <http://www.icann.org/en/news/in-focus/accountability/expected-standards> http://www.icann.org/en/news/in-focus/accountability/expected-standards These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. Ground rules - All communications should be public. A publicly archived mailing list has been set up. ACTION ITEM - Alice to ensure all have access to mailing-list - Observers have on read-only mode ACTION ITEM - shortlist of names to be sent to lawyers - All communication should be made through the public mailing list - ICANN expected standards of behavior - Engagement letter states that no individual outside the legal subteam should address law firms. Should that happen, alert subteam of these communications. Measures will be taken accordingly. - Aware that relationship between Adler and SIdley is ongoing friendly relationship. History in different aspects that should make coordination easier. - Private meetings between lawyers to coordinate would be desirable. - Ground rules will be ironed out in working methods - Engagement letters are drafted so that they address that what ICANN is client, ICANN has instructed law firms to refer to CCWG only. - Those present on this call will constitute shotlist that will be sent to lawyers - All calls should take place in adobe connect unless one-on-one calls. Calls should be recorded and transcribed. Sheet of who is on call and what happened. All instructions with request for item of legal work should in writing on legal subteam mailing-list for recording purposes. - Any follow-up clarifications for request should also be in writing on mailing list - Legal relationship with CCWG is larger group than subteam. Interest in undersanding composition to identify players. --> The CCWG is a larger group (160 people) - legal subteam (25 people) - legal executive subteam (6-7 people). Cultural diversity - Michael Clark has attended full set of meetings. Holly Gregory joined later on Tuesday. Did not join WP2 call on Tuesday. - Adler was on remotely for 90 min on Monday. It was not recommended that we attend rest of meeting. Greg attended chat room discussions - Plan to review recordings - Michael Clark will share perspectives on Thursday - Suggestion to review meeting in its entirety in Adobe Connect room - Ability to see transcript, recording, adobe connect recording - Adobe connect chat is an important resource -- Scope of Work - Need to avoid duplicate work. Structure we envision to have in working both law firms is to have Adler provide primary source of advice regarding corporate governance law and California not-for-profit law. Working primarily with Adler. Will be going to Sidley to cross-check. - International law - jursidiction issues etc anything else should be addressed to Sidley. - Sidley has been working for another group within ICANN and some of materials involved California law. Information should flow freely between law firms. -- Working Methods - When face-to-face meetings/calls happen, legal advice should come in real time in reply to anyone raising a question. - Method for addressing questions - notes would be taken and formulate questions into request - Make sure that agreement within subteam that certain items are for research or not - Instructions should come from legal executive - Single mailing-list - no executive list - Assign posting privileges vs. read only. Posting privileges should carry request privileges ACTION ITEM: Inform larger group of mailing list settings ACTION ITEM Alice to implement posting privileges - Observer rights to anyone on list. - Honor transparency or obligations - to manage traffic - regular calls Conclusion - When formulating requests for precise legal advice, distribute a Word or PDF to obtain legal advice. - One weekly call - Wednesday at 15:00-16:00 UTC - Number requests - Wiki updates ACTION ITEM - Brenda to send invites to both law firms as well as legal subteam (starting April 1) - TIme 15:00 UTC on Wednesdays (duration: 60 min) Timeline - Urgent need for initial legal advice. - Law firms to coordinate based on determination of which questions go to which firm ACTION ITEM - Legal subteam to coordinate questions on 24 March COB ACTION ITEM - Law firms to start working on 25 March for initial approach to be delivered on 27 March Kind regards, Brenda

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Notes-Recordings-Transcript links for CCWG ACCT F2F Day 2 Session 1 | 24 March
by Brenda Brewer March 24, 2015

March 24, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Face to Face DAY 2 Session 1 on 24 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893812 These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. Action Items ACTION ITEM: work on wording of jurisdiction problem statement for WS2 ACTION ITEM: Highlight review features we are introducing Notes These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. NOTES: Day 2 Session 1 Legal Subteam Update - Legal subteam is an open group. Two law firms have been assessed and we are currently in process of finalizing engagement letters. Sidley is engaged with CWG and has representation in Istanbul. Adler is participating remotely. Adler had wider experience in not-for-profit California law and has been identified as primary