Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #18 call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477 Action Items * ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join * ACTION ITEM: Raise with legal advisors (through legal sub team): * ACTION ITEM: Cochairs to specifically review notes on jurisdiction. * ACTION ITEM: Review new version of mission statement later this week. * ACTION ITEM: WP2 to refine the proposals for reconsideration * ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders * ACTION ITEM - CCWG to liaise with ICG Chairs * ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). * ACTION ITEM Follow up on GAO matter on mailing list. 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 1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed. Legal Subteam Methods & Updates León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents. Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list. Feedback: - All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model --> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights. - When posting concerns on main mailing-list, include header. CONCLUSION: Working Methods are adopted - this issue is closed. Adler & Colvin - Preliminary responses to 10 questions Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators. * * Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary); * Self-perpetuating Board may not be something you will use; * Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure; * Neither members nor designators have fiduciary duty unlike directors; * California law principles designates Board as ultimate authority; * If members or designators are unhappy with Board performance, they can remove particular director or Board; * Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group. - This document will be reviewed in detail on Wednesday, 1 April during legal subteam call. - Q2 Responsibilities and liabilities (fiduciary). - Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc. - Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent. - Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest? - Q6 Board bound to accept IRP decisions e.g. contract or super board structure. - Q7 Attorney General: unlikely unless assets are misused. - Q8 How incorporate of AoC into bylaws. - Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider. - Q10 Suggested steps to manage litigations risks. ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join Sidley & Austin - There seems to be overlap between questions asked to A&C and S&A. - CCWG has a lot of tools to accomplish what it needs how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met. - A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed. - Antitrust: it is an issue you have to be mindful of but no significant concerns. WP2 Fundamental Bylaws CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board. Jurisdiction - Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement. - Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2. Feedback: - A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work. --> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this. - Is there something that we have identified that cannot be accomplished according to California law? - This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating --> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up. --> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues. --> Input from Pedro (Brazil), Arun --> Jurisdiction is #1 question within French Business constituency and civil society. - Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled. --> Let's focus on facts and requirements instead of second-guessing political implications. --> Sovereignty concerns from governments when dealing with national courts --> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed. - It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2. ACTION ITEM: Raise with legal advisors (through legal sub team): * What extra accountability would be brought to community if AoC article 8 was incorporated; * Balance of jurisdiction need to further explored. ACTION ITEM: Co-chairs to specifically review notes on jurisdiction. WP1 Community Mechanism - WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG. - CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made. AoC reviews - Migrating 4 reviews into Bylaws with suggested improvements. - Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance). - CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary WP2 mission & Core Values - A revised document was circulated to reflect input from Istanbul (substance and format). - We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input. ACTION ITEM: Review new version of mission statement later this week. WP2 Independent Review No further discussion on this item. CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice. W2 Reconsideration Process - Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction. - Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc); - Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process. - Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases. - Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision. - Implementation: Follow-up process regarding implementation of the decision. - Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened. Feedback: What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects? --> In order to get IRP, reconsideration request would need to be filed. We should spell this out, --> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed. - Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard? --> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation. - Potential paradox between extending timeline for filing and timely issuance of decisions. ACTION ITEM: WP2 to refine the proposals for reconsideration - Call for agreement on whether this is WS1 CONCLUSION: Reconsideration process is WS1. ST-WP - Informal meeting held in Istanbul to discuss #21 (delegation/redelegation). - Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week. ACTION ITEM: Staff to circulate ST-WP call invites. - Edits added to # 21, added new stress. - Veto (supermajority) is distinct from IRP and reconsideration. - CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals. Timeline - Target date for finalizing recommendations is April 20. - Need to provision for 2 public comment periods. - ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss. - Berry Cobb walked the group through timeline update - <https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_... modificationDate=1427802208876&api=v2> https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_... odificationDate=1427802208876&api=v2 Feedback: - Public comments before SO/AC endorsements. - Public comments could not amend outcome unless go back to SO/ACs. - What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be? -> Objective is to get input from SO/ACs at each public comment phase. -> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change. - Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal? - Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires. - Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc. ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders - CoChairs will touch on expected timeline when coordinate with CWG Cochairs. - Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting) ACTION ITEM - CCWG to liaise with ICG Chairs Engagement ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). AOB ACTION ITEM Follow up on GAO matter on mailing list.
Dear All, I request one clarification, and permission to make one comment. I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built. The comment that I wish to make is about the discussions on the issue of 'jurisdiction' . At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdictionconstitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit. Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as 'topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability. Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter. parminder (www.ITforChange.net) On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote:
Dear all,
The notes, recordings and transcripts for the *CCWG ACCT **Session #1**8*call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477
*Action Items*
· *ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join*
· *ACTION ITEM: Raise with legal advisors (through legal sub team):*
· *ACTION ITEM: Cochairs to specifically review notes on jurisdiction.** *
· *ACTION ITEM: Review new version of mission statement later this week.*
· *ACTION ITEM: WP2 to refine the proposals for reconsideration *
· *ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders*
· *ACTION ITEM - CCWG to liaise with ICG Chairs*
· *ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).*
· *ACTION ITEM – Follow up on GAO matter on mailing list.***
*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 /
1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed.
/*Legal Subteam Methods & Updates*/
León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents.
Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list.
Feedback:
- All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model
--> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights.
- When posting concerns on main mailing-list, include header.
CONCLUSION: Working Methods are adopted - this issue is closed.
*_Adler & Colvin_*
- Preliminary responses to 10 questions
Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators.
·
· Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary);
· Self-perpetuating Board may not be something you will use;
· Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure;
· Neither members nor designators have fiduciary duty unlike directors;
· California law principles designates Board as ultimate authority;
· If members or designators are unhappy with Board performance, they can remove particular director or Board;
· Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group.
- This document will be reviewed in detail on Wednesday, 1 April during legal subteam call.
- Q2 Responsibilities and liabilities (fiduciary).
- Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc.
- Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent.
- Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest?
- Q6 Board bound to accept IRP decisions e.g. contract or super board structure.
- Q7 Attorney General: unlikely unless assets are misused.
- Q8 How incorporate of AoC into bylaws.
- Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider.
- Q10 Suggested steps to manage litigations risks.
ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join
*_Sidley & Austin_*
- There seems to be overlap between questions asked to A&C and S&A.
- CCWG has a lot of tools to accomplish what it needs – how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met.
- A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed.
- Antitrust: it is an issue you have to be mindful of but no significant concerns.
/*WP2 Fundamental Bylaws*/
CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board.
/*Jurisdiction*/
- Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement.
- Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2.
_Feedback_:
- A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work.
--> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this.
- Is there something that we have identified that cannot be accomplished according to California law?
- This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating
--> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up.
--> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues.
--> Input from Pedro (Brazil), Arun
--> Jurisdiction is #1 question within French Business constituency and civil society.
- Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled.
--> Let's focus on facts and requirements instead of second-guessing political implications.
--> Sovereignty concerns from governments when dealing with national courts
--> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed.
- It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws
CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2.
ACTION ITEM: Raise with legal advisors (through legal sub team):
· What extra accountability would be brought to community if AoC article 8 was incorporated;
· Balance of jurisdiction need to further explored.
ACTION ITEM: Co-chairs to specifically review notes on jurisdiction.
/*WP1*/
_Community Mechanism_
- WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC – quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG.
- CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made.
_AoC reviews _
- Migrating 4 reviews into Bylaws with suggested improvements.
- Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance).
- CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary
/*WP2 mission & Core Values */
- A revised document was circulated to reflect input from Istanbul (substance and format).
- We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input.
ACTION ITEM: Review new version of mission statement later this week.
/*WP2 Independent Review*/
No further discussion on this item.
CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice.
/*W2 Reconsideration Process */
- Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction.
- Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc);
- Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process.
- Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases.
- Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision.
- Implementation: Follow-up process regarding implementation of the decision.
- Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened.
_Feedback_:
What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects?
--> In order to get IRP, reconsideration request would need to be filed. We should spell this out,
--> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed.
- Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard?
--> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation.
- Potential paradox between extending timeline for filing and timely issuance of decisions.
ACTION ITEM: WP2 to refine the proposals for reconsideration
- Call for agreement on whether this is WS1
CONCLUSION: Reconsideration process is WS1.
/*ST-WP*/
- Informal meeting held in Istanbul to discuss #21 (delegation/redelegation).
- Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week.
ACTION ITEM: Staff to circulate ST-WP call invites.
- Edits added to # 21, added new stress.
- Veto (supermajority) is distinct from IRP and reconsideration.
- CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals.
/*Timeline*/
- Target date for finalizing recommendations is April 20.
- Need to provision for 2 public comment periods.
- ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss.
- Berry Cobb walked the group through timeline update - https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_...
_Feedback_:
- Public comments before SO/AC endorsements.
- Public comments could not amend outcome unless go back to SO/ACs.
- What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be?
-> Objective is to get input from SO/ACs at each public comment phase.
-> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change.
- Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal?
- Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires.
- Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc.
ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders
- CoChairs will touch on expected timeline when coordinate with CWG Cochairs.
- Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting)
ACTION ITEM - CCWG to liaise with ICG Chairs
/*Engagement */
ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).
/*AOB*/
ACTION ITEM – Follow up on GAO matter on mailing list.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi All I am unable to attend the legal team meeting on the 8th, but will be grateful if the meaning of the term 'community' is sorted out, and if needed legal advice taken. It is especially important because the any final proposal should address the intention of the original NTIA declaration to transition its current functions to the 'global multistakeholder community' , which to me appears to refer to global public (although, in my view, in an inadequate manner). If ICANN's enhanced accountability to its SOs and ASs - or the 'community' engaged with names and numbers functions - is to be taken to be meeting the needs of transitioning NTIA's role to the 'global multistakeholder community' or the 'global public', the logic has to be established and explained. I am right now unable to see the logic. Also, the jurisdiction question remains basic. If one prefers concrete examples rather than a larger political discussion: I think it would be universal knowledge that as per the applicable US sanctions, no party or company based in Crimea - and I think also Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia, Venezuela, India, or China, and much more easily a number of smaller nations. Is such a situation tenable? I understand that a number of stress tests are going to be made on any final proposal. Has the contingency of US sanctions on different times on different countries, which if fully enforced would prohibit any US entity to do any kind of business with those countries, taken into account as one stress test? If not, please do include. It is one of the most important stress situations. It is easy to see that any final proposal that keeps ICANN within US jurisdiction will fail this very real stress test. The only solution is an international jurisdiction for ICANN - but certainly immunity from the jurisdiction of the one country which most frequently imposes sanctions and on most number of countries. This is not a tirade against the US, which has many good points to be said about it, it is simply a fact that cannot be refused to be faced. parminder On Friday 03 April 2015 02:37 PM, parminder wrote:
Dear All,
I request one clarification, and permission to make one comment.
I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built.
The comment that I wish to make is about the discussions on the issue of 'jurisdiction' .
At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdictionconstitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit.
Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as 'topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability.
Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter.
parminder (www.ITforChange.net)
On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote:
Dear all,
The notes, recordings and transcripts for the *CCWG ACCT **Session #1**8*call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477
*Action Items*
· *ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join*
· *ACTION ITEM: Raise with legal advisors (through legal sub team):*
· *ACTION ITEM: Cochairs to specifically review notes on jurisdiction.** *
· *ACTION ITEM: Review new version of mission statement later this week.*
· *ACTION ITEM: WP2 to refine the proposals for reconsideration *
· *ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders*
· *ACTION ITEM - CCWG to liaise with ICG Chairs*
· *ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).*
· *ACTION ITEM – Follow up on GAO matter on mailing list.***
*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 /
1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed.
/*Legal Subteam Methods & Updates*/
León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents.
Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list.
Feedback:
- All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model
--> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights.
- When posting concerns on main mailing-list, include header.
CONCLUSION: Working Methods are adopted - this issue is closed.
*_Adler & Colvin_*
- Preliminary responses to 10 questions
Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators.
·
· Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary);
· Self-perpetuating Board may not be something you will use;
· Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure;
· Neither members nor designators have fiduciary duty unlike directors;
· California law principles designates Board as ultimate authority;
· If members or designators are unhappy with Board performance, they can remove particular director or Board;
· Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group.
- This document will be reviewed in detail on Wednesday, 1 April during legal subteam call.
- Q2 Responsibilities and liabilities (fiduciary).
- Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc.
- Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent.
- Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest?
- Q6 Board bound to accept IRP decisions e.g. contract or super board structure.
- Q7 Attorney General: unlikely unless assets are misused.
- Q8 How incorporate of AoC into bylaws.
- Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider.
- Q10 Suggested steps to manage litigations risks.
ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join
*_Sidley & Austin_*
- There seems to be overlap between questions asked to A&C and S&A.
- CCWG has a lot of tools to accomplish what it needs – how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met.
- A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed.
- Antitrust: it is an issue you have to be mindful of but no significant concerns.
/*WP2 Fundamental Bylaws*/
CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board.
/*Jurisdiction*/
- Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement.
- Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2.
_Feedback_:
- A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work.
--> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this.
- Is there something that we have identified that cannot be accomplished according to California law?
- This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating
--> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up.
--> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues.
--> Input from Pedro (Brazil), Arun
--> Jurisdiction is #1 question within French Business constituency and civil society.
- Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled.
--> Let's focus on facts and requirements instead of second-guessing political implications.
--> Sovereignty concerns from governments when dealing with national courts
--> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed.
- It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws
CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2.
ACTION ITEM: Raise with legal advisors (through legal sub team):
· What extra accountability would be brought to community if AoC article 8 was incorporated;
· Balance of jurisdiction need to further explored.
ACTION ITEM: Co-chairs to specifically review notes on jurisdiction.
/*WP1*/
_Community Mechanism_
- WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC – quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG.
- CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made.
_AoC reviews _
- Migrating 4 reviews into Bylaws with suggested improvements.
- Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance).
- CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary
/*WP2 mission & Core Values */
- A revised document was circulated to reflect input from Istanbul (substance and format).
- We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input.
ACTION ITEM: Review new version of mission statement later this week.
/*WP2 Independent Review*/
No further discussion on this item.
CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice.
/*W2 Reconsideration Process */
- Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction.
- Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc);
- Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process.
- Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases.
- Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision.
- Implementation: Follow-up process regarding implementation of the decision.
- Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened.
_Feedback_:
What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects?
--> In order to get IRP, reconsideration request would need to be filed. We should spell this out,
--> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed.
- Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard?
--> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation.
- Potential paradox between extending timeline for filing and timely issuance of decisions.
ACTION ITEM: WP2 to refine the proposals for reconsideration
- Call for agreement on whether this is WS1
CONCLUSION: Reconsideration process is WS1.
/*ST-WP*/
- Informal meeting held in Istanbul to discuss #21 (delegation/redelegation).
- Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week.
ACTION ITEM: Staff to circulate ST-WP call invites.
- Edits added to # 21, added new stress.
- Veto (supermajority) is distinct from IRP and reconsideration.
- CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals.
/*Timeline*/
- Target date for finalizing recommendations is April 20.
- Need to provision for 2 public comment periods.
- ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss.
- Berry Cobb walked the group through timeline update - https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_...
_Feedback_:
- Public comments before SO/AC endorsements.
- Public comments could not amend outcome unless go back to SO/ACs.
- What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be?
-> Objective is to get input from SO/ACs at each public comment phase.
-> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change.
- Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal?
- Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires.
- Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc.
ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders
- CoChairs will touch on expected timeline when coordinate with CWG Cochairs.
- Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting)
ACTION ITEM - CCWG to liaise with ICG Chairs
/*Engagement */
ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).
/*AOB*/
ACTION ITEM – Follow up on GAO matter on mailing list.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi,
From my participant point of view,
On Community: I believe that community and the AC/SO community are nearly coincident, in an asymptotic way. In the case where they are not, it is mostly due, in my opinion, to inadequate outreach and engagement. Governments are included, can, and do, participate in the processes. Hopefuly more countries will engage earlier in the process all the time. The users are represented in a network of local user organizations. There should be more of these all the time and they should become more engaged in the process. The commercial interests are engaged in many ways, and I expect in more ways all the time. And various special interests like security and stability of the Internet and rights on the Internet are also represented to varying degrees among the AC/SO. An additional piece of this community involvement, since the AC/SO can never reach everyone, relies on the fully open comment periods that all policy goes through. Everyone is periodically requested to comment on the problems before they are worked on, and on the solutions while they are still drafts and after they are proposed to the Board. More and more these requests for comment are released in multiple scripts and languages. On Jurisdiction: I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution. avri On 05-Apr-15 01:25, parminder wrote:
Hi All
I am unable to attend the legal team meeting on the 8th, but will be grateful if the meaning of the term 'community' is sorted out, and if needed legal advice taken. It is especially important because the any final proposal should address the intention of the original NTIA declaration to transition its current functions to the 'global multistakeholder community' , which to me appears to refer to global public (although, in my view, in an inadequate manner). If ICANN's enhanced accountability to its SOs and ASs - or the 'community' engaged with names and numbers functions - is to be taken to be meeting the needs of transitioning NTIA's role to the 'global multistakeholder community' or the 'global public', the logic has to be established and explained. I am right now unable to see the logic.
Also, the jurisdiction question remains basic. If one prefers concrete examples rather than a larger political discussion: I think it would be universal knowledge that as per the applicable US sanctions, no party or company based in Crimea - and I think also Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia, Venezuela, India, or China, and much more easily a number of smaller nations. Is such a situation tenable? I understand that a number of stress tests are going to be made on any final proposal. Has the contingency of US sanctions on different times on different countries, which if fully enforced would prohibit any US entity to do any kind of business with those countries, taken into account as one stress test? If not, please do include. It is one of the most important stress situations. It is easy to see that any final proposal that keeps ICANN within US jurisdiction will fail this very real stress test. The only solution is an international jurisdiction for ICANN - but certainly immunity from the jurisdiction of the one country which most frequently imposes sanctions and on most number of countries. This is not a tirade against the US, which has many good points to be said about it, it is simply a fact that cannot be refused to be faced.
parminder
On Friday 03 April 2015 02:37 PM, parminder wrote:
Dear All,
I request one clarification, and permission to make one comment.
I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built.
The comment that I wish to make is about the discussions on the issue of 'jurisdiction' .
At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdictionconstitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit.
Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as 'topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability.
Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter.
parminder (www.ITforChange.net)
On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote:
Dear all,
The notes, recordings and transcripts for the *CCWG ACCT **Session #1**8*call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477
*Action Items*
· *ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join*
· *ACTION ITEM: Raise with legal advisors (through legal sub team):*
· *ACTION ITEM: Cochairs to specifically review notes on jurisdiction.** *
· *ACTION ITEM: Review new version of mission statement later this week.*
· *ACTION ITEM: WP2 to refine the proposals for reconsideration *
· *ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders*
· *ACTION ITEM - CCWG to liaise with ICG Chairs*
· *ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).*
· *ACTION ITEM – Follow up on GAO matter on mailing list.***
*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 /
1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed.
/*Legal Subteam Methods & Updates*/
León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents.
Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list.
Feedback:
- All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model
--> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights.
- When posting concerns on main mailing-list, include header.
CONCLUSION: Working Methods are adopted - this issue is closed.
*_Adler & Colvin_*
- Preliminary responses to 10 questions
Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators.
