Hello all,
The notes, recordings and transcripts for the CCWG ACCT Working Session
3 / ICANN 53 – 25 June will be available here:
A copy of the notes and action items may be found below.
Thank you
Best regards,
Kim
Notes
CCWG-Accountability Working Session 3 -- 25 June 2015
1. Welcome, SoI, Roll Call
2. Discussion of refined accountability mechanism
3. Responding to NTIA letter
4. Concluding remarks
Intense discussion yesterday, trying to recap this and the proposals on
the table for us to consider.
XPLANE have a visualization of yesterday's and last Friday's discussion.
Discussion around requirements: the CWG, the budgets issues, the Board,
about openness and the ability to adjust as the community evolves. And
the notion of leverage if needs be.
Concerns - esp to involve the courts as little as possible. While
retaining our community powers. But we had problems.
Stemming from there statutory rights of members and derivative actions.
Legal complexities and formalities. And concern of capture by a SO/AC
that obtained legal personhood first that might then capture ICANN.
Community powers should go in the bylaws. We seem to have agreement on
this. But how to actualize them. But there are even more rights that are
available through statutory rights, that come with the members model. See
the issues under the member model are complex, and some we wanted and some
we didn't have on our radar and need some to way to limit those powers.
Status quo. Work on the assumption we will keep the status quo, and that
the community can exercise their powers based on the status quo. But,
how, if a need for it, do we get from the status quo, to a different model
with more powers.
So where do we go in the hybrid model.
Some consider that the dismissal of the board would be a sufficient
remedy. Interventions yesterday, about budget issues for the IANA
function being enshrined in the bylaws removes one of the weaknesses of
the designator model. So we may have an empowered designator model.
The model doesn't have all the nuances of the earlier designs. The
graphics show a Community "power bar". Giving the designators the
possibility to remove their director, and the collective ability to recall
the board. Add the proposal to enshrine the IANA budget.
If we need to go to court to have the board honor an IRP, then the
relationship would have soured so much to reach that point they would have
left.
With the power bar approach, we don't have problems with derivative
actions, no risk of capture. As we move from the voluntary model to the
designator, the power can only be invoked by more than one SO and AC.
Email from the RIR community hadn't expressed preference for any model,
they believe we need to reach resolution as soon as possible and simply.
Hear concern about enforceability. Taking a matter before a court is an
extreme situation. Is this small possibility worth delaying the
transition, and creating complexity and misunderstanding?
Makes us recommend and push for the designator model. And consistent with
the model just presented. At a phase in our WG where we must move
forward, so ask what can be added to or removed. Enhance the proposal.
First question for the meeting: does this describe what was presented
yesterday - the table describes the community powers developed by WP1, but
WP2 an important part of our work and WP2 needs legal remedies for its
recommendations, for example, what could be done if IRP not implemented,
this should be part of the analysis.
Having heard that removal of the board, the nuclear option, as the only
power, is unwise.
Comments:
Clarity. If the member model is off the table then say so. What is meant
by hybrid? May need to re-think the thresholds, give clarity about
participation of SO/AC that do not appoint a director
The status quo, which is the working model, with transformation for
designator model when some event triggers the need for greater authority.
Statutory legal rights are needed. For example access to documents.
Derivative actions: the right of members to sue ICANN to remedy a rogue
board. Some have concerns with other statutory rights, some are
supportive.
The presentation gives a stark view of the member model and rosey view of
designator. And the ultimate backstop of the designator model is still
the courts.
Hybrid. Staring point is what we have now and how to improve on this, and
we are along the road to do that with IRP and reconsideration. There are
already proposals before the board for document transparency from the ATRT
process. Removal of the board is not so nuclear. And concern about
capture is worse with member than designator.
Statement from Counsel, June 16, says they are unsure if the designator
needs to be legal persons, and need clarity on this.
The good thing about the model is that the SO/AC are exercising the
powers, until some eventually that necessitates legal measures.
The second proposal should have the consensus of the group. NTIA
requirement that must represent consensus of the community. All the
models are good. But learning from the CWG approach won't work, they had
more discussion of the issues first.
Pragmatic. Take into account dependencies of CWG and make every effort
before Paris to address them. e.g the budget of PTI. What else is
absolutely necessary. Move the rest to WS2.
