Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Plenary Meeting#11 – 11 January 2017 will be available here: https://community.icann.org/x/mZTDAw A copy of the notes may be found below. Thank you. Kind Regards, Yvette Guigneaux Multi-Stakeholder & Strategic Initiative Asst. ICANN – Internet Corporation for Assigned Names and Numbers Email: yvette.guigneaux@icann.org Cell: +1-310-460-8432 Skype: yvette.guigneaux.icann www.icann.org<http://www.icann.org> ________________________________ Notes (including relevant portions of the chat): 1. Introduction, update to SOIs, reminder on standards of behaviour Mathieu Weill: No changes to SOI. 2. Administration • Update on IRP-IOT Public Consultation (3 commenters, closes 25 January 2017) • Update on travel funding for ICANN58 and ICANN 59 • Reminder CCWG-Accountability Face to Face in Copenhagen is Friday 10 March 2017(visa reminder). · Bernard Turcotte: PCST has emailed the November report to the list. We are doing well from a budget POV. Will be happy to take questions off-line or on the list. 3. Legal Committee Update Leon Sanchez: No ongoing or new requests. Reminder to all sub-groups to look at advice received for other sub-groups as it could answer questions. Kavouss Arasteh: Reminder re Applicable Law - Footnote for FOIHR regarding Applicable Law - depending on results of Jurisdiction sub-group may cause a need to revise this in the HR - otherwise there may be contradictions. 4. Updates/Presentation from sub-groups • Guidelines for Good Faith – For Information Lori Schulman: We have tried to keep it short and sweet and could be easily used by the community. Just to be clear this is about protecting the community if they are trying to remove a director by providing indemnity - which would require good faith. ICANN Legal is reviewing. Presentation of the report. Thomas Rickert: Re first reading issue - agenda was approved by the co-chairs. Alan Greenberg: We were expecting this to be for information and a first reading at the next plenary. Thomas Rickert: Understand but we are on a tight time frame. Would suggest we call this a first reading? Robin Gross: so we aren't do 2 readings anymore, just 1? because the first one isn't final? interesting change of meaning of important words. Lori Schulman: Alan, as an FYI, I had omitted a requirement that we had discussed. I simply added it. Your point is well taken. Kavouss Arasteh: Not a first reading. Lori Schulman: I also don't consider this "ready" until we get the legal opinion. Alan Greenberg: Sub-group has not approved. Anne Aikman-Scalese (IPC): Agree with Alan on this. Robin Gross: so do I Robin Gross: Avri, it does seem like w are rushing to meet arbitrary deadlines Jordan Carter (.nz, ccTLDs): how much in advance should we hope/ask for papers? Christopher Wilkinson: At least one week, if more than ten pages Lori Schulman: I think that is an excellent question. What is appropriate notice? I did not read all of the documents either. avri doria: i think after the next first reading we may be able to decide that it is really a second reading. Anne Aikman-Scalese (IPC): Agree Thomas - legal review is not the issue. Lori Schulman: Thomas, so I am unclear as to what is decided. Thomas Rickert: Given LS has withdrawn the document this is not a first reading. Will remind the group that a legal review was often conducted after our documents were completed in WS1. • Human Rights o Second reading Niels Ten Oever: Let us go over the document. Any Comments on Within Scope... (none). Respecting (no comments) Internationalized HR (no comments) As required by Applicable Law - KA over to you. Kavouss Arasteh: Reference to Applicable Law - would like to explain this when you reach this. applicable law is part of two sub-groups Jurisdiction and HR. Suggest we include a foot note on HR (see above). Leon Sanchez: would suggest modifying Jurisdiction if needed. Milton Mueler: ICANN has no requirement to implement if not per applicable law? Milton Mueller: Niels, what if respect for an internationally recognized right is NOT "required by applicable law" - does that mean ICANN policies can ignore it? Erich Schweighofer: I would say, yes, Milton. ICANN applies international obligations as the national laws sees it. Brett Schaefer: Milton, that is my understanding for why the phrase "this Core Value does not create, and shall not be interpreted to create... " language was included. Robin Gross: We need to find an interpretation of this phrase that can put some actual teeth in it. avri doria: and ICANN is deciding to not accept any further obligation. Tatiana Tropina: It’s a balancing act. Leon Sanchez: It would be useful to get feedback from the wider community. Hence, I would suggest we continue the second reading and publish for public comment and then come back to the issue based on feedback received. Does that