·
· Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary);
· Self-perpetuating Board may not be something you will use;
· Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure;
· Neither members nor designators have fiduciary duty unlike directors;
· California law principles designates Board as ultimate authority;
· If members or designators are unhappy with Board performance, they can remove particular director or Board;
· Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group.
- This document will be reviewed in detail on Wednesday, 1 April during legal subteam call.
- Q2 Responsibilities and liabilities (fiduciary).
- Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc.
- Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent.
- Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest?
- Q6 Board bound to accept IRP decisions e.g. contract or super board structure.
- Q7 Attorney General: unlikely unless assets are misused.
- Q8 How incorporate of AoC into bylaws.
- Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider.
- Q10 Suggested steps to manage litigations risks.
ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join
*_Sidley & Austin_*
- There seems to be overlap between questions asked to A&C and S&A.
- CCWG has a lot of tools to accomplish what it needs – how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met.
- A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed.
- Antitrust: it is an issue you have to be mindful of but no significant concerns.
/*WP2 Fundamental Bylaws*/
CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board.
/*Jurisdiction*/
- Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement.
- Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2.
_Feedback_:
- A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work.
--> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this.
- Is there something that we have identified that cannot be accomplished according to California law?
- This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating
--> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up.
--> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues.
--> Input from Pedro (Brazil), Arun
--> Jurisdiction is #1 question within French Business constituency and civil society.
- Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled.
--> Let's focus on facts and requirements instead of second-guessing political implications.
--> Sovereignty concerns from governments when dealing with national courts
--> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed.
- It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws
CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2.
ACTION ITEM: Raise with legal advisors (through legal sub team):
· What extra accountability would be brought to community if AoC article 8 was incorporated;
· Balance of jurisdiction need to further explored.
ACTION ITEM: Co-chairs to specifically review notes on jurisdiction.
/*WP1*/
_Community Mechanism_
- WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC – quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG.
- CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made.
_AoC reviews _
- Migrating 4 reviews into Bylaws with suggested improvements.
- Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance).
- CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary
/*WP2 mission & Core Values */
- A revised document was circulated to reflect input from Istanbul (substance and format).
- We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input.
ACTION ITEM: Review new version of mission statement later this week.
/*WP2 Independent Review*/
No further discussion on this item.
CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice.
/*W2 Reconsideration Process */
- Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction.
- Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc);
- Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process.
- Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases.
- Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision.
- Implementation: Follow-up process regarding implementation of the decision.
- Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened.
_Feedback_:
What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects?
--> In order to get IRP, reconsideration request would need to be filed. We should spell this out,
--> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed.
- Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard?
--> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation.
- Potential paradox between extending timeline for filing and timely issuance of decisions.
ACTION ITEM: WP2 to refine the proposals for reconsideration
- Call for agreement on whether this is WS1
CONCLUSION: Reconsideration process is WS1.
/*ST-WP*/
- Informal meeting held in Istanbul to discuss #21 (delegation/redelegation).
- Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week.
ACTION ITEM: Staff to circulate ST-WP call invites.
- Edits added to # 21, added new stress.
- Veto (supermajority) is distinct from IRP and reconsideration.
- CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals.
/*Timeline*/
- Target date for finalizing recommendations is April 20.
- Need to provision for 2 public comment periods.
- ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss.
- Berry Cobb walked the group through timeline update - https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_...
_Feedback_:
- Public comments before SO/AC endorsements.
- Public comments could not amend outcome unless go back to SO/ACs.
- What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be?
-> Objective is to get input from SO/ACs at each public comment phase.
-> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change.
- Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal?
- Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires.
- Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc.
ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders
- CoChairs will touch on expected timeline when coordinate with CWG Cochairs.
- Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting)
ACTION ITEM - CCWG to liaise with ICG Chairs
/*Engagement */
ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).
/*AOB*/
ACTION ITEM – Follow up on GAO matter on mailing list.
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Dear Avri, se my question inline please Carlos Raúl Gutiérrez _____________________ email: crg@isoc-cr.org Skype: carlos.raulg +506 8335 2487 (cel) +506 4000 2000 (home) +506 2290 3678 (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA
On Apr 5, 2015, at 7:39 AM, Avri Doria <avri@acm.org> wrote:
Hi,
From my participant point of view,
On Community:
I believe that community and the AC/SO community are nearly coincident, in an asymptotic way. In the case where they are not, it is mostly due, in my opinion, to inadequate outreach and engagement. Governments are included, can, and do, participate in the processes. Hopefuly more countries will engage earlier in the process all the time. The users are represented in a network of local user organizations. There should be more of these all the time and they should become more engaged in the process. The commercial interests are engaged in many ways, and I expect in more ways all the time. And various special interests like security and stability of the Internet and rights on the Internet are also represented to varying degrees among the AC/SO.
I don’t feel confident by your equation of community = AC/SO, even under the asymptotic conditions (in the long term we are all dead, Keynes used to say). AC/SO are structured differently internally. While there may be an analogy between the "geographic coverage” objectives of ALACA, GAC and ccNSO, their internal composition couldn’t be more varied. The same for the internal composition of the GNSO. Can the GNSO speak authoritatively for all its constituencies at the community level? We see symptoms of those internal differences in the definition of consensus for example. And Parmider already notices some cross representation of certain loosely defined groups.
An additional piece of this community involvement, since the AC/SO can never reach everyone, relies on the fully open comment periods that all policy goes through. Everyone is periodically requested to comment on the problems before they are worked on, and on the solutions while they are still drafts and after they are proposed to the Board. More and more these requests for comment are released in multiple scripts and languages.
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution.
avri
On 05-Apr-15 01:25, parminder wrote:
Hi All
I am unable to attend the legal team meeting on the 8th, but will be grateful if the meaning of the term 'community' is sorted out, and if needed legal advice taken. It is especially important because the any final proposal should address the intention of the original NTIA declaration to transition its current functions to the 'global multistakeholder community' , which to me appears to refer to global public (although, in my view, in an inadequate manner). If ICANN's enhanced accountability to its SOs and ASs - or the 'community' engaged with names and numbers functions - is to be taken to be meeting the needs of transitioning NTIA's role to the 'global multistakeholder community' or the 'global public', the logic has to be established and explained. I am right now unable to see the logic.
