Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #76 - 12 January will be available here: https://community.icann.org/x/FZVlAw A copy of the action items and notes may be found below. Thank you. Kind regards, Brenda Action Items * ACTION ITEM: Bruce to relay conclusion to Board. * ACTION ITEM: Double check language for ATRT can accommodate. 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. Steve Crocker - Barrack Otieno - Malcolm Hutty on audio only. No updates to statement of interest. Rec 4 Board removal liability mitigation - Second reading Board input: Whatever will be used to justify to other SO/ACs, community members should be the rationale that will be documented in writing for the Board member to address. It will be tied to the SO/AC. Restrictions are put on ability to state rationale. In terms of pre-service letter, Board is comfortable with agreeing to comply with instructions from Empowered Community but uncomfortable with waiving rights for defamation and indemnification. - Board members facing defamatory content should not be without legal relief. Feedback from lawyers was included. See paragraph 39. We will have waiver requested by commenters but also a corrective safety net for the Director in question in case SO/AC brings wrong accusations. Feedback: - "comprehensive" should not be included. Without indemnification and waiving rights, no point in having power. - Written rationale offering reasons should be sufficient - Replace "is invited" with "if requested, will be invited". If appropriate is incorrect. - Remove "comprehensive". It creates possibility of challenge. Conclusion: comprehensive will be removed. Proposed conclusion: For claims that are within what is appropriate, it will be hard to reason why there should not be any waiver. Where the allegations cross border of defamation, waiver would not be valid: Board member could seek relief. Board input: Not agreeing that this a waiver. We could consider legal advice on indemnification. ACTION ITEM: Bruce to relay conclusion to Board. Feedback: - Officer of SO/ACs should be able to exercise power in good faith but can we create that indemnity? - If only Chairs are indemnified, Empowered Community conversation won't happen - There should be balance between Empowered Community and Board member if exposes to outrageous allegations. Conclusion: Ask Lawyers to reach out to ICANN legal Team/Jones Day to ensure appropriate language is found and bring back feedback from legal team. Rec 12 - Work Stream 2 - Second reading Board input: Discussion focused on paragraph 5. Outstanding concerns: Board preference would be: "limited to". Topics are broad. New topics can be added in regular review cycles (e.g. ATRT). A clear scope and set of issues is needed. Board is also concerned about adding dates to the Bylaws (paragraph 3). We want clear set of issues that will be resourced. Suggestion: SO/ACs could spin off some of these suggestions. Refer to comment: First, the Board agrees that a transitional bylaw can be used to define the Board's commitment on WS2 matters. Second, the effort anticipated in WS2 should be performed through cross community working groups chartered by multiple groups across ICANN, effort and not all work must be done by the existing CCWG-Accountability. Third, the Board agrees that it will treat consensus based-recommendations on the limited list of WS2 topics (set out in the CCWG-Accountability's redline) just as it will consider the consensus-based WS1 recommendations from the CCWG-Accountability. Fourth, the Board does not support the inclusion of a timeline for the required completion of WS2 efforts in the transitional Bylaw. Finally, the Board supports that the costs of WS2 must be subject to the budgetary process for the year. If the budget is exhausted and additional resources are necessary, the chartering organizations must support a request for Board consideration on additional funding. Conclusion: We will take on "limited to". - Feedback from Advisors indicates that diversity needs to be strengthened. We will need to clarify Ombudsman section (Avri and Becky). Adding a note that further items beyond those enumerated in WS2 could be accommodated through regular review cycle is a good suggestion. Feedback: - Unsure the ATRT scope is open to any issues the community would like to introduce. We may need to change Bylaw accompanying the ATRT. --> We have accommodated possibility. ACTION ITEM: Double check language for ATRT can accommodate. - Add clarification that SO/ACs can spin off new issues Conclusion: Second reading is complete. Changes outlined above are to be incorporated. Rec 7 - Scope of IRP - First Reading Refer to discussion points established for first reading. 1.a - 1.b Does the group consider inclusion of PTI actions/inactions as within scope? Feedback: - It does not seem controversial. Exclusion of protocol parameters - likewise - is not controversial and consistent with way numbers related issues have been handled. These two suggestions are clarifications. - Do we have outcomes that go along with it? There should be results that can address this. --> IOT can be in charge of developing those. - PTI structure will be a Fundamental Bylaw. There should be IRP framework to make sure there is no breaching. This requirement is reasonable. - Inconsistency: PTI is an affiliate of ICANN. - Not convinced the result is a violation of Bylaws. PTI is a creature of Bylaws. in our proposal, we need to say possible outcome is a violation of Bylaws or in case of action/inaction, a remedial action. - ICANN's responsibility is to ensure that PTI carries out what contracted to do. Applying something to subsidiary leaves uncertainty as to what would happen if there is separation and if a new body starts new role. Wording seems specific to PTI. We cannot guarantee it will be with us forever. - Should we not just extend standard of review to include PTI bylaws / rules ? - If exclusion, who will develop any required appeal mechanism? --> Mechanisms in place but clarification is needed in our report. Conclusion: Amend 1.a and 1.b to reflect comments voiced on call. 1.c Feedback: - If we take out notion that IRP would have responsibility for reconciling conflicting decisions among expert panels, we would return check with respect to panels. - We need to design a process with respect to experts panel's decisions. Setting up scope is where appeal could be. - IRP is not there to challenge opinion of experts but should be able to challenge decisions of experts as conflicting with Bylaws". It is possible that decision is fundamentally different. It should be within scope of IRP. - Technically, the challenge would be ICANN Board's failure to ensure consistency with Bylaws. - If the experts were self-interested, it would be overturned by the reconsideration process as it would not be operating consistent with