Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #80 - 26 January will be available here: https://community.icann.org/x/5wJ1Aw A copy of the notes may be found below. Thank you. Kind regards, Brenda 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. 1. Welcome, roll call, SoI (5 min) TR Jordan Carter, Cheryl Langdon-Orr, Kavouss Arasteh and Seun Ojedeji audio only. Have returned to original agenda order. 2. Update on Chartering Organizations' input (20 min) MW <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00...> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00... MW: gNSO and GAC have provided their input on the third draft proposal. There are no formal objections in these comments. There are qualified supports and conditions which are consistent with the minority views expressed in the third draft as well as the comments in the consultation. Will not address recommendations that are generally agreed to. Rec. 1 - No decision from the GAC yet - gNSO some objections regarding the balance of SO and ACs and a requirement for additional transparency. Rec 2 ok Rec 3 - gNSO clarify process to update articles of inc. Rec 4 - gNSO fix escalation time frames and indemnification for removing a director Rec. 5 - no interference with GAC being able to provide advice to ICANN Board + contract enforcement - Cont. Enf. required by gNSO. Rec 6 - nothing from GAC, gNSO some support for WS2. Rec 7 , 8 ok rec 9 gNSO - Limited support with some opposition and potentially divergent qualifications - reviews in collaboration with SO ACs (GAC, gNSO), GAC responsible to the citizens of their countries. Rec 10 - Limited support with some opposition Rec 11 - no consensus or objection from the GAC. gNSO there is broad opposition as currently written. Rec 12 - GAC requires clear time frame. We should write to all CO's to thank them for their input and support and inform them of next steps. AGreenberg - will be documenting the 5 specifics of the current ALAC positions and posting on list. MW: No other updates - closes this item 3. Update on Board removal liability mitigation (20 min) TR RoemaryFei - update from lawyers discussion - Board still strongly opposes waivers. CCWG lawyers will provide language to CCWG for consideration on this. Idemnification - some support by Board would support for language in the rationale subject to limitations. Jones Day will draft this language. AGreenberg - Indemnification of rationale only is too limited - what about the community forum. Who is being indemnified - individuals or councils? RosemaryFei - Good point - tying it to the rationale would cover that language made by anyone. Other language is not covered. Chris Disspain: Alan, perhaps you could say what you think it should cover? Chris Disspain: content AGreenberg - A real wide ranging discussion in the community forum will cover many topics beyond the rationale, as such this is overly limited. Chris Disspain: so if it covered the community forum discussion and the rationale? Chris Disspain: would that be OK Agreenberg - Probably if it covers councils. GShatan - Sympathetic to AG, Need to limit it by subject matter. Rationale and items related to presenting it should be ok. Want to avoid the chilling effect. AGreenberg - not just slander, TR - What was presented as being offered by the Board seems insufficient. What is needed is compromise language that captures those eligible as well as subject as discussed in the comments. We would need such language from Jones Day by the end of the week (confirmed by SE). If the compromise language does not meet the requirements of the COs then we would need to proceed with what is required by the COs. TR - this closes this topic. 4. Rec 6 - Human Rights - Third reading (45 min) MW Short set of slides of the state of play <https://community.icann.org/pages/viewpage.action?pageId=58000103> https://community.icann.org/pages/viewpage.action?pageId=58000103 Trying to address all concerns the CCWG counsel has proposed language to attempt to avoid the unintended consequences. We would like to test today if this proposed language would address the concerns and still be acceptable. Comments? TTropina - supports text as a middle solution. MKummer - Board has had a thorough discussion on this. I can only repeat what I said last time. We are committed to have HR in ICANN but have not moved from the comments on third draft - wait for WS2 to complete the framework before inclusion in the Bylaws. Understand the concerns wrt it not advancing in WS2. Willing to include in the Bylaws a requirement in <http://bylaws.to/> bylaws.to do work on HR. Chris Disspain: the key words from what Markus said: Board proposes that including in the Bylaws a requirement for ICANN to address the human rights issue, as well as a requirement to consider - after a framework is concluded - how that should be referenced in the Bylaws. The Board therefore proposes the following: In the Bylaws text referencing WS2, language should be included that specifically identifies that a recommended framework on human rights within ICANN is expected to be part of the WS2 effort. Further, the Bylaws on WS2 should specify that If the cross-community group developing the framework also makes a consensus recommendation on whether and how that framework can be reflected in the ICANN Bylaws, the ICANN Board must consider that recommendation according to the process defined for considering those continuous improvement recommendations MW - There has been significant work to try and address the Board issues - but unclear on what remains objectionable? MKummer - the crux is the Board does not accept there be a ref. to HR before documenting what these are without incurring additional risk. MW - Difficult to understand what Board concern has not been addressed with the proposed CCWG text. NTenOever - this is not a compromise and ignores work of the community. TTropina - current CCWG makes sense. Agreenberg - should the CCWG go ahead