sound reasonable? Milton Meuler: People are concerned this will push ICANN beyond its mission but my question is IF it is IN mission is ICANN obliged to do so. Robin Gross: Free speech rights and privacy rights are generally obligations states hold (not corporations), so does this recommendation mean those rights don't apply at ICANN (since applicable law does not require them)? Tatiana Tropina: No we can't. May be for good, if you are criticising me avri doria: yes Leon, the fact that this point is an open point has been made. David McAuley (RySG): I think Kavouss raised an important point. At the end the CCWG plenary should issue a document indicating the limits of each subgroup document – some are written broadly and could be read as dealing with other subgroup matter. Greg Shatan: Mission and Core Values are two different things - Mission ICANN has to do - CV's have to be balanced between each other. Robin Gross: sounds free speech and privacy are out, then. wow. Anne Aikman-Scalese (IPC): Please note there is a basis for filing a Limited Public Interest Objection to a gTLD application based on Human Rights so that was already in the Applicant Guidebook. (comment unrelated to Milton's comment re IRP) Jorge Cancio (GAC Switzerland): I feel there is a distinction between the legal obligation (defined by applicable law) and the core value, which goes beyond just the legal obligation (ICANN not only commits not to violate HR but also commits to take them into account). Kavouss Arasteh: Agree with both LS and DM suggestions and can live with either. As to the MM question GS has done a great job explaining this. Greg Shatan: There are plenty of human rights laws that protect free speech and privacy, and not just by states. Anne Aikman-Scalese (IPC): @JOrge - I felt the same way but the ByLaw says that ICANN cannot be required to go beyond requirements of applicable law so I don't think an IRP can be based on this commitment. Tatiana Tropina: with example of the content regulation - clearly if something outside of the mission it's outside of the mission and that's what bylaw and FoE say Greg Shatan: @Jorge, the Core Value is limited by applicable law, so it does not go beyond the legal obligation. Leon Sanchez: suggest we complete the second reading so we can go to public comment using my earlier suggestion. Neils Ten Oever: Core Value does not create (no comment). Brett Schaefer: How do you resolve conflicts in applicable law given ICANN operates in multiple jurisdictions? Not expecting this to be resolved in this document but wish to know if this was discussed? Leon Sachez: lets take this offline. Robin Gross: still sounds like no change for HR at ICANN Tatiana Tropina: Greg don't scare people away :) If we look at the definition of respect - avoid violations and take into account in developing policies Greg Shatan: @Tatiana, correct; we don't need to invoke any Core Value if ICANN is operating outside its Mission. Greg Shatan: @Tatiana, true, tehre is still a positive obligation created by the Bylaw. That is the major change. Thomas Rickert, CCWG Co-chair: Please take this question offline! Tatiana Tropina: yes, thereis a major change - positive obligation Greg Shatan: Inapplicable question on applicable law? Niels Ten Oever: completes the second reading. Kavouss Arasteh: Thomas +1 David McAuley (RySG): agree with Tatiana that the new HR bylaw is an important addition Milton Mueller: positive obligation to take HR "into account"? Anne Aikman-Scalese (IPC): @Erich - at least in theory, there should be no "different applicable laws". And certainly "applicable law" does not mean pick a law that is applicable in most jurisdictions - that is not at all the meaning of the term. Tatiana Tropina: but they are transposed into the national laws anyway. David McAuley (RySG): The term applicable law is a part of the bylaw itself, not just the FOI - we cannot write it away. Robin Gross: that's what I'm saying, Tatiana, since HR like free speech and privacy only apply to states, they are irrelevant under this definition Milton Mueller: Tatiana: ICANN is the "state" for internet identifiers Erich Schweighofer: @Anne: data protection is a strong real example ... Privacy Shield etc. Brett Schaefer: Again, I would appreciate a link to the documents where this was discussed if someone can forward it to me. Thx. Tatiana Tropina: Milton, we can't make international instruments applicable to ICANN by this bylaw this is legally ridiculous to me Milton Mueller: sure, we can. as a private org, ICANN can pass a bylaw that says "we will adhere to HR" Tatiana Tropina: what we can is to create a negative obligation to avoid HR violations and a positive obligation to take HR into consideration in policy making, and limit all this with the mission so no one will use HR for content regulation or whatever Mathieu