the rules of the process. The IRP in that case would be to challenge the Board's decision on that point. Conclusion: Refinement is needed based on comments raised during the call. 1.d - Board concern: having IRP related to DIDP would be engaging it in operational decisions. DIDP should be a reconciliatory process. Feedback: - Is an appeals process available to all? Is the nature of DIDP limited to following Bylaws or can it go to substance? DIDP process should be independent. --> Yes, available to all. Board comments call for appeal to be limited to violation of Bylaws. It is a narrower standard to what was initially proposed i.e. an independent judiciary function. - Labeling something operational should not exclude it from IRP. IRP may itself require access to documents. IRP panels should help have oversight of process. - Important to have independent process in current draft instead of Work Stream 2. Board comment: DIDP in Work Stream 2 should consider if there is a more robust path. Ombudsman could apply broad tests that are in DIDP process and could be first point before reconsideration process. Board is not closing option of independent judiciary. We support that there is an independent party but we should not confuse purpose of IRP. DIDP to be examined in Work Stream 2. Conclusion: WS2 should explore ways to enhance the DIDP to provide an appeals mechanism if not an IRP. 2. Set of suggestions received. Feedback on how IOT should be handling these. Feedback: - There should be ongoing capability for keeping adequacy of IRP process under review in light of experience and with support of standing panel. This should be discussed in IOT. Conclusion: Suggestions to be passed on to IOT. IOT to examine comments and to provide a way forward to incorporate suggestions, as appropriate. Rec 6 - Human Rights - First reading Refer to discussion items. - We have certified request to lawyers to get assessment of whether inclusion of Bylaw would increase risk of ICANN be exposed to claim and as such, how can risk be mitigated. Feedback is expected for second reading. 1. - 2. Any objections with aligning approach that we should avoid hard deadlines? Feedback: - ALAC suggestion is OK. - ICANN Board mentioned that reference should be postponed until framework developed. Can we agree to refer to Human Rights in high level fashion or is the Board recommending no mention of Human Rights at all. - Is Board concerned about timing or wording? Conclusion: Approach is reasonable until we have further discussion in item 2. Board concern: Board does not want Bylaw provision without explanation of how it relates to ICANN. We should first do interpretation work and then incorporate it as Bylaw. Option to have Bylaw activated once Framework of Interpretation is determined. Feedback: - There are different views: In order to mitigate perception, comments should be addressed in detail. Deferring to Work Stream 2 would meet Board concerns. Bylaw to come into force after framework is elaborated would be safe. - Unable to find legal justification for the concern in Board comment. Article 19 legal counsel: in a lot of companies, there is no avalanche of law suits and extra vulnerability. This is confirmed by CCWG lawyers. Board should come up with legal analysis of where these concerns come from. Option 2A where add GPI to mix is unclear. Differ should be defer. --> It would be helpful to receive the legal input the Board received. - We should receive input from GAC. How is C an alternative to A and B? - 2A would mean solving GPI first. 2C should reformulated: clarify what will be addressed in what Work Stream. - Board comment is not isolated. 2B is best option. Consensus was to make high level recommendation in WS 1 and go deeper in WS2. - What we currently have is a high level commitment in WS1 and framework in WS2. Unsure whether CCWG should define GPI. Board should come up with discussion. We should not conflate issues. Board input: Of three options: B is preferred option. C is viable option. Rather than having IRP create a binding case law, we think the community should define it. Once it is defined, IRP can use it as its criteria to make determinations. What will be applicable laws is another question that comes into equation. Feedback: - Applicable law is intentionally put as it is. - Agree that Framework of Interpretation should inform Bylaw. Most of Board comments are already addressed in Bylaw text. There is a misunderstanding about role of corporations and governments in enforcing human rights. Conclusion: We will use input from lawyers and any material from Board to inform second reading next week. Modifications proposed will be included. Rec 5 - Mission - Ad hoc meeting report - Consumer Trust issue was specifically discussed. AOC has a reference in paragraph 3 and obligates ICANN to conduct reviews in context of gTLD expansion. We transposed consumer trust language into Core Value. We took that out on grounds that being challenged, that consumer trust language was specific to new gTLD expansion and should not add a new substantive provision, scope of responsibility to Article 1. ALAC, USCIB and others have continued to challenge that determination and note that Bylaws speak to competition, not Consumer Trust issues. We did not reach solution. There still are convictions that Article 1 should refer role with respect to Consumer Trust. Other feel we should not add a new substantive obligation with respect to Consumer Trust without understanding consequences. While we transposed AOC and did not add new concept, we will continue to report back. Feedback: - Are we also considering comments on coordination/facilitation? --> IAB language was incorporated. Marrakech meeting Travel support from ICANN will reach out to Members for 4 March meeting where we will be discussing Work Stream 2 scoping as well as implementation for Work Stream 1. We will have same policy as for other meetings. We will be working on agendas. We are envisioning an outreach session on Monday and a closing session on Thursday. There will be SO/AC sessions depending on agendas. ICANN has been very receptive to CCWG requests. Feedback: - Be mindful of GAC session on Monday. ---> Participation from all members is not a requirement for outreach session but we will do our best not to clash it with other sessions. - Timing of sessions needed. ---> We are working on this. A.O.B Feedback: - Can we have a revised timeline and what is the timeline we are working with? ---> We cannot provide you with a revised timeline at this point. We need to have feedback first. We will re-evaluate timeline as soon as we have specific input. - ICG is having a meeting tomorrow. There is no clear timeline and hope it will have no impact on ICG schedule. Can you confirm? ---> Not in a position to assure that it will have no impact. It is our intention that it will not.