there are some comments. Need examples from the Board as to what the possible risks are. MW - This has been asked for and never provided. Language will be checked by lawyers for other points raised by AG. KArastaeh - need to accept resolution as is or Board's new proposal. CDispain - (repeated Board position) LUrech (GAC - Switzerland) - supports maintaining this recommendation. We see no risk or unintended consequences. Not approving this would also send a very negative message in the overall community. GShatan- Remarks from the Board actually confirm that the proposed text is truly a compromise. No one is happy with this - is a good sign that we have reached the compromise. MW - The direction of discussion is clear. Much discomfort from the Board but that is it. The CCWG text seems to be the consensus position. If the Board comes up with a bylaw statement that convinces the community on its merit it could be included otherwise we should move with the current language. HGregory - We have heard the Board concerns and addressed them. Have been trying to understand the concerns of the Board since then but are struggling as there have been no concrete examples. MW - Action item is for staff and lawyers to move to finalizing recommendation consistent with proposal discussed and comments expressed during the session -(Alan). No further discussion planned unless, as suggested by Kavouss, the Board would come back with a concrete action or resolution that would convince the group to proceed otherwise. MW - Item closed. 5. Rec 5 - Mission Statement - Fourth reading (45 min) MW <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00...> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00... & <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00...> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00... * * AOC language * Root servers and numbers language * Contract enforcement * Grandfathering * where feasible and appropriate language BBurr - presentation of updated Recommendation document: * * ALAC request on WHERE FEASIBLE AND APPROPRIATE. There were two mentions of these in the original document, both were removed and one added back after Dublin. * Awaiting Board input on RSSAC language for the mission. * Lively discussion on ASO language. Their latest submission to be discussed today. Issue around regulation vs ICANN. Vast majority of commenters in third draft were supportive. Board suggested that this was not appropriate for a mission and should be moved to notes for drafters. CCWG counsel supported. * Enforcement PICs * CCWG legal raised number of questions regarding grandfathering? ALAC request on WHERE FEASIBLE AND APPROPRIATE. Agreed to reinsert in core value 2 but not in 4. ALAC continues to argue for its re-introduction. KArasteh - Need to answer if feasible and appropriate. Agreenberg - Are simply requesting what was there stay there. The example in the RSTEP process - are there competitive issues with this change. We evaluate this. Without this clause we may not be able to ask the question. Need this to be a proper custodian of the namespace. KAresteah - We cannot grandfather elements which we do not have. BBurr - pointing to RSTEP process points to the FACT that ICANN cannot make any determination on competition - if there are concerns they are referred to the appropriate govts. This is not an issue. However, any language in the Bylaws the authority does not rely on market is an issue. AGreenberg - Agrees with the words of BB - but this is not what is written. GShatan - language promotes a laisser-faire approach - let the market do its thing. This is one way to look at this. We are confusing a competitive environment and an anti-trust environment. SBacholet - alternate options in line with AG BBurr - ICANN does not have the authority or tools/skillset. 10 minute break SDelBianco - does this say the market can be depended on to manage this or does it give ICANN the right to interfere into fixing it. GShatan - does not give ICANN carte blanche- the market gets first crack, if the market fails then ICANN could interfere. Conclusion - TR - since there is an objection from a chartering org. on this - let us try to get closer to a compromise on the list which we will consider the next time we consider this point. ASO Language BBurr - issues about referencing the MOU. Izumi has proposed alternate language today. There are essentially two different constructions IOkutani - explanation of proposed text Bruce Tonkin: Changes make sense Izumi. I have sent to the Board list. Chris Disspain: Board needs to look at this wording and comment asap Conclusion - TR - given there are no objections let us assume that IO proposed language is the new reference text. Grandfathering BBurr - Grandfathering language - Issue - can contracts with PICS in them be renewed without change - can new contracts contain PICs going forward. Are there any objections to making Pics renewable and new agreements can include these. Agreenberg - supports continuing PICs and including in the not yet signed. GShatan - object but not on the basis that they should be renewed - it is unclear they would go away. We are confusing the issue. Grandfathering is cheating, CDispain - Board has concerns about grandfathering. Also want to make certain we retain the power to contract and enforce which includes current PICs. Becky Burr: Chris that is already in the language. Grandfathering language says FOR THE AVOIDANCE OF DOUBT to drafters. This should apply to all TLDs from this current round. MHutty - We are not changing ICANN's mission, simply clarifying it. Some of the concerns are that it signed some PICs which are not within in mission and so could be challenged with the new version. Grandfathering would fix this to avoid disruption of the environment. Conclusion - TR - we are close to a compromise - we will ask BB to update the document taking into account the discussions today and refine this on the list so this can be