Weill, ccNSO, co-chair: @Milton: I seem to remember some debate about this is WS1 Milton Mueller: it can also pass a bylaw that says everyone who works for it must dye their hair green Tatiana Tropina: Milton, that's what is done. See about positive obligation core value. Robin Gross: ICANN wants to engage in global governance, but doesn't want any of the obligations of those who govern. Milton Mueller: ok, so you are saying it is done, not that it is "legally ridiculous" Leon Sanchez: Any objections to taking this to public comment (none) Would ask staff to move this to public comment and advise the group when it goes up. o Scope issue Leon Sanchez: Annex 6 and 12 approach WS2 Human Rights in different ways and the sub-group is asking for guidance from the plenary (see report posted by sub-group on this). Co-chairs will consider this and propose a solution to the group. Any objection to proceeding as such? (none) • Jurisdiction Questionnaire Greg Shatan: This version has changed since the last time. Review of the questions. Kavouss Arasteh: GS has done a great job and recommend we accept this delicate balance. If we open this again we will be at it for quite a while. Jordan Carter (.nz, ccTLDs): the questionnaire looks sensible to me, it would be good to get it out there and see what people think / contribute. Mathieu Weill: KA good advice thanks. I think we simply have to test if there are major objections "die in the ditch". Greg Shatan: Thank you, Kavouss. Erich Schweighofer: Well said, Kavouss. Robin Gross: We may need to add the "die in the ditch" test to the ICANN dictionary :-) Christopher Wilkinson: strong support for KA recommendation. Philip Corwin: What I observed in a WG email is that no matter how carefully we try to word a question those responding to it usually feel free to go beyond its scope in their answer. And that wording of questions is not of the same degree of importance as wording of final recommendations, so the degree of precision required is less. Alan Greenberg: I am not a participant in the group but have been following the mailing list. We do NOT want to send this back to the sub-group. Jordan Carter (.nz, ccTLDs): let's get it out there Robin Gross: Let's send it out! Keith Drazek: No objection in its current form. Philip Corwin: Stick a fork in these questions, Not only are they done, they are well done. Thomas Rickert, CCWG Co-chair: Let's put it out! Farzaneh Badii: Yes, lets send them out Mathieu Weill: no objections to publishing. Congratulations to all involved and especially GS for his persistence. • Transparency – Second reading Michael Karanicolas: (presentation of the document). Leon Sanchez: Congrats to the group for the great work. Brett Schaefer: On page 10 of the transparency report I read a reference to the IRP, “Among the most important aspects of a robust right to information system is an effective, user-friendly and timely process for appealing against refusals, redactions, breaches of timelines, and other administrative failures. Our present understanding is that these appeals will be carried out under the IRP process, currently in its final stages of development.” I saw recent discussion on the lists about how an IRP challenge would not be possible one year after the decision. Would this limitation undermine the effort to make the DIDP more robust? David McAuley (RySG): The timing of claims issue is under comment and discussion Brett and IOT has received some outside counsel advice. David McAuley (RySG): I can't speak for IOT as a group but would not be surprised by some change Christopher Wilkinson: great report and here are a few points I need to make: detail seems to go too far and not implementable - we do not want to paralyze the organization through transparency requirements. This is not meant to be against transparency but things have to be balanced. Re procurement again the report seems to go too far. formalized GAC actions? we need to remove Formalized given most interactions with ICANN staff are informal. Leon Sachez: very valuable comments but could be made in the public comment period. second readings are thumbs up or down. Robin Gross: well one of the specific transparency issues we have agreed to do was get more transparency in governments interactions with ICANN. So naturally we don't want to cut that out in another part of the document. Edward Morris: @Brett. Agree this should be an area of concern. However, how would reconsideration play into this appeals process and how would the time factor then be affected? Michael Karanicolas: Hi. Thx for that Christopher, I can respond to a couple of points quickly here Mathieu Weill, ccNSO, co-chair: @Robin: to be fair, we identified it would be further investigated. We did not test consensus on it as a requirement. The public comment will be a good test Michael Karanicolas: First - regarding