Hello all, The notes, recordings and transcripts for CCWG ACCT meeting #78 - 19 January will be available here: https://community.icann.org/x/ipxlAw A copy of the action items and notes may be found below. Thank you. Kind regards, Brenda Action Items * ACTION ITEM - Sebastien to signal whether objection sustained in 48 h. * CONCLUSION/ACTION ITEM: Becky to continue work on this scope and to clarify limits on applicability of IRP. This item will be considered closed unless we get objection from Sebastien within 48 hours that gets traction. * ACTION ITEM: Language to be circulated in second reading conclusions document. * CONCLUSION/ACTION ITEM: Use proposal language, add clarification that Bylaw will remain dormant until FOI is still developed. Circulate proposed language and ask for lawyers to confirm language. * ACTION ITEM: Add discussion point on market mechanism 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. Jeff Neuman, Greg Shatan on the phone. Scope of IRP Overview of conclusions. In addition - we have carve-out language for IRP challenges to a PDP: Notwithstanding the foregoing and notwithstanding any required threshold for launching a community IRP, no community IRP that challenges the result(s) of a supporting organization's policy development process (PDP) may be launched without the support of the supporting organization that developed such PDP or, in the case of joint PDPs, without the support of the supporting organizations that developed such PDP. Feedback: - Does this imply IRP can be used to challenge an action of SO/AC rather than ICANN the corporation? Clarify what limits are in terms of SO/AC activities. --> Clarification will be added. - Will this clause apply to challenging GAC, ALAC recommendations? --> This would be after the fact decision. It does not impact ability of Board to respond. - It will jeopardize the multistakeholder system. Can we re-discuss? --> Multistakeholder input is part of the process. ACTION ITEM - Sebastien to signal whether objection sustained in 48 h. - Carve-out ensures that the multistakeholder approach is functioning. We should anticipate that each PDP that is adopted is verified by the multistakeholder community. This carve-out should ensure it does not contravene wish of PDP. It preserves the approach more than anything else. - Drafting note: The term PDP is not used for the ASO in the Bylaws, so the full expression should be used in any Bylaws. - Without agreement we could not challenge PDP - that is all we are saying. - Against proposed drafting note. - We should not use abbreviation PDP because it is not used in ASO environment. --> We will avoid acronyms. - What is status of DIDP: are we going to handle it separately or will it be WS2? ---> We need escalation process first. - Would DIDP be available to individual or SO/ACs? ---> DIDP is available right now. Violation of Bylaws would be appealable to IRP. - Where will we give consideration to public comments? ---> We have tried to identify in discussion points all the comments with specific attention to COs, Board, constituencies, stakeholder groups. E.g. question of PTI was a CWG-Stewardship comment. It is intent to capture all comments. Anyone is welcome to challenge these key discussion items - if there is a concern, raise it on the call. e.g. Mike Charter raised an omission on list. A summary of comments per recommendation can be found at: <https://www.icann.org/en/system/files/files/summary-comments-draft-ccwg-acco... an16-en.xlsx> https://www.icann.org/en/system/files/files/summary-comments-draft-ccwg-acco... n16-en.xlsx CONCLUSION/ACTION ITEM: Becky to continue work on this scope and to clarify limits on applicability of IRP. This item will be considered closed unless we get objection from Sebastien within 48 hours that gets traction. --- Human Rights Review of current options. Feedback: - Option 2 C is not C reconsidered. It is the dormant Bylaw language that it should not be operational before FoI. --> 2 C is proposal by lawyers. - Why do we need a dormant Bylaw? Mention commitment in WS 1 but have all details in WS2. --> In WP4 commitment to include a transitional Bylaw that would allow commitment for Bylaw to remain dormant and for FoI to be developed. - Object to 3 c: there is significant confusion. Organization must abide by Bylaws. It has to be stated that it is not effective (i.e. Bylaw) otherwise it is effective (subject to IRP). Is it intended that Bylaw is not enforced as opposed to enforceable until FoI is put in place? A is significant departure from 3rd draft. C is closer to what was suggested. A does not take into account transitional Bylaw. Intent is to not have effective until FOI put in place. A deletes the transitional Bylaw and make Human Rights Bylaw immediately effective and binding in terms of action/inaction. That is different from proposal. C leaves the Bylaw effective and binds ICANN in actions/inactions - it is internally contradictory. Alternatives need to be well stated so we understand effect. - Options are not ready-to-go language. These are concepts. Option 3A is not big departure from draft. A is what we had in third draft - B Board/comments suggestions - C is dormant concept. - 3A is language as proposed in report. No big risks with IRP. 3B was discarded by lawyers (see 2A) - Board needs to give more argumentation to consider that further. - Go for something general and safe. - In PC period, strong record of support for that recommendation. Human Rights is an important signal. - Any implementation needs to come after FOI. Alternate A - there is belief it will be immediately effective. It deletes effect of transitional Bylaw. Will ICANN be immediately bound by IRP? Problems understanding between 3A and 3C. ---> Way forward could be to keep language we have in report and specify that implementation of human rights bylaw would be subject to framework of interpretation and that bylaw would remain dormant until then. This would be in line with what was discussed in WP4 and address Board concern. We have not received GAC feedback on this yet. Let's keep this in mind as we wait for GAC input. - Have Bylaw not operational until FOI is adopted. Option of dormant Bylaw is going to address comments, including Board. - We need text to