source. The first coordination meeting will take place on 24 March at 20:00 EET room #19 and open to anyone who can join. - It was suggested that document where would have Q&As be provided along with answers that may raise questions as well. The document should also encapsulate barriers. - Legal scoping is not a closed document. Answers may raise questions in time. -Legal Team should remained compact but open. Concerns that it may be too large and that executive subteam would be useful. Scoping document will remain a living document - Call for consensus on whether legal subteam should continue to be link between CCWG and firms. Responsibilities for legal subteam include: channel questions and follow-up with law firms. -> Legal Team will remain liaison between CCWG and law firms. Jurisdiction - A series of discussions have occurred on the list. - Jurisdiction may be viewed from different perspectives: HQs, law for contracts, laws applicable to day-to-day administration of organization, standing to be sued, tax/corporate law. - ICANN is subject to jurisdiction in many courts in world. Business choices ICANN can make. There is often a confusion about where ICANN can be held accountable into court. It is not the case ICANN is only subject to California law. - Article 18 - section 1 offices and seal - Need to differentiate between jurisdictional issues we may come across while discussing community powers and mechanisms related to accountability from question of jurisdictional options related to the place where ICANN is HQed or has legal presence. Different alternatives for jurisdictions is WS2. Limitations for current jurisdiction should be prioritized for WS1. - There may be no need to change jurisdictions if everything in place. - Solid driver needed for WS1. - Jurisdiction in WS2 - no need to open it now in light of time constraints. - Finding a new location/jurisdiction will be complicated and congress will not support it. Answers may provide alternative solutions without moving location. Answers suitable for international framework. Advisors can follow up. - Do not support focusing energy of WS1 on jurisdiction and yet pushing it back to WS 2 is not efficient for group. Saying it will be in WS2 is a worrisome answer. There will be interest in understanding how this will be addressed. Group needs to define now whether gaps have been identified in jurisdiction context. If we see any gaps, need to ensure there is a common understanding of what requirements would be. - Open clause to allow jurisdiction issue change to some other territory so long as territory complies with requirements is what we need to iron out now. - Jurisdiction document will help define requirements. - We need to focus on accountability - if we find facts in California law or Swiss law, need to factually-base decisions. We will go forward in future if we need to. - Fadi Chehadé, during his testimony, told Senators that he expected AoC obligations and jurisdiction issues to be incorporated in Bylaws. He set expectations and there are now concerns that Congress is now expecting this. We may not be able to change jurisdiction based on this comment. This was intentional and it complicates our work. - "There are no plans to change jurisdiction" is not the same. His statement was not that we should not look into change. - Jurisdiction is among top three questions. Need to explain how we are addressing this. Common view of how we respond to this question is needed. - There was an expectation that AoC obligations including jurisdictional would be inserted in Bylaws. - Maintaining ICANN in California law may exclude some structures (supervisory Board is probably not a lawful structure under California law). If excluding some of powers/mechanisms, we may need to move jurisdictions. CEO's statement restrains us in a great degree. -Studies were made by ICANN on this subject and it is important to take them into account: e.g. President Strategy Committee. In Switzerland, there is specific laws for international organizations (extra-territorial laws) and this might be what we need to look for. We may need to find extra-territorial law for multistakholder organization (WS3) - We need to look from accountability perspective. Decision is up to this group. While I doubt it is necessary to move, if decide it is necessary, it will be something we will need to deal with. It is not something that should govern what CCWG produces. Staying in California is probably as good as any alternative. With respect to incorporating AoC into bylaws, unsure that means including clause saying we need to stay in jurisdictional home. - Concerns getting into a dangerous situation where grass is greener. - What are real questions we are trying to answer? Is there another jurisdiction that would increase ICANN's accountability? We are diving into details before answering why looking into subject. Overall question is do we really think it is realistic that jurisdictions be changed for it to happen? We are short of time. - Choice of words is decisive. What we are doing and not doing is dangerous. The level of detail in this document is far too great. We need to simplify message. People might be really interested in practical details. In WS1: can ICANN's