open contracting and publishing competing bids. In terms of its workability - I can tell you this is done routinely in the public sector. Sebasiten Bachollet: the Ombudsman sub-group had not focused on the transparency document where there are links to the Ombudsman. We discussed these links at our last meeting and there are potential issues with the transparency recommendations which link to the Ombudsman. This goes to how to handle overlapping issues. Cheryl Langdon-Orr (CLO): thx for raising this Sebastien especially as Herb is not here today Robin Gross: Mathieu, it was a specific issue we decided in WS1 Michael Karanicolas: We cite municipal governments that do this as a matter of policy: Richmond VA is the example we listed, but it's relatively common Robin Gross: that we would work on in WS2 Mathieu Weill, ccNSO, co-chair: We decided to investigate it in WS2, I fully agree. Robin Gross: public comments overwelmingly called for more transparency on governments interactions with ICANN, no? Mathieu Weill, ccNSO, co-chair: There were several comments asking for it. I try not to use qualifiers such as "overwhelming" Brett Schaefer: @Ed, I'm not sure. That is why I asked the question. Steve DelBianco: Robin is correct. CCWG calls for "Transparency of ICANN’s interactions with governments". this is part of the mandate Robin Gross: that is my understanding as well. and the simple text of the WS1 report. Mathieu Weill, ccNSO, co-chair: It is part of the mandate, as one of our focus points Steve DelBianco: this WS2 project is supposed to say HOW to do that reporting, not to say WHETHER ICANN must report its interactions with governments Robin Gross: I know, it sounds like some want to undo that recommendation now. Brett Schaefer: Agree with Robin and Steve. Mathieu Weill, ccNSO, co-chair: This discussion is premature, we'll take it offline. Jorge Cancio (Switzerland): I feel that trying to subject any informal contacts to such level of scrutiny is quite counterproductive, is not agreed in the Marrakech consensus and is divisive Steve DelBianco: Chris is right. the WS2 Transparency group should give recommendations about which types of govt interactions should be reported, and how Kavous Arasteh: Support CW wrt FORMALIZE. Michael Karonicolas: re CW points. re documenting govt interactions. Anne Aikman-Scalese (IPC): I think it would be - in any case - wise to disclose these government interactions. If they are not disclosed and come to light later, governments that are not consulted will want to take action against DNS issues through legislation in their own States that apply to ICANN. Robin Gross: I agree, Anne. Jorge Cancio (Switzerland): I feel the word "formalized" should be at least square-bracketed Kavouss Arasteh: Jorge +1 Jordan Carter (.nz, ccTLDs): no objection from me Chris Wilson: ok to bracket Greg Shatan: Is the point that interactions that are already formalized should be transparent, or that all ICANN/GAC (or other state) interactions be formalized? Kavouss Arasteh: If we brackt it when it will be debracketed or deleted? Robin Gross: I don't see them as mutually exclusive, Greg. We can make improvements on both transparency goals. Chris Wilson: bracket = up for further discussion Anne Aikman-Scalese (IPC): I definitely think that ICANN should not be having closed meetings with regional and/or national governments without the public knowing when and why. Robin Gross: it is two different ways of achieving the same goal: transparency in govt interaction with ICANN Jorge Cancio (Switzerland): Kavouss, I prefer to delete "formalized"... Michael Karanicolas: If the sticking point is just the word "formalized", perhaps we can resolve here and publish. Jorge Cancio (Switzerland): Transparency should cover interactions with private lobbysts/interests which may have potential impact on decision-making... Leon Sanchez: Open issues brought up here should be taken to the list and we would ask the Transparency sub-group to organize a joint meeting with the Ombudsman group to iron out any remaining issues. Christopher Wilkinson: This seems to not be ready for public consultation - would need input from ICANN staff on the applicability given there is a require for too much detail. Sebastien Bachollet: need to complete properly before publishing for public comments. David McAuley: am concerned about the interactions between the sub-groups and we, plenary, need to manage this to avoid conflicts. Leon Sanchez: seems we are not ready for public consultation. Let us work on getting the Transparency and Ombudsman sub-groups working together and discuss the open items on the list. 5. Review of Schedule/Timeline Thomas Rickert: we are slipping significantly. There is no guarantee we can continue past ICANN 59 - We have to decide if we are going to warn the community that we may want to extend. It