Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Meeting #7 – 25 October 2016 will be available here: https://community.icann.org/x/BRC4Aw A copy of the notes and action items may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes Notes (including relevant parts of chat): 40 participants at start of call. 1. Introductions and Updates to Statements of Interest Mathieu Weill: Thomas Rickert audio only. No changes to SOI. 2. ICANN Standards of Behavior for Meetings Leon Sanchez:(review of ICANN standards of behaviour slide). Avri Doria: who enforces the SOB? Leon Sanchez: per rules the Co-Chairs can address issues raised with respect to these. Mathieu Weill, ccNSO, co-chair: The co chairs per our charter Avri Doria: i figured i would ask since i was surprised we were being reminded of them. so that means in the subgroups, it is the rapporteurs? Herb Waye Ombuds: @Avri, people are always free to come to me 3. Review of Action Items from Plenary Leon Sanchez:1 we have received a number of these. 2 We have received this confirmation yesterday of funding of Ombuds review - details to be confirmed.3 ATRT3 conflicts - note from the Chair of the ICANN Board. Steve DelBianco [CSG]: regarding the Crocker letter: To the extent that CCWG represents the community, we have already indicated our preference for ATRT3. --> Option 3 - Convene ATRT3 as soon as possible with the limited scope of assessing implementation of ATRT2 recommendations. Allow WS2 to handle new recommendations for accountability and transparency. The fourth ATRT would convene before 2022 and would assess all accountability and transparency topics and make recommendations 4. Update from the IRP group Mathieu Weill: Rapporteur for IOT Becky Burr will present the update. Becky Burr: (presentation of slides). Deadline to file. propose Alternative 2 modifying the 24 months to be 12 months. David McAuley (RySG): I was one of those supporting alternative two, agree with Becky Farzaneh Badii: There was a conversation about time bar on the mailing list. Are we going to revive the conversation there, or are we deciding here? Alan Greenberg: There is a case recently on an implementation plan on Thick WHOIS - registries published an objection and filed an RFR simultaneously. When is the starting point is the issue. Becky Burr: In this case it would have been when the final decision on the implementation plan has been confirmed. Farzaneh Badii: Alternative 2 makes sense to me Becky Burr: we are doing a first read to finalize in Hyderabad Mathieu Weill, ccNSO, co-chair: Farzaneh, Becky suggest alt 2 + 12 months as compromise Kavouss Arasteh: Mathieu, perhaps you put ALT 2 WITH 12 MONTHS FOR REACTION OF THEGROUP AT FIRST READING BUT WE SHOULD NOT GET TO REDISCUSS THAT Mathieu Weill, ccNSO, co-chair: Noted Kavouss Kavouss Arasteh: I think the suggestion made by Becky take care of concerns expressed with some embeded flexibility Mathieu Weill: BB suggestion accepted as a first reading conclusion. Becky Burr: Cross Examination. (presentation of slide and 3 options). Recommend mixture of 1 and 2 - use extraordinary test for witnesses and if so up to the panel discretion (alt 2) if cross examinations allowed. Brett Schaefer: Would the IRP be the first time that a complainant would be able to challenge the ICANN decision directly? If so, iI think they should be able to ask direct questions and challenge conclusions of ICANN Board/Legal directly. Robin Gross: That seems fair, Brett. Mathieu Weill: First reading completed per BB's suggestion. Becky Burr: will circulate the new wording. 3rd item, new rules impact on current IRP cases. Kavouss Arasteh: Generally speaking no rule or provision should have retroactive application unless legislator prove that such retroactivity is fundamental Avri Doria: the point is we allow retroactivetivity to future changes, so do not understand why it cannot be applied now. Kavouss Arasteh: We need to agree on something which is clear, precise and not subject to additional conditions. We should not allow any retroactivity at all. Avri Doria: we were only talking about case in progress, why does it affect closed cases? Becky Burr: @AD - no only open cases. Kavouss Arasteh: Please do not make the Rules complex and nonunderstandable for those who do not have such legal support as some people has. Becky Burr: understand this - this is a complex legal problem - the standard solution is the rules in place when you file are the rules for the case. I am recommending this. Cherine Chalaby: Becky +1 . In my opinion it is never a good idea to apply rules retrospectively Avri Doria: that was fast Brett Schaefer: Could the ongoing cases be given option on which standards to use? Kavouss Arasteh: Cherine +1 as I said exactly the same legal view Avri Doria: I had draft language in the group that I wish had not been thrown out. but will not stop progress because of this problem. Avri Doria: I do object, but not formally. Brett Schaefer: Unless the new standard is applied universally, we would be having two processes going either way. Avri Doria: we will have that condition Brett. Mathieu Weill: Can this be considered the first reading (no objections). What about panelist selection? Becky Burr: David McAuley has drafted a document which will be presented in Hyderabad. Mathieu Weill: Excellent. Conclusions: -Deadline to File: alternative 2 but change 24 months to12 months from final decision. -Cross examination of witnesses: TBD by the IRP Panel if the extraordinary standard test for in person is met. -IRP in process: use the existing rules. No retroactive application. 