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.
