Hi Steve's and CCWG,


I followed the conversations around the incorporation of the AoC reviews into the bylaws on the CCWG webinar lat night with a lot of interest. 


I believe that there is an extremely interesting discussion to be had as to the appropriateness and scope of the WHOIS review in particular, as a strong privacy advocate I think that the review may not go far enough and I would have loved to have beefed up to review as part of the CCWG's work along with many other fixes that I could envision within the AoC that I would like to see, but on this matter its important that we remember the scope of the CCWG and the scope of the incorporation of the AoC effort.


The incorporation of the AoCs came largely out of the work on Stress Test 14 which among its conclusions stated 

  1.   Another proposed measure is to import Affirmation of Commitments provisions into the ICANN Bylaws, and dispense with the bilateral Affirmation of Commitments with NTIA. Bylaws would be amended to include Affirmation of Commitments 3, 4, 7, and 8, plus the 4 periodic reviews required in paragraph 9.


Currently located in the 2nd Draft Proposal as paragraph 882 on page 107. The Stress Test working party has been working on these key parts of the proposal since March, allowing plenty of time for input to be gathered from every stakeholder with regards to one of the key methods by which we as the CCWG are judging our own work.

From my own memory, but I'd ask Steve DelBianco or CLO to correct me, I don't recall any consensus push within the ST-WP to fundamentally assess the content of the AoC or in particular the incorporation of the AoC reviews and indeed the wording of the conclusion to Stress Test 14 reflects that in its choice of "import" as its active verb when referring to the AoC incorporation effort. We tread a fine line here in the CCWG between doing what is necessary in our opinion to enhance the accountability of ICANN and enacting additional changes via the CCWG process.

Its my opinion that changing the substantive content of the AoC reviews during their incorporation into the bylaws would undermine the fragile balance that the CCWG has strove to achieve throughout its work. Do I think that the WHOIS review needs to be addressed, most certainly yes in a major manner, but the CCWG is a wholly inappropriate venue for that change to be addressed. Changes to the AoC as they stand now are within the control of the ICANN board and the NTIA to change, if indeed we have a current AoC affirmation that is "wrong and destructive" I would suggest that the board needs to approach both the NTIA and the community with a suggested change, this is within the ability of the board to suggest and for the NTIA to agree to as per the current AoC text below

            11. The DOC enters into this Affirmation of Commitments pursuant to its authority under 15 U.S.C. 1512 and 47 U.S.C. 902. ICANN commits to this Affirmation according to its Articles of Incorporation and its Bylaws. This agreement will become effective October 1, 2009. The agreement is intended to be long-standing, but may be amended at any time by mutual consent of the parties. Any party may terminate this Affirmation of Commitments by providing 120 days written notice to the other party    

Or as an alternative once the reviews are incorporated into the bylaws the board of the community or both working together can bring a bylaws amendment to change the text of the WHOIS review bylaw. We are not baking in the reviews to never be changed, we are bringing across a core set of accountability measures without substantial changes to reflect their current standing, I hope that everyone understands that the CCWG is not here to fix every aspect of ICANN, we are here to enhance its accountability, lets be cognisant of that in our work as we come to this critical time.

Sorry for a wall of text but I think that this is an important issue for the community to address and for the board to understand the reasoning for the communities stance on this. 

-James

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