5. Reports from Subgroups as to the progress of the work, issues that need to be noted and outreach/liaison requests. a) Transparency – 1st reading Michael Karanicolas: (presentation of document and process). Kavous Arasteh: Suggest accept document but it is too big for a first reading. Farzaneh Badii: Michael, is your group at recommendation stage? Farzaneh Badii: I am skeptical about some of these recommendations. Mark Carvell UK GAC rep: Michael: does the report basically say that all formal interactions between SOs/ACs and the Board are fully transparent? Chris Wilson: Fair point, Kavouss. Michael Karanicolas: Yes, Farzaneh - recommendations are down at the end Sebastien Bachollet: There are overlaps with these recommendations and am looking forward at how we will organize inter-group work. Leon Sanchez: we will review again in Hyderabad and would be ok to be a first reading when considering this is not a final acceptance but rather getting ready for public comments. Michael Karanicolas: Mark - subject to the exceptions in the DIDP Brett Schaefer: I agree with Kavouss since there are still outstanding questions in the text to be addressed. Michael Karanicolas: These specify, in part, that information shouldn't be disclosed if it would harm the deliberative/decision making processes Mark Carvell UK GAC rep: Thanks Michael - good to know! Michael Karanicolas: I don't think a review/reading now would preclude further discussion Steve DelBianco [CSG]: recommendations begin at page 16, if you want to see where Transparency is headed. Kavouss Arasteh: lEON, i DO NOT TAKE IT AS READY FOR FIRST READING Michael Karanicolas: As I mentioned, we need to expand substantially on a few areas, particularly connected to proactive disclosure Steve DelBianco: Have you considered those who have had bad experiences with the existing DIDP on the group? Michael Karanicolas: We have considered the input from people with those complaints. We are focused on how the policy should be improved. We recieved detailed feedback from Ed Morris on this report. Kavouss Arasteh: Mic. we appreciate yr efforts but we need time to carefully review that Michael Karanicolas: Please - we welcome review and further comments, of course Michael Karanicolas: At Hyderabad, or beforehand via email Chris Wilson: Agreed. This is far from final. Leon Sanchez: Note Kavouss' objection but will proceed. b) SO/AC accountability – questions to SO & ACs Mathieu Weill: Really encourage list discussion of these issues prior to Hyderabad would be best. Farzaneh Badii: (presenting the questions slides) Steve DelBianco: few elements of clarification - we are presenting these questions for avoidance of doubt to find documents we have not found or things that have not been written. Would welcome ICANN Staff supporting all SOACs identifying these documents which could then be amended for transmission by the relevant SOAC. Mathieu Weill: just asking SOACs or constituencies? Farzaneh Badii: Its up to SOACs. Kavous Arasteh: Any questions to SOACs that require investigation of other SOACs will cause problems. Per SDB we should not have parallel - staff or SOAC. Mathieu Weill: I think those concerns are addressed KA. Kavouss Arasteh: I have objection that secretariat provide any information without being verfied by the concerned SO/AC Mathieu Weill, ccNSO, co-chair: That's agreed Kavouss Cherine Chelaby: questions vs charter. Steve DelBiano: review of focus of sub-group. Alan Greenberg: Bylaws are not written for this. gNSO is open to those who chose to participate - but may have responsibility beyond those. ALAC rules are different. Its ok to ask SOACs who their constituencies are and how they relate to them. Steve DelBianco [CSG]: per Alan's point, that is why our first question is, What is your interpretation of the designated community defined in the Bylaws. For example, do you view your designated community more broadly or narrowly than the Bylaws ? Cheryl Langdon-Orr (CLO): indeed, Steve that is why we are asking to seek out these variabilities. Cherine Chalaby: @Steve, thanks for your comments and understand that it is not easy to give a definitive answer at this stage Steve DelBianco [CSG]: @Cherine -- would you say we are on the right track? Kavous Arateh: Mutual accountability was settled in WS1 and should not be done in WS2. Herb Waye Ombuds: Mutual accountability will only work if all groups are on the same page regarding inclusive vs. restrictive participation. Mathieu Weill: there may be some confusion on intent but we can clear