Also, the jurisdiction question remains basic. If one prefers concrete examples rather than a larger political discussion: I think it would be universal knowledge that as per the applicable US sanctions, no party or company based in Crimea - and I think also Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia,Venezuela, India, or China, and much more easily a number of smaller nations. Is such a situation tenable? I understand that a number of stress tests are going to be made on any final proposal. Has the contingency of US sanctions on different times on different countries, which if fully enforced would prohibit any US entity to do any kind of business with those countries, taken into account as one stress test? If not, please do include. It is one of the most important stress situations. It is easy to see that any final proposal that keeps ICANN within US jurisdiction will fail this very real stress test. The only solution is an international jurisdiction for ICANN - but certainly immunity from the jurisdiction of the one country which most frequently imposes sanctions and on most number of countries. This is not a tirade against the US, which has many good points to be said about it, it is simply a fact that cannot be refused to be faced.
parminder
On Friday 03 April 2015 02:37 PM, parminder wrote:
Dear All,
I request one clarification, and permission to make one comment.
I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built.
The comment that I wish to make is about the discussions on the issue of 'jurisdiction' .
At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdiction constitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit.
Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as ' topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability.
Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter.
parminder (www.ITforChange.net <http://www.itforchange.net/>)
On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote:
<Mail Attachment.gif> Dear all,
The notes, recordings and transcripts for the CCWG ACCT Session #18 call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477 <https://community.icann.org/pages/viewpage.action?pageId=52893477> Action Items · ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join · ACTION ITEM: Raise with legal advisors (through legal sub team): · ACTION ITEM: Cochairs to specifically review notes on jurisdiction. · ACTION ITEM: Review new version of mission statement later this week. · ACTION ITEM: WP2 to refine the proposals for reconsideration · ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders · ACTION ITEM - CCWG to liaise with ICG Chairs · ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). · ACTION ITEM – Follow up on GAO matter on mailing list. 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 1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed. Legal Subteam Methods & Updates León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents. Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list. Feedback: - All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model --> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights. - When posting concerns on main mailing-list, include header. CONCLUSION: Working Methods are adopted - this issue is closed. Adler & Colvin - Preliminary responses to 10 questions Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators. · · Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary); · Self-perpetuating Board may not be something you will use; · Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure; · Neither members nor designators have fiduciary duty unlike directors; · California law principles designates Board as ultimate authority; · If members or designators are unhappy with Board performance, they can remove particular director or Board; · Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group. - This document will be reviewed in detail on Wednesday, 1 April during legal subteam call. - Q2 Responsibilities and liabilities (fiduciary). - Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc. - Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent. - Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest? - Q6 Board bound to accept IRP decisions e.g. contract or super board structure. - Q7 Attorney General: unlikely unless assets are misused. - Q8 How incorporate of AoC into bylaws. - Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider. - Q10 Suggested steps to manage litigations risks. ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join Sidley & Austin - There seems to be overlap between questions asked to A&C and S&A. - CCWG has a lot of tools to accomplish what it needs – how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met. - A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed. - Antitrust: it is an issue you have to be mindful of but no significant concerns. WP2 Fundamental Bylaws CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board. Jurisdiction - Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement. - Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2. Feedback: - A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work. --> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this. - Is there something that we have identified that cannot be accomplished according to California law? - This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating --> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up. --> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues. --> Input from Pedro (Brazil), Arun --> Jurisdiction is #1 question within French Business constituency and civil society. - Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled. --> Let's focus on facts and requirements instead of second-guessing political implications. --> Sovereignty concerns from governments when dealing with national courts --> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed. - It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2. ACTION ITEM: Raise with legal advisors (through legal sub team): · What extra accountability would be brought to community if AoC article 8 was incorporated; · Balance of jurisdiction need to further explored. ACTION ITEM: Co-chairs to specifically review notes on jurisdiction. WP1 Community Mechanism - WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC – quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG. - CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made. AoC reviews - Migrating 4 reviews into Bylaws with suggested improvements. - Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance). - CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary WP2 mission & Core Values - A revised document was circulated to reflect input from Istanbul (substance and format). - We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input. ACTION ITEM: Review new version of mission statement later this week. WP2 Independent Review No further discussion on this item. CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice. W2 Reconsideration Process - Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction. - Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc); - Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process. - Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases. - Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision. - Implementation: Follow-up process regarding implementation of the decision. - Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened. Feedback: What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects? --> In order to get IRP, reconsideration request would need to be filed. We should spell this out, --> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed. - Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard? --> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation. - Potential paradox between extending timeline for filing and timely issuance of decisions. ACTION ITEM: WP2 to refine the proposals for reconsideration - Call for agreement on whether this is WS1 CONCLUSION: Reconsideration process is WS1. ST-WP - Informal meeting held in Istanbul to discuss #21 (delegation/redelegation). - Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week. ACTION ITEM: Staff to circulate ST-WP call invites. - Edits added to # 21, added new stress. - Veto (supermajority) is distinct from IRP and reconsideration. - CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals. Timeline - Target date for finalizing recommendations is April 20. - Need to provision for 2 public comment periods. - ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss. - Berry Cobb walked the group through timeline update - https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_... <https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_...> Feedback: - Public comments before SO/AC endorsements. - Public comments could not amend outcome unless go back to SO/ACs. - What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be? -> Objective is to get input from SO/ACs at each public comment phase. -> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change. - Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal? - Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires. - Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc. ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders - CoChairs will touch on expected timeline when coordinate with CWG Cochairs. - Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting) ACTION ITEM - CCWG to liaise with ICG Chairs Engagement ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). AOB ACTION ITEM – Follow up on GAO matter on mailing list.
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Hi On 05-Apr-15 10:03, Carlos Raúl Gutiérrez wrote:
Dear Avri,
se my question inline please
Carlos Raúl Gutiérrez _____________________
On Apr 5, 2015, at 7:39 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
From my participant point of view,
On Community:
I believe that community and the AC/SO community are nearly coincident, in an asymptotic way. In the case where they are not, it is mostly due, in my opinion, to inadequate outreach and engagement. Governments are included, can, and do, participate in the processes. Hopefuly more countries will engage earlier in the process all the time. The users are represented in a network of local user organizations. There should be more of these all the time and they should become more engaged in the process. The commercial interests are engaged in many ways, and I expect in more ways all the time. And various special interests like security and stability of the Internet and rights on the Internet are also represented to varying degrees among the AC/SO.
I don’t feel confident by your equation of community = AC/SO, even under the asymptotic conditions (in the long term we are all dead, Keynes used to say). AC/SO are structured differently internally. While there may be an analogy between the "geographic coverage” objectives of ALACA, GAC and ccNSO, their internal composition couldn’t be more varied. The same for the internal composition of the GNSO. Can the GNSO speak authoritatively for all its constituencies at the community level? We see symptoms of those internal differences in the definition of consensus for example. And Parmider already notices some cross representation of certain loosely defined groups.