accountability improve depending on law applicable to its actions? That would be concrete enough to address concern. - At political level, there is a desire that ICANN move out of US. Is it possible that ICANN can use different jurisdictions to govern different contract for its areas of work? We cant move the jurisdiction. How can we strategically do this so that resulting transition plan is acceptable to Congress but do not say that clause of jurisdiction goes to bylaws? There is a risk that Congress will rule as unacceptable. - Many governments will only sign contracts in their jurisdictions. We can sign contract in any jurisdictions, it's a pure business decision. - Question of HQ is outside of scope, we are here to come up with recommendations to improve accountability. Primary question is scope. Moving from California does not mean moving out of USA. - Issue of jurisdiction and political is not in scope - it's CWG - contractual is not accountability issue/scope - identify whether mechanisms important enough to move out of jurisdiction - so far not in this situation. - Other stakeholders in community were not involved in AoC discussion. - Consider out of scope unless obstacle. Conclusion - Nothing can be WS1 - Open scope of issue if find our requirements cannot be taken or implemented under California law. ACTION ITEM: work on wording of jurisdiction problem statement for WS2 AoC Bylaws - Steve del Bianco walked the group through WP1, 2A, B, C, D, E. Bilateral agreement with US government to support commitments ICANN is making for global public interest. Concerns that absence of IANA contract may lead to AoC disappearing. Stress test #14 - IANA. It is canceleable with 120 day notice. ICANN CEPO declared Aoc would be brought into Bylaws - that frames an expectation. Four specific paragraphs where ICANN makes commitments are candidates to be brought into Bylaws. - 4 improvements were suggested to AoC bylaws: 1) ability to sunset reviews and create new ones; 2) community would appoint members; 3) enhance obligations on ICANN to implement recommendations; 4) access to ICANN documents. - In section 5 of Bylaws, there is an article on structural reviews. Suggest to import there. - Affirmation reviews contain commitments - should commitments live in core values section (WP2)? - Suggestion that notion of evaluating effectiveness of GAC may not be accountability and transparency we should look at. Role of GAC would. - This change would allow termination of review and commencement of additional reviews. - Selection of independent expert. - Review of confidential document. - Timeline extended. - Selection via community. - Suggestion that group not go in drafting details. Feedback included: -Effectiveness of GAC: whether GAC provided effective voice for governements within ICANN system - word differently. - Requirements annual reports on implementation as follow-up to ATRT2 - Agree that effectiveness needs to be looked at. Selection process needs to be mindful of diversity. - CCTRT there is contradiction. - We are changing AoC - it is important that people understand amendments being made. ACTION ITEM: Highlight review features we are introducing - Community appoints: each SO/AC appoints people or community group comes together to make selection - Clarify --> Do we want to link it to mechanism for community --> Need to be definitive on what trying to achieve - Would not put "WHOIS" term in Bylaws - gTLD directory - ATRT review weaker because of limits AoC set i.e. reviews of reviews - Timing needs to be fixed - Internal security of ICANN is changing on monthly basis - looking at overall strategy for security every 4 years is a lifetime - How does document process work: staff decides what is shown. Organization where accountability is not transparent (DIDP case) - Flagging Article 7 of AoC Bylaws - What of the accountability of community? It is an issue that is lost every time again. Congress will raise this. - Agree with notion that in case of ccTs, no future gTLD rounds until implemented. Momentum of recommendations. - Power on mindmap: force management to implement mechanism - this could be revisited as part of IRP. - Large comings of community - will that be looked at as part stress-test? - Culture of openness - core value we don't have right now. - Everything is transparent unless specific reason not to be - "No less frequently than" - if community felt compelled it could be started earlier. - Balance between diversity and autonomy. - Danger of a self-serving proposal if no diversity. - Composition on review teams is political issue and changes every time. - We have a problem attracting diversity. - Diversity requirement may be constraining. - Group proposal to consider Board consideration of recommendations - Flexibility on some reviews is OK to be considered. - Relationship between GAC and effectiveness - promising approach to build on. Conclusion: - Review system is continuous improvement of ICANN based on bottom-up process. List of reviews not helpful - have to focus. - Consensus call for proposed increased transparency features - No closure on community selection. - No agreement on balance opposing best people against diversity. - Incorporating reviews is one of our recommendations.