this up at the face to face meeting. Farzaneh Badii: the current suggestion for Mutual Accountability Roundtable suggested by Willie Currie is not a forum with binding decisions, it’s about sharing views and perspectives among SO/ACs. we have not yet got to discuss that in depth with the group. Farzaneh Badii: in response to"Kavouss Arasteh: Then pls change the tittle to read" Experience sharing among SO/AC ON ACCOUNTABILITY" , certainly when the group finalizes and decides on the role of MAR and if we should have it in place, then we can make changes. Kavouss Arasteh: Farzaneh, we should be objective, pragmatic, and no one should consistently push for the so-called “ Mutual Accountabilty" as it really does not work Mathieu Weill, ccNSO, co-chair: I think there's agreement to defer the discussion on MAR at the moment. Let's follow that line Farzaneh Badii: Kavouss, I agree that we should be pragmatic, however, our charter has charged us with assessing Mutual Accountability Roundtable. We have to address it and come to a conclusion. Cheryl Langdon-Orr (CLO): Nor should any one of us push only against it when we are yet to actually discuss it in any detail at all Kavous ... Happy t end the conversation in chat here Mathieu c) Guideline for Good Faith – update Lori Schulman: (presentation of the very early draft). Robin Gross: Has the community legal team been reconstituted? I thought we agreed to do that awhile ago, but haven't seen anything further on it. Leon Sachez: Legal team will be meeting to consider these questions. this is the first request for the Legal Committee. Alan Greenberg: Discussion of the some of the issues within in the group. Do not want to be limited by needing a rationale but not a cause. Robin Gross: A dispute over facts should not prevent a removal, so I share Alan's concern. Lori Schulman: AG good point. Reason and cause are different. We should not remove a Board member arbitrarily. Robin Gross: Yes, it is "rationale" that must be provided. Kavouss Arasteh: bOARD'S REMOVAL IS A VERY DELICATE AND CRITICAL ISSUE AND SHOULD NOT BE BASED ON PURE THEORY WITHOUT CONSIDERING ANY UNINTENDED OR CONSEQUENTAL ACTIONS THAT BE BE OCURRED IF A MISTAKE IS MADE IN OBLITRATELY MANNER d) Staff accountability – update Avri Doria: (presentation of status update document). Kavouss Arasteh: Then pls change the tittle to read" Experience sharing among SO/aC ON ACCOUNTABILIT" - dURING ws i , I did indicate that pursuing staff accountabilty shall not give rise t to interference with ICANNN management scheme nor disregard the hierarchy of works and responsibilities Becky Burr: ICANN staff is accountable through Reconsideration and IRP Kavouss Arasteh: Staff are accountable to their hierarchy and the Hierarchy are accountable to the community Kavouss Arasteh: Beckie ,yes Avri Doria: many of us have been in organizations where there are multiple point of staff accountability. just having one point of accountability does not seem correct to many of us. Mathieu Weill: Some of these questions would seem relevant with the ICANN CEO at our F@F meeting. Sebastien Bachollet: We will need to discuss the new Complaints Officer which is relevant to this and the Ombuds sub-group. Brett Schaefer: Becky, Dot Registry case said ICANN Legal believes that the bylaws do not apply to staff, only to the Board. An IRP only goes to bylaws violations, so how would that address staff accountability? e) Human rights – update Tijani Ben Jemaa: Niels Ten Oever has sent a status report but the conclusion is we are not ready to submit a report. David McAuley (RySG): I agree with Tijani - we are deep into discussions in the HR sub team and Niels written report is a fair assessment f) Ombudsman – update Sebastien Bachollet: (presentation of slides Little time left.) g) Jurisdiction – update Greg Shatan: (presentation of the Multiple Layers of Jurisdiction document). Jorge Cancio (GAC Switzerland): dear Greg, when was this report circulated to the subgroup? must have been lost amongst my emails... Finn Petersen, GAC - DK: Jorge: also lost amongst my mails :) Jorge Cancio (GAC Switzerland): Don't remember that the working doc contains exactly these conclusions... anyway it is a work in progress doc... not an agreed one Kavouss Arasteh: This merely a copy of the working doc, and does not constitute any progress report. At the last call of the Group, I said it is a good START.That being said it is far from being agreed kavous Arasteh: Main problem we have is Applicable Law. Greg Shatan: I thought "applicable law" was an issue in the HR subgroup.... Sabine Meyer (GAC - Germany): I could also swear that we had something on "applicable law" in one of the WS 1 memos, but I have failed to find it David McAuley (RySG): Applicable law is an active discussion in HR subteam Jorge Cancio (GAC Switzerland): Greg is right: that's a HR subgroup issue 6. Review of agenda and plan for Hyderabad Mathieu Weill: (presentation of proposed schedule) 7. Introduction of proposed CCWG-Acct Dashboard (Skipped) 8. AOB & conclusion Mathieu Weill: (none). Adjourned