That is another reason that I believe the that broad open comment in multiple scripts and languages is critical. I am personally not bothered by each organization finding its own bottom-up way to its own notion of representativity and consensus. I also believe that the mesh organizational structure that ICANN has with its SO/AC, where one community axis works on solutions in a single topic, and the other community works on advice concerning all the cross cutting issues, does lead to a wider consensus. This despite the different ways of identifying that consensus within the groups. Everything does not need to the same to be equivalent. avri
An additional piece of this community involvement, since the AC/SO can never reach everyone, relies on the fully open comment periods that all policy goes through. Everyone is periodically requested to comment on the problems before they are worked on, and on the solutions while they are still drafts and after they are proposed to the Board. More and more these requests for comment are released in multiple scripts and languages.
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution.
avri
On 05-Apr-15 01:25, parminder wrote:
Hi All
I am unable to attend the legal team meeting on the 8th, but will be grateful if the meaning of the term 'community' is sorted out, and if needed legal advice taken. It is especially important because the any final proposal should address the intention of the original NTIA declaration to transition its current functions to the 'global multistakeholder community' , which to me appears to refer to global public (although, in my view, in an inadequate manner). If ICANN's enhanced accountability to its SOs and ASs - or the 'community' engaged with names and numbers functions - is to be taken to be meeting the needs of transitioning NTIA's role to the 'global multistakeholder community' or the 'global public', the logic has to be established and explained. I am right now unable to see the logic.
Also, the jurisdiction question remains basic. If one prefers concrete examples rather than a larger political discussion: I think it would be universal knowledge that as per the applicable US sanctions, no party or company based in Crimea - and I think also Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia,Venezuela, India, or China, and much more easily a number of smaller nations. Is such a situation tenable? I understand that a number of stress tests are going to be made on any final proposal. Has the contingency of US sanctions on different times on different countries, which if fully enforced would prohibit any US entity to do any kind of business with those countries, taken into account as one stress test? If not, please do include. It is one of the most important stress situations. It is easy to see that any final proposal that keeps ICANN within US jurisdiction will fail this very real stress test. The only solution is an international jurisdiction for ICANN - but certainly immunity from the jurisdiction of the one country which most frequently imposes sanctions and on most number of countries. This is not a tirade against the US, which has many good points to be said about it, it is simply a fact that cannot be refused to be faced.
parminder
On Friday 03 April 2015 02:37 PM, parminder wrote:
Dear All,
I request one clarification, and permission to make one comment.
I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built.
The comment that I wish to make is about the discussions on the issue of 'jurisdiction' .
At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdiction constitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit.
Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as ' topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability.
Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter.
parminder (www.ITforChange.net)
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Hello Avri
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution. I think you have stated the problem well here. It might be an area where the CCWG can get some legal advice on how to ensure the above can be achieved. Ie it is less about where ICNAN is physically located or incorporated - and more about the ability of affected parties to use courts that are appropriate for them. Regards Bruce Tonkin
Speaking here of my personal opinion, I agree with Bruce that jurisdiction (in terms of where states, IGOs, and other stakeholders might be able to take issues to a "jurisdictionally appropriate" court) is less about where ICANN is physically located/incorporated and more about the ability of affected parties to use courts that are appropriate for them. Sidley/Austin, the lawyers advising the CWG (and the CCWG in conjunction with the Adler firm), noted during the CWG meeting in Istanbul that canvassing the laws of all possible countries in this respect can get very costly very quickly and add to that that it would be very time-consuming. I would argue that the outcome of any such research may not be that clear in any event - concepts of jurisdiction for waging lawsuits are changing as the world economy becomes more and more digital. ICANN is probably already subject to jurisdiction for litigation in a whole lot of places around the globe (the answer won't become absolutely clear vis-a-vis any particular country until litigation on the issue occurs there and jurisdiction is addressed by the court). And so my answer to Bruce's suggestion that the CCWG could perhaps get legal advice on how to ensure access to appropriate courts would be to instead ensure that IRP has scope to consider issues of substance and that a way be found to have IRP rulings enforced. It seems to me that that would be better than canvassing endless and possibly opaque laws from around the world. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Sunday, April 05, 2015 7:09 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Hello Avri
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution. I think you have stated the problem well here. It might be an area where the CCWG can get some legal advice on how to ensure the above can be achieved. Ie it is less about where ICNAN is physically located or incorporated - and more about the ability of affected parties to use courts that are appropriate for them. Regards Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1. For accountability purposes, the key is making sure the IRP has adequate remit to address all issues of concern and adequate enforceability of its judgments. I doubt that we will ever have enforceability against sovereign nations except to the extent they agree to be bound -- but all other parties ought to be bindable as a condition of participation, including ICANN ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 -----Original Message----- From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Monday, April 6, 2015 11:10 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Speaking here of my personal opinion, I agree with Bruce that jurisdiction (in terms of where states, IGOs, and other stakeholders might be able to take issues to a "jurisdictionally appropriate" court) is less about where ICANN is physically located/incorporated and more about the ability of affected parties to use courts that are appropriate for them. Sidley/Austin, the lawyers advising the CWG (and the CCWG in conjunction with the Adler firm), noted during the CWG meeting in Istanbul that canvassing the laws of all possible countries in this respect can get very costly very quickly and add to that that it would be very time-consuming. I would argue that the outcome of any such research may not be that clear in any event - concepts of jurisdiction for waging lawsuits are changing as the world economy becomes more and more digital. ICANN is probably already subject to jurisdiction for litigation in a whole lot of places around the globe (the answer won't become absolutely clear vis-a-vis any particular country until litigation on the issue occurs there and jurisdiction is addressed by the court). And so my answer to Bruce's suggestion that the CCWG could perhaps get legal advice on how to ensure access to appropriate courts would be to instead ensure that IRP has scope to consider issues of substance and that a way be found to have IRP rulings enforced. It seems to me that that would be better than canvassing endless and possibly opaque laws from around the world. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Sunday, April 05, 2015 7:09 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Hello Avri
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution. I think you have stated the problem well here. It might be an area where the CCWG can get some legal advice on how to ensure the above can be achieved. Ie it is less about where ICNAN is physically located or incorporated - and more about the ability of affected parties to use courts that are appropriate for them. Regards Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