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FW: Notes-Recordings-Transcript links for CCWG ACCT F2F Day 2 Session 2 | 24 March
by Brenda Brewer March 24, 2015

March 24, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Face to Face DAY 2 Session 2 on 23 March are available at: https://community.icann.org/pages/viewpage.action?pageId=52893814 These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. Action Items ACTION ITEM: Go through GAC input and compare that to what is in mission value. ACTION ITEM - To capture language on IRP immunity issue Notes These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. Golden Bylaw - This provision in Bylaws may not be changed under any circumstances. Discussed golden bylaw provisions that would require a very high standard for modification which has to be adopted by Board (supermajority) following certain procedures. Discussed golden bylaw for mission statement or core values using veto include lower standard to permit change in articulation of core values. Use of veto approval process coming out of community empowerment. Options envisioned include: Provision subject to legal intricacies that may not be changed; provision of bylaw may not be changed unless publication of proposal followed by detailed description of how it fits in the mission statement, followed by vote of community or vote of SO/ACs, followed by public comment period. - Clarity and predictability needed on number of times you could propose bylaws change. - You cannot change bylaw without affirmation approval of community nor without precise procedural requirements. Community has a right to veto a proposed change. - There is agreement we do need provision in Bylaws. - We would follow advice not to make it unchangeable but set high bars to get it changed. Flexibility is needed. - Threshold requires discussion. - Get clarity on what items we think should get special protection: i.e. mission core values - is there objection to giving protection to mission and core values? - Current bylaws contain too much substance - split operational from it. Part of bylaws could be golden. -> Concerns regarding suggestion to condense bylaws i.e. not within remit. - Suggestion to have different levels of golden - work on thresholds is needed. - Limiting scope is platinum - protecting mission is priority. Protecting core acccoutability measures, protecting ability to implement WS2 work. - Careful with painting golden - every single change of bylaw will have blocking possibility by community. We will have to come up with blocking of ordinary changes and approval process for golden bylaw changes. - Golden bylaw is protection against global corporate reach. The following are essential: 1) writing in stone mission; 2) writing in stone IRP. It is an absolute minimum. - In Bylaws there should be a power to veto a Bylaw change - this power should be protected so that can only be changed with approval of community. - Two types of Bylaws: 1) golden Bylaw ; 2) enshrined Bylaw - affirmative agreement to a change: i..e he binding independent review process, the Board spill mechanism, the mission. - Don't understand mission closed to interaction with ecosystem. - TIme lag from time Bylaw approved by Board and time community can react. - Combination of different community empowerment. - Suggestion to incorporate: any changes cannot be implemented until community has had opportunity to veto. - Reference set of principles which ICANN should operate according to, identify layers of rules. ACTION ITEM: Go through GAC input and compare that to what is in mission value. - Future role of IRP and extent to which one could have situation where panels decisions have a de facto impact on values and mission clauses, to what extent is work being done to mitigate that risk and eliminate it? IRP immunity issue needs to be addressed. > 1st safeguard: decision made by IRP are published - transparency on how mission is construed - if there are defects identified this is call for rectification - Would welcome language on how to reflect specific provisions in Bylaws. -> It could also be baked in IRP that can go "so far" ACTION ITEM - To capture language on IRP immunity issue -Mission is only golden if core values are golden too Conclusion: We do want golden bylaws - mission, IRP, community power to spill Board and veto provisions incl. procedural aspect that Bylaws changes should not be implemented before Community has had a chance to veto it. -- Community Empowerment Thomas Rickert walked the group through proposed comparative table: 5 community powers for which findings of day 1 need to be confirmed and a discussion to be commenced on populating other cells. Table has genesis on templates that were prepared. - Who gets voting: we had talked about notion of certain number of entire group - that means someone could opt-out but vote would not count as positive vote. - Every SO/Ac has option to opt- out every time. - If not participate, they could also provide advice. Don't see why vote could not participate - Discussion needed on what abstention means. - Is there objection to testing establishment of community council? - Opt-out should not an option. It is too important. Abstention should not take place - all should have opinion. - If start with internal mechanism - spill the Board - Would be extraordinary if one SO/AC decided not to take part in process. What is the status of them not voting? Absention from GAC is neutrality. Work out how voting would occur and what associated thresholds are. Opt-out does not make any sense. - There is consensus around issues - we are talking about moving parts. While discussion is very useful, we could make more progress and channel it into coherent options - Agreement opt-out should not be option. - Critical to establish common elements before going into detail of voting mechanisms. More general principles are needed. - Key to this is that we should use discussion to help Jordan and Team get as much information as they can - clarity needed around consensus, directed voting. - Minimum number of voters is needed. - Fractional votes (notably in GNSO) that need to be factored in.