And this approach is what we are trying to do. We are focusing on
requirements and towards a consensus proposal.
The member model is incomplete as a multi-stakeholder model if GAC cannot
participate. We mention a rogue board, what about other rogue community
members? Need to work toward a balanced model.
Both models would work. And satisfy our requirements. But when I listen
to the community I don't think the member model will be accepted. I think
the designator model has a high chance of getting accepted. Now it's time
to drop our personal ideas and listen to each-other. Agree with Avri that
dismissing the board is not the end of the world. May never need to use
the power of removing the board.
Not acceptable to interrupt the speakers. Not acceptable to extend
meetings on short notice. Not acceptable to tell members they are off
topic.
There was a basic consensus around the community powers. So now concerned
that statutory legal rights as something we want, when they have not been
discussed internally or with the community.
As someone who has sought legal enforceability, recognize that there are
degrees of accountability, and wish to move towards consensus.
3-4 weeks to revise our next proposal. Our powers and core values and AoC
are well developed and the same for whichever model we choose. The other
challenge is to reach agreement on authority/empowerment perhaps as a
sub-group.
Need to compromise, and not loose the window of opportunity. Use the
opportunity between now and Paris to compromise. We would like to use
this comparison, further refine it. Looking for external counsel for
support on this.
SWAT analysis - define the model, looks at strengths and weaknesses and
also creates opportunities and threats.
The models need to be fleshed out to have a fully informed discussion in
Paris. And we all need to all work on grasping the subtleties between the
models. And we will ask legal counsel to better flesh this out.
We have drafting to do. We have substantial discussion to have about
topics raised in public comment. Discussions needed of WS1 and WS2. And
begin organizing this on our call next Tuesday.
We have sufficient progress so we can go for legal advice. We have made
good progress since arriving in BA.
Responding to NTIA letter
Letter from Larry Strickling asking about the timeline of CCWG work,
noting unlikely to complete work before the end date of the NTIA/ICANN
IANA functions contract. Also asked the ICG chairs. There are extension
options available.
Our timeline is a second draft for 2nd public comment of 40 days. A
review of comments and if no major changes then will ask the Chartering
organizations to review at the Dublin meeting. That is the goal.
How much time do we need to finalize our proposals, and have them ready
for implementation. We hear the other groups are aiming for
June/September next year.
We have been asked to factor in community accountability. Jan our Advisor
has warned us on this. So work actively on this going forward.
At least need to say how it will be addressed in WS2. Perhaps need to
create a WP3 to begin thinking about this.
In the reply - 2 assumptions, there's no magic to the date as NTIA and
ICANN can mutually cancel. And that US Congress has kept away from
arbitrary dates and requirements. A relatively short period of time after
completed or work for the transition to go forward.
Discretion, but within limits, L Strickling told us he needs 4 months, and
don't slip by more than a year. Need to move the bar on stakeholder
accountability, and also recall the recommendation about human rights in
the bylaws.
ICG is debating, and some request that they don't send until coordinated
with the CCWG.
We have to finalize our proposal to get it to SO/AC charter organization
for Dublin.
We will be crucified if we are not ready in Dublin.
So let's not add new issues like community accountability.
The CRISP team responsible for the numbers part of the ICG proposal is
targeting Implementation is September of this year, not next year.
Develop the models so we can have meaningful discussion in Paris. New
topics to discuss, inc community accountability, they are critical, and we
need to consider. We need volunteers to step up on this. WP1 and WP2 will
have a great deal of work in the coming weeks.
Co-chairs will coordinate response to NTIA
Acknowledge Bruce's comments on the bylaws drafting. And will look at
blocks that are ready, and the AoC incorporation will be first of these we
think.
Reconvene as early as Tuesday 30 June for CCWG call at 06:00 UTC
We are making progress in surfacing underlying concerns.
AoB
Fiona - About the AoC reviews public comment. Need to move forward in
synchronize with other work. In this review process they are looking at
the future of reviews, the schedule and structure of them, both the
organizational reviews of the bylaws and also the AoC reviews. Bring them
in to our discussions about review mechanisms. Synchronize their
contribution with the CCWG.
Staff are cognizant of overlap of work and we are coordinating and the are
following the CCWG work. A comment from from the CCWG to the review
process would be helpful.
Thank you all.