All, Please permit me a few thoughts *On 'Jurisdiction'*. In my opinion, discussions of "jurisdiction" can only be useful and worthwhile if the following criteria are present: A. *Use the Word "Jurisdiction" Accurately*. The participants must be clear and consistent in the meaning and use of the term "jurisdiction." Too often, they are not. As Bruce Tonkin (among others) has pointed out, "jurisdiction" has several meanings, which are essentially separate from each other. To paraphrase Bruce's list (I may be leaving something out, for which I apologize): 1. *Legal Establishment*: The country (and in a federal system the state/province/etc.) in which an entity is legally incorporated or established. 2. *Physical Domicile and/or Location*: The country (or countries) (and in a federal system the states/provinces/etc.) in which an entity is (a) physically headquartered/"domiciled" and/or (b) located. 3. *Legal Recourse/Venue (Ability to Sue or Be Sued)*: The country (or countries) (etc.) (or other forums, such as international courts and tribunals) where an entity can (a) sue and/or (b) be sued. May be specified in contracts, but also a matter for legal determination. 4. *Choice of Law*: The country (etc.) whose laws will govern a contract. Often specified in contracts, but may also be a matter for legal determination. As an example (and as Avri and David pointed out), discussions that start out with concerns or claims about the location of Legal Establishment or Physical Domicile, can turn out to be about Legal Recourse. I am tempted to suggest that the word "jurisdiction" be retired from our conversations, and that one of these more discrete terms be used instead. That way we would know what we are talking about when we talk about "jurisdiction." As another example, it is quite possible (and quite common) to have an entity incorporated in Delaware, headquartered in New York, with locations in 50+ countries (some of which could be subsidiaries incorporated in those countries). This entity could then enter into a contract under French law requiring that cases arising under the contract be litigated in the U.K. A third party, affected by the contract sues in Morocco, where the entity has a physical location. What is the jurisdiction of the entity? B. *Identify the Problem to be Solved*. Discussions of "jurisdiction" really need a *clear* and *accurate* statement of the problem to be resolved. Too often, these conversations start out with general concerns about "jurisdiction," (often, but not always, asserting that U.S. or "Californian" "jurisdiction" is problematic or undesirable), but don't clearly state what the problem is. Or, if they do, it tends to be inaccurate, speculation or FUD. Overblown and highly speculative claims and extrapolation from facts (or "facts") to extreme consequences are also a common problem. If we don't know what the specific problem or concern is, the conversation will tend to deteriorate or dissolve. In contrast, a clear, accurate statement of a problem should provide the basis for useful discussion. Focusing on a particular problem or closely related problem set also helps. C. *Use Accurate Statements of Facts*. This problem begins with inaccurate and overblown problem statements, but it is compounded when the responses (pro and con), also misstate facts (intentionally or not) and extrapolate from their own "facts" or those on the other side. Let's stick to the facts, even if it makes it harder to shoot from the hip. (Conversely, let's be tolerant of minor, unintentional inaccuracies.) Intentionally claiming something to be a fact when it is not is particularly counterproductive; although it is an interesting rhetorical tactic, it impedes the search for truth and for common ground. D. *Say Something about the Solution*. To set the discussion on the right track, it's really important that the originator tries to make a *clear* and *factually-grounded* statement of what a solution needs to accomplish. This is not merely a corollary of (B). Since this is primarily a practical discussion, not a philosophical one, solutions are critical. Throwing problems at the group with no hint of a what a solution should include and achieve doesn't really help. It leaves the others "grasping at straws," rather than solving the problem. There doesn't need to be a ton of detail -- just enough to get people going in the right direction. However, it's important that the solution be concrete and grounded in fact -- it's almost as unhelpful to throw out a broad principle or concept which may or may not exist or practically be available (e.g., "international jurisdiction") or to claim that there's a better "jurisdiction" (place of legal establishment) without being specific about which potential jurisdictions to consider or why they are "better." Even if discussions of "jurisdiction" meet all these criteria, there is plenty of room for discussion, disagreement and development -- but at least it is more likely to be productive and not a waste of time. Where one or more of these criteria is absent, the discussion tends to get mired down in misunderstandings and attempts to clarify what flavor of "jurisdiction" is being discussed, in debunking of each other's "facts," in nebulous philosophical concerns, and in unsupported assertions that the "grass is greener" somewhere else. Ultimately, the discussion might get back on track, but the amount of time and effort necessary to work out what the problem is, what kind of "jurisdiction" it relates to, and how the problem might be solved -- in other words, to get the discussion to the "starting line" -- is just a huge waste of resources. Unfortunately, I think this current thread is in danger of failing on all four criteria. Efforts are being made to rehabilitate it, and I may join them. In any event, I would urge the participants in this and other "jurisdiction" discussions to give some consideration to my thoughts here, and to make efforts to adopt these criteria when "jurisdiction" is being discussed. Thank you for indulging me if you have read this far. Greg Shataqn On Mon, Apr 6, 2015 at 1:37 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
+1. For accountability purposes, the key is making sure the IRP has adequate remit to address all issues of concern and adequate enforceability of its judgments. I doubt that we will ever have enforceability against sovereign nations except to the extent they agree to be bound -- but all other parties ought to be bindable as a condition of participation, including ICANN ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066
-----Original Message----- From: McAuley, David [mailto:dmcauley@verisign.com] Sent: Monday, April 6, 2015 11:10 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Speaking here of my personal opinion, I agree with Bruce that jurisdiction (in terms of where states, IGOs, and other stakeholders might be able to take issues to a "jurisdictionally appropriate" court) is less about where ICANN is physically located/incorporated and more about the ability of affected parties to use courts that are appropriate for them.
Sidley/Austin, the lawyers advising the CWG (and the CCWG in conjunction with the Adler firm), noted during the CWG meeting in Istanbul that canvassing the laws of all possible countries in this respect can get very costly very quickly and add to that that it would be very time-consuming.
I would argue that the outcome of any such research may not be that clear in any event - concepts of jurisdiction for waging lawsuits are changing as the world economy becomes more and more digital. ICANN is probably already subject to jurisdiction for litigation in a whole lot of places around the globe (the answer won't become absolutely clear vis-a-vis any particular country until litigation on the issue occurs there and jurisdiction is addressed by the court).
And so my answer to Bruce's suggestion that the CCWG could perhaps get legal advice on how to ensure access to appropriate courts would be to instead ensure that IRP has scope to consider issues of substance and that a way be found to have IRP rulings enforced. It seems to me that that would be better than canvassing endless and possibly opaque laws from around the world.
David McAuley
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Sunday, April 05, 2015 7:09 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Hello Avri
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution.
I think you have stated the problem well here. It might be an area where the CCWG can get some legal advice on how to ensure the above can be achieved. Ie it is less about where ICNAN is physically located or incorporated - and more about the ability of affected parties to use courts that are appropriate for them.