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Notes-Recordings-Transcript links for CCWG ACCT F2F Day 2 Session 3 | 24 March
by Brenda Brewer March 24, 2015

March 24, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Face to Face DAY 2 Session 3 on 24 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893816 These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. Action Items Acton: for WP1 to identify specific scenarios Notes These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. 14:00-16:00 EET - 12:00-14:00 UTC - Session 3 Community Mechanisms (cont.) (graphic, overview of community powers) 1st column - look. Rooted in the work of WP1. Presentation and then discussion item by item and identify where there isn't consensus. to hope guide WP1 on where more work needs to be done. Threshold to initiative. Diversity requirements, will receive independent advice and consider regional and gender diversity Directed vote seems to have consensus Only once on the same ground: if a complaint fails, how/when can the compliant be lodged again Had also discussed mandated votes and a mandated discussion phase. Dependent contractor: effectively an employee of the organization Thinking behind varied voting powers? That we would differentiate in terms of representation based on the advisory nature of the AC and the direct role of the SO. Is there value without legal advice, the working method of the meeting is to work on the basis of what we know. And if legal advice suggested a better mechanisms then the group would revert to that. Relative voting power. See no rationale for saying the AC are less blessed than the SO - comment supported by other commentors. Correction: lower vote for SSAC as appointed by the Board, and RSAC as representatives of the Root Server operators. ALAC and GAC 5, the SO have vast communities behind them. How can these groups represent themselves in a diverse ways? Ensuring regional balance and inclusion. Regarding spilling the board, it is at least equal to policy recommendations where its required for the SO/AC to reach consensus. Should at least be the same for something as important to the organization. Removing the board, is not as important as consensus policy which affects millions of users. Directed voting. Sense yesterday that there should be directed vote for spoiling the board. Though argument for each SO/AC to decide for themselves. Challenge is how to enable the split. Effect of directed vote can be to hid the opinions of a wide range of people within a SO/AC. Is it the work of the CCWG's job to decide on details or the high level process. May not sign off on the unless there is an opportunity to ensure some detail is included. Creating accountability for the whole organization. Opinion: when board members are appointed they are appointed with responsibilities to the whole organization, which is why directed votes are not appropriate, and why a specific organization should be created for these decisions making roles. This not a complete list of community powers 15 or more powers in WP1's inventory. This will be the basis for the next steps in WP1. Do have concerns with directed/non directed, split votes/unanimous votes, but otherwise quite broad agreement. Now seem to know who the groups are who constitutes the community. WP1 task is to integrate the information they have. Acton: for WP1 to identify specific scenarios Slide should provide a single page to at a glance see what community powers are available. Recap and progress Confidence or doubt in our shared opinions Stress tests have highlighted where we need to act. The revised mission, golden bylaws, budget and strategic plan challenge, independent review process: does ethos architecture fit the overall expectation of the group? Switch to strategic approach. Linkage between diversity, participation, plurality and accountability. This bottom-up nature of ICANN distinguishes it from other international organizations. Importance of the existing community's accountability to those will join in the near future. Concern that if strong representation can't be found within the existing communities then it is time to pause for thought, look in the mirror If there's a group in ICANN that works on outreach, then they need to get busy. And express what is being done in a simple way. How to ensure WS2 mechanisms are implement once the levers the transition are passed. Anyway to internationalize the AoC. Anticipate stakeholders will expect mechanisms beyond WS1 recommendations, what is in WS2 and how those mechanisms will be protected and not swept under the carpet. An intention of WP1 is to deliver mechanisms that will guarantee WS2 mechanisms. Although this is not yet done by the group. Diversity important, but community accountability, is not just diversity alone. The community council or whatever it is: 1 it must