seems fairly obvious from our discussions today that we will have delays. Kavous Arasteh: Agree with TR. we need to reduce confrontations and focus on reasoned discussions. Alan Greenberg: Support TR and KA - vs the budget - as a chartering org I can say we did a best effort - but we need to take the time to look at the overall package so that it makes sense and is a quality product that will not bring unintended consequences. Thomas Rickert: Agree but we are in a test phase of a new way for the community to work with ICANN. Robin Gross: right, Alan, I didn't think we were tying our hands, just trying to provide a n estimate, which may need to be revised. Greg Shatan: I think that a "two sizes fit all" approach to timeframes was unlikely to work for all 9 groups. Robin Gross: When we start with unrealistic timeframes, we can't be surprised when turn out to be too ambitious. Jordan Carter (.nz, ccTLDs): we should be honest: we were exhausted by the WS1 process, the uncertainty around the transition delayed us, and those are both real things Mathieu Weill: Started WS in July in Helsinki - 7 months in the process and by Copenhagen we will have shifted by two ICANN meetings = 9 months. We need to be very clear as to what we want to do and we need and I would be in favour of saying to the chartering orgs that we will be taking longer and put in a realistic timeline - and we should begin this discussion at our next meeting. Greg Shatan: If you look at the average timeframes for the CWG and CCWG, or for GNSO Working Groups, the timelines were aggressive, to say the least. Jorge Cancio (Switzerland): +1 Greg Robin Gross: I like to refer to them as "fantasy timelines", Greg. Jordan Carter (.nz, ccTLDs): I believe we COULD get the substnative work done by June, but the thing is, we would be making huge demands of the rest of the community to focus on accountability issues at Copenhagen and even more at the Joburg meeting. I don't think that would lead to the best input, and so to the right quality of outcomes. avri doria: there is really no relationship between the multistakeholder model and project management Jordan Carter (.nz, ccTLDs): I do not see any reasonable case for us not managing to get this over the line in this calendar year tho. Alan Greenberg: We are not talking about a year! At worst, it would be one ICANN meeting. Jordan Carter (.nz, ccTLDs): just my 15c worth :) Philip Corwin: Agree with Jordan and Greg, plus you never have a real sense of how long these WGs will take until you get into the work and fully comprehend the issues to be tackled. Greg Shatan: We need to look at participation levels (on different types of participation), membership in multiple subgroups, etc. Seun Ojedeji: The aggressive mode also justify the need to have significant time to review the full package once its ready. David McAuley (RySG): IMO WS2 has been hampered a bit by low subgroup participation rates, perhaps inevitable. But maybe we need to have a plan to kick in full CCWG near April if needed. Greg Shatan: The most accountable and transparent thing to do is to be honest about our progress. Julf Helsingius: I agree avri doria: makes sense to be transparent about it. Greg Shatan: "We're not late until the deadline passes" is not a good model. Or so I tell my kids about their homework. avri doria: why it happened, what we are doing to fix it, and how much longer , for example Thomas Rickert: would ask the rapporteurs to revise the timelines so we can get documents out for public consultation ASAP. Kavouss Arasteh: The more time we give the more time we take. Greg Shatan: Yes, we should also be thinking about how to fix it, what needs to be tightened up, etc. Mathieu Weill, ccNSO, co-chair: I'm interested to hear views on "what we're doing to fix it", or what we should do to fix it. Greg Shatan: On the other end of the spectrum, we need to avoid sprawl. Agree with Kavouss. avri doria: doing more of the same, only harder, may not be the answer Greg Shatan: Tightening focus is one of the solution vectors. Greg Shatan: Work smarter, not harder... 6. AOB Thomas rickert: AOB (none) Adjourned. Summary of Action Items: · Good Faith o Good faith subgroup to review and present to the plenary as 1st reading at the next plenary · HR o FOI :Staff to move the FOI to public comment and advise the plenary when it goes up. o SCOPE :Co chairs, liaising with the rapporteur, to propose a solution to the plenary. · Jurisdiction o Staff to prepare publication of the questionnaire and advise the plenary when it goes up. · Transparency o Subgroup rapporteurs to share list of open discussion items for consideration on the plenary mailing list o Staff to set up a joint meeting between Ombud group and Transparency group to review interdependencies · Timeline o Action item : Rapporteurs to submit revised timelines to the co-chairs