finalized on the next call Greg Shatan: How about this; "To the extent that PICs may be out of scope, those PICs are grandfathered in. MHutty - want to preserve the APPROVAL queue. Contract Enforcement BBurr - Contract enforcement - There is general agreement that ICANN has the power to enter into contracts and enforce these in the service of its mission. The ICANN Board objects to the Regulator language - and the Board proposed that this language moved to the drafting notes to be taken into account/Guidance to drafters of the final Bylaws. MHutty - Guidance to do what in the Board proposal? GShatan - What is the weight between our draft Bylaws language and the Notes to drafting. If they are = then there is no isssue with the Board recommendation. If there is a difference, then there is an issue. We should clarify if there is a difference. TR - our recommendations are clear instructions to drafters. Additionally, we have an implementation oversight team to ensure we are meeting the objectives. We may work more on what we are trying to express here but this may also be done in instructions to drafters. TR - this closes this agenda item. 6. Rec 9 - AOC reviews - Second reading (15 min) SDB <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00...> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00... <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00...> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00... & <http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00...> http://mm.icann.org/pipermail/accountability-cross-community/2016-January/00... SDB - Two questions from our lawyers - Re requirement to better define diversity. Recommend no change to current. Next question same. recommendation on participation. RAbdulRahim - Board supports incorporating AOC in Bylaws. Discussion of operational standards vs inclusion in Bylaws. (see email by BTonkin for details): Board Comment - Recommendation 9: As noted in its comments on the third draft proposal, the Board supports the incorporation of the AOC reviews into the Bylaws, while noting the importance of maintaining operational standards for reviews outside of the Bylaws. While the Board agrees that operational standards should be in alignment with the provisions of the Bylaws, the Board views operational standards as a more suitable place to address multiple review-related operational items that do not belong in the Bylaws. There are a few specific areas that the Board is flagging in relation to the operational standards - a) The Board is concerned about potential constrains that may limit flexibility and effectiveness in the operational standards and that certain CCWG-Accountability recommendations may not be aligned with best practices or industry standards, including: * Fixed numbers of total review team members, as well as a fixed allocation among SO/ACs, without consideration of specific issues and required expertise for a given review. * Unlimited number of participants, in addition to the appointed review team members, potentially affecting the team's productivity. * Exact trigger points for the commencement of reviews without taking into account the Community bandwidth, or the state of pending implementation activities. b) To accommodate differing needs of reviews, the Board recommends leaving the number of review team members to the selectors of a specific review team, as to prescribing a specific formula for composition. This could leave to the selectors the flexibility, for example, to include more members from a specific SO or AC that is more impacted by a specific review, without hardcoding numbers into the Bylaws that might need to be changed later. c) The Board is concerned with the CCWG-Accountability's recommendations on determinations of how consensus is applied. Imposing Bylaws requirements on allowing participants and observers, or requiring consensus calls are other examples where trying to hardcode specific requirements for reviews now might actually develop reviews that are less efficient, more resource intensive, and detract from the responsibilities of the review teams. The Board notes that the ICANN community would benefit from a review schedule that would take into consideration community bandwidth and ICANN resources in developing a staggered or phased review schedule. These factors should determine what a workable number of concurrent reviews would be and ensure that no more than that number of reviews are scheduled at the same time. Finally, the Board would like to highlight the work that has been underway within ICANN towards improving review effectiveness so that the CCWG and the community may factor this work in the development of operational standards. Work has been underway on the development of Operational Standards since last year, originating from ATRT2 recommendation 11 to improve effectiveness of Reviews together with Board Resolution 2015.07.28.14. In July 2015, after factoring public comments, the Board endorsed the proposed process and operational improvements designed to simplify and increase the effectiveness of Reviews. The Organizational Effectiveness Board Committee is currently working to finalize Policies, Procedures and Guidelines for the Organizational Reviews mandated by the Bylaws. Conclusion - TR - RAR the CCWG will consider this Board input and we will reply to it. (SDB) there is no objection to your suggestions, please include in the next draft.TR - this closes this item. 7. Timeline & next steps (15 min) MW <http://mm.icann.org/pipermail/accountability-cross-community/attachments/201... andnextsteps-0001.pdf> http://mm.icann.org/pipermail/accountability-cross-community/attachments/201... ndnextsteps-0001.pdf Pilot test for reviewing recommendation by recommendation seems to working well. Can we get confirmation that we can keep using this process? Conclusion - MW - we will continue with this process. This concludes this item. 8. A.O.B (15 min) MW None Meeting Adjourned.