communicate to the wider community, that is transparent. There is consultation: how did members consult and will consult back: that is community accountability. Telling that around this area they is little popular resistance, no protest in the street. Make sure WS2 are not sidelined (dealt with tomorrow, and then tomorrow) . WA1 did look at WWS1 and WS2 implementation. Where the implementation detail is known, possible to compile in a list and perhaps at transition pass to the bad to promise to implement these well described items. Harder will be the less defined items. They might be driven by a GNSO or ccNSO pdp. But many are administrative that might require bylaws changes. May need some bottom up generation of bylaws changes, WS1 should empower the community to pursue and implement WS2 after the transition. With difficulty in setting timelines for implementation. Still contingent on legal advice. Ho Govt will participate to community council, How to contribute in the community powers. The role of govt will need to adjust to the new world. Positive sense from govt, though like everyone concerned about timelines. Progress made noted by negotiators in New York. Suggestion of interim bylaw might address WS2. A list of mechanisms, mandate the process for the community to develop recommendations, and requires the Board to act. Precedent to doing this (ccNSO creation etc). Further options proposed for work stream 2, from consideration as part of an AoC or AoC like review (although noted concern about the creation of even more working groups. Outreach will become more active once our proposals are concrete. END

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Notes-Recordings-Transcript links for CCWG ACCT F2F Day 2 Session 4 | 24 March
by Brenda Brewer March 24, 2015

March 24, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Face to Face DAY 2 Session 4 on 23 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893818 <https://community.icann.org/pages/viewpage.action?pageId=52893818%20> These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript. Action Items: none noted Notes CCWG Istanbul Meeting - 23-24 March 2015 NOTES: Day 2 Session 4 About next steps Important for our group For the CWG which has dependencies from work. For community and Board which has expectations. Are we ready for public comment April 6 * Methodology: is known * Definitions and Scoping: from the problem statement * Inventory of existing mechanisms * Input gathered on community empowerment mechanisms * Contentions / contingency: * Contingency list and the stress test Extremely good progress, though dependent on our mechanisms, but thus is an agile set up and ready for his stage * Accountability mechanisms: provide clarity on WS2 items and how these will be addressed. * Implementation plan and timeline. Accountability architecture. Which can be graphically represented. the Work of WP2. The golden bylaw. The independent review, which is a key outcome. Community empowerment mechanisms AoC review and writing the appropriate/necessary features to the bylaws. Are we ready at a higher level for public comment, with entering into specific recommendations for text changes, eg. bylaws language. Suggestion: focus on mechanisms and structures. Not asserting the that the Community empowerment mechanisms are the complete list. A discussion needed on what we are defining as WS1 and what WS2 Comment that the timeline will be pushed out and not the only call for public comment. How do we represent the community, which would be incorporated in community empowerment. Concern at the complexity of the issues proposed: what needs to be done, and what ensures that the rest of the mechanisms can be implemented later. Might check what needs to be done through stress tests, if one mechanism is missing how does that affect our contingencies and mitigation. Things that have to be done before the IANA services contract ends, rather than things that must be done to enable the transition. Look at stress tests and keep as narrow as possible. Will CCWG send a message particularly to CWG if it looks to be backing off from some powers, when the CWG has been asking for clarity of what the CCWG will propose. These are enablers for the CWG's work Don't move to WS2 because of complexity, but recognize that more time is needed if more time is needed. The CCWG charter's definition of WS1 includes the notion of committed to if the implementation of mechanism is too complex. Agreement from the group to go for public comment with the list in section 7, i.e. Description of overall accountability architecture Recommendations : 1. Revised mission, commitments & core values 2. "Golden" / entrenched Bylaws 3. Independent Review Panel enhancements 4. Community empowerment : € a) Challenge Budget / strategy € b) Challenge Bylaw change € c) Approve Golden / entrenched Bylaw