solidify understanding. C cannot be viewed as an option. Board input: Deferring to WS 2 would be cleanest option. The Board is committed to having a commitment to Human rights. We should not have language in Bylaw before framework is developped. We need to see language before considering in detail. --> ACTION ITEM: Language to be circulated in second reading conclusions document. Feedback: - We should all converge towards a single point of agreement. - Do not wait from external input but translate opinions of this group into language. CONCLUSION/ACTION ITEM: Use proposal language, add clarification that Bylaw will remain dormant until FOI is still developed. Circulate proposed language and ask for lawyers to confirm language. Board removal liability mitigation We have concluded discussion with request for our legal counsel to work with Jones Day on finding language. AOC Reviews Overview of discussion items. On 1 & 2 Feedback: / Conclusion: We will move forward with these. On 3 - Any objection to including mid-term review of IRP? This discussion would be deal with IRP IOT Feedback: / Conclusion: No objection On 4 - increase presence of GNSO in gTLD reviews (consumer trust, WHOIS) - Changing numbers might lead to change of number of seats on Review Teams. Does it serve the purpose to augment seats? Feedback: - ALAC will be vocal if this changes. Political pressure is high. ALAC has diversity as well and we will have no choice but to ensure regions are presented as well. - Size needs to be manageable and balance unchanged. Conclusion: No change to proposal. On 5 & 6 Feedback: - Member as different connotation as sole member. We should not reopen issue. It should remain standard bylaw. Conclusion: Our report will stay as it is. On 7 Conclusion: Support for inclusion of recommendation. On the understanding that specific recommendations in Annex 9 would be respected, such that this text addresses only implementation detail Mission Statement Suggesting to break discussion in subparts. We would like to take stock on some of these items and highlight challenges moving forward. Root server language is pending. We have received comment from lawyers on numbers language. In addition, we have text from Izumi. We are wordsmithing - no disagreement on substance. Consumer trust: we have received clarification from Fiona Alexander. Feedback: - Reference to MoU is inappropriate. It may change overtime. - ALAC recommendation on whether market mechanism should remain in Bylaws ACTION ITEM: Add discussion point on market mechanism - Commitments are necessary for expansion of new gTLD. CONCLUSION: We are keeping our Third Draft Proposal language. We are not discarding Consumer Trust per se - although it is not a Core Value, it is part of AoC reviews. ALAC had comment on preservation and enhancement of DNS which was not properly transposed from NTIA requirements. There are two large discussions: - Whether there should be any limitations on scope of ICANN's agreement with contracted parties - to what extent can ICANN enforce commitments. There is a degree of diversion on list. There are fundamental freedom of contract provisions and questions about security and stability of agreement, the extent to which they can rely upon. This debate is still polarized. - Grandfathering - specific request for provisions including PICs - can be renewed without being subject to questions. This is complicated by many operators proposing individual PICs. It involves freedom of contract as well. Expand the conversation to include people who are not participating. Feedback: - ICANN is enforcing terms under which it agreed to a delegation. We have to be able to permit enforcement. - We should accept advice from lawyer but Board will decide what is right. - It raises question of to what extent are applications part of agreement? Conclusion: We will have call to identify where agree on on the list in next few days to we may move to constructive phase to close on this discussion. We will reconvene on this discussion with language based on fruitful mailing-list discussions. GAC Advice Overview of key discussions. In addition we could add: - notion of rationale - add clarification that all ACs, not just GAC. On two suggestions: Feedback: - Agree with these two suggestions - OK with notion of rationale but is there a process if others think it is not a rationale? - Board should decide whether they have received a rationale - We are not singling out GAC. - At discretion of Board to identify whether rationale is sufficient Conclusion: These two suggestions will be taken onboard for second reading. Suggestion to clarify that we cannot restrict AC on advice they offer but that it is clear that ICANN may not take action if inconsistent with its Bylaws. Proposed text: While the GAC is not restricted as to the advice it can offer to ICANN, it is clear that ICANN may not take action that is inconsistent with its Bylaws. The empowered community will have standing to bring an IRP to challenge any board action or inaction that is inconsistent with its bylaws, even if the board acted on GAC advice. Feedback: - Uncontroversial. It should be consistent with Bylaws. - Important to clarify how community IRP. IRP is to bring a finding. Series of consequences flow. Conclusion: We are moving forward with this for second reading. Suggestion to add language: This recommendation is intended to limit the conditions under which the ICANN board must enter a try to find a mutually acceptable solution. This recommendation does not create any new obligations for ICANN board to consider and/or vote on GAC advice, relative to the bylaws in effect prior to the IANA transition. This recommendation does not create any new assumption that ICANN is bound to implement any advice that is not rejected by the board, relative to the bylaws in effect prior to the IANA transition. Feedback: - What are lawyers expected to do? --> Does the clarification help for clarity in drafting? - Support this addition. It is in line with IPC comments. There is no new obligation in way Board deals with GAC advice other than 2/3 majority. Conclusion: We will provide GAC and GNSO time to react on this but this discussion was useful to clarify. AOB We will discuss timeline on Thursday.