change € d) Dismissal of the Board 5. AoC reviews transcribed into the Bylaws Legal input will feed into each proposal. If there are legal constraints, but not a specific section Public comment: Questions on the recommendations, with free text comment for each item. Use the public comment review tool, facilitating the analysis of comments to make the analysis available as soon possible after comment closes. Or, asking generic questions to highlight the underlying assumptions we are making. Questions simple but not simplistic, need to get a sense from the answers of the tradeoffs we are facing. Questions asking if we are on the right track Questions asking to choose between options (A or B). A narrative section explaining what we are doing to ensure more informed answers. Our proposals are a package, they need to presented together And the questions need to be structured together reflecting the context of the whole package. Timeline: April 6 for 30 days. Complex issue to finalize is the community mechanism. Need time, even if not group consensus but a series of scenario, how much time? Time to discuss with Wp1 How should it look and how to consolidate the discussion of the past two days and decide where there is consensus. Is there value in going for public comment without legal advice? Consider meetings of CCWG on 7 and 14 April, to allow public comment Delivery of legal advice, initial advice by 27 March. Which will be followed by iterations. Second firm to provide initial advice next week, with final advice in 2-3 weeks. Which would push acceptance by the chartering organizations very late. Legal advice before public comment, suggested that the group move forward with proposals in anticipation of the legal advice. Prioritize legal advice and option. The public comment document will be translated, as priority. CWG lessons - don't let the deadline force you to send half-backed comment. And get feedback as quickly as possible. Take the general principles, the same for each mechanisms. Legal advice may dictate what is possible. Seeking public comment on the proposed mechanisms, and legal advice on the comments received may be the way forward. Note ICANN document publication guidelines, to be made available 15 days before an ICANN meeting. How long will the bylaw revision process take within the Board? Changes will need to public comment. Assume relatively easy to draft, if assume legal and CCWG recommendations line up. Bylaws revisions may wait until after the NTIA decision, until NTIA has indicated that those changes satisfy it's concerns. An implementation plan: NTIA approval is T0, and implementation is rolled out sequentially. Key decision recommendations for WS1 by 20 April. Goal turn around for a second comment by the time of ICANN#53 Buenos Aires. A scenario not requiring an additional face to face meeting. If there is disagreement with the final recommendations then there would be a consensus call, as specified in the charter, with an opportunity for minority views to accompany the proposal. Items for consideration of WS2 - add to the table of contents of the report, with the group to discuss. Concern, lack of detail may give CWG the opportunity to say that they can't act until they hear from CCWG. CCWG has agreed there will be a Board spill, the CCWG delay is in the detail of how to implement that . Announcement can note CCWG will have proposal discussed by SO and AC and will have a public comment before sending to the chartering organizations. 20 April is out, but will agree and publish a definitive date. Co-chair statement: it will include information about the package, the timeline as discussed, Other elements? We know elements will be there, but not exactly what they will look like. Thank you colleagues. END

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Meeting with CCWG Advisors
by Arun Sukumar March 24, 2015

March 24, 2015

Valerie D'Costa, an advisor to the CCWG, raised a couple of interesting and important questions on process and substance. I hope this is a faithful reproduction. On process: 1. What should be the role of advisors? Should they offer advice on the basis of unanimity or "rough consensus", or just provide input independently? 2. Should advisors restrict their role to responding to questions that have been flagged by the CCWG and routed through the chairs? Or should they/ can they flag issues they feel are important - weighed from their expertise. On substance: 1. How is the accountability process taking stock of the evolving "global internet community", given that it is going to be driven by numbers from the developing world? 2. Taking off from Q1, is the CCWG evaluating the future capacity of ICANN to be truly representative in the years to come? arun -- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272

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