Regards Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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+1 Indeed! -- Sent from myMail app for Android Monday, 06 April 2015, 05:55PM -04:00 from Greg Shatan <gregshatanipc@gmail.com>:
All, Please permit me a few thoughts On 'Jurisdiction' . In my opinion, discussions of "jurisdiction" can only be useful and worthwhile if the following criteria are present: A. Use the Word "Jurisdiction" Accurately . The participants must be clear and consistent in the meaning and use of the term "jurisdiction." Too often, they are not. As Bruce Tonkin (among others) has pointed out, "jurisdiction" has several meanings, which are essentially separate from each other. To paraphrase Bruce's list (I may be leaving something out, for which I apologize): 1. Legal Establishment : The country (and in a federal system the state/province/etc.) in which an entity is legally incorporated or established. 2. Physical Domicile and/or Location : The country (or countries) (and in a federal system the states/provinces/etc.) in which an entity is (a) physically headquartered/"domiciled" and/or (b) located. 3. Legal Recourse/Venue (Ability to Sue or Be Sued) : The country (or countries) (etc.) (or other forums, such as international courts and tribunals) where an entity can (a) sue and/or (b) be sued. May be specified in contracts, but also a matter for legal determination. 4. Choice of Law : The country (etc.) whose laws will govern a contract. Often specified in contracts, but may also be a matter for legal determination. As an example (and as Avri and David pointed out), discussions that start out with concerns or claims about the location of Legal Establishment or Physical Domicile, can turn out to be about Legal Recourse. I am tempted to suggest that the word "jurisdiction" be retired from our conversations, and that one of these more discrete terms be used instead. That way we would know what we are talking about when we talk about "jurisdiction." As another example, it is quite possible (and quite common) to have an entity incorporated in Delaware, headquartered in New York, with locations in 50+ countries (some of which could be subsidiaries incorporated in those countries). This entity could then enter into a contract under French law requiring that cases arising under the contract be litigated in the U.K. A third party, affected by the contract sues in Morocco, where the entity has a physical location. What is the jurisdiction of the entity? B. Identify the Problem to be Solved . Discussions of "jurisdiction" really need a clear and accurate statement of the problem to be resolved. Too often, these conversations start out with general concerns about "jurisdiction," (often, but not always, asserting that U.S. or "Californian" "jurisdiction" is problematic or undesirable), but don't clearly state what the problem is. Or, if they do, it tends to be inaccurate, speculation or FUD. Overblown and highly speculative claims and extrapolation from facts (or "facts") to extreme consequences are also a common problem. If we don't know what the specific problem or concern is, the conversation will tend to deteriorate or dissolve. In contrast, a clear, accurate statement of a problem should provide the basis for useful discussion. Focusing on a particular problem or closely related problem set also helps. C. Use Accurate Statements of Facts . This problem begins with inaccurate and overblown problem statements, but it is compounded when the responses (pro and con), also misstate facts (intentionally or not) and extrapolate from their own "facts" or those on the other side. Let's stick to the facts, even if it makes it harder to shoot from the hip. (Conversely, let's be tolerant of minor, unintentional inaccuracies.) Intentionally claiming something to be a fact when it is not is particularly counterproductive; although it is an interesting rhetorical tactic, it impedes the search for truth and for common ground. D. Say Something about the Solution . To set the discussion on the right track, it's really important that the originator tries to make a clear and factually-grounded statement of what a solution needs to accomplish. This is not merely a corollary of (B). Since this is primarily a practical discussion, not a philosophical one, solutions are critical. Throwing problems at the group with no hint of a what a solution should include and achieve doesn't really help. It leaves the others "grasping at straws," rather than solving the problem. There doesn't need to be a ton of detail -- just enough to get people going in the right direction. However, it's important that the solution be concrete and grounded in fact -- it's almost as unhelpful to throw out a broad principle or concept which may or may not exist or practically be available (e.g., "international jurisdiction") or to claim that there's a better "jurisdiction" (place of legal establishment) without being specific about which potential jurisdictions to consider or why they are "better." Even if discussions of "jurisdiction" meet all these criteria, there is plenty of room for discussion, disagreement and development -- but at least it is more likely to be productive and not a waste of time. Where one or more of these criteria is absent, the discussion tends to get mired down in misunderstandings and attempts to clarify what flavor of "jurisdiction" is being discussed, in debunking of each other's "facts," in nebulous philosophical concerns, and in unsupported assertions that the "grass is greener" somewhere else. Ultimately, the discussion might get back on track, but the amount of time and effort necessary to work out what the problem is, what kind of "jurisdiction" it relates to, and how the problem might be solved -- in other words, to get the discussion to the "starting line" -- is just a huge waste of resources. Unfortunately, I think this current thread is in danger of failing on all four criteria. Efforts are being made to rehabilitate it, and I may join them. In any event, I would urge the participants in this and other "jurisdiction" discussions to give some consideration to my thoughts here, and to make efforts to adopt these criteria when "jurisdiction" is being discussed. Thank you for indulging me if you have read this far. Greg Shataqn On Mon, Apr 6, 2015 at 1:37 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > wrote:
+1. For accountability purposes, the key is making sure the IRP has adequate remit to address all issues of concern and adequate enforceability of its judgments. I doubt that we will ever have enforceability against sovereign nations except to the extent they agree to be bound -- but all other parties ought to be bindable as a condition of participation, including ICANN ...
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066
-----Original Message----- From: McAuley, David [mailto: dmcauley@verisign.com ] Sent: Monday, April 6, 2015 11:10 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Speaking here of my personal opinion, I agree with Bruce that jurisdiction (in terms of where states, IGOs, and other stakeholders might be able to take issues to a "jurisdictionally appropriate" court) is less about where ICANN is physically located/incorporated and more about the ability of affected parties to use courts that are appropriate for them.
Sidley/Austin, the lawyers advising the CWG (and the CCWG in conjunction with the Adler firm), noted during the CWG meeting in Istanbul that canvassing the laws of all possible countries in this respect can get very costly very quickly and add to that that it would be very time-consuming.
I would argue that the outcome of any such research may not be that clear in any event - concepts of jurisdiction for waging lawsuits are changing as the world economy becomes more and more digital. ICANN is probably already subject to jurisdiction for litigation in a whole lot of places around the globe (the answer won't become absolutely clear vis-a-vis any particular country until litigation on the issue occurs there and jurisdiction is addressed by the court).
And so my answer to Bruce's suggestion that the CCWG could perhaps get legal advice on how to ensure access to appropriate courts would be to instead ensure that IRP has scope to consider issues of substance and that a way be found to have IRP rulings enforced. It seems to me that that would be better than canvassing endless and possibly opaque laws from around the world.
David McAuley
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org ] On Behalf Of Bruce Tonkin Sent: Sunday, April 05, 2015 7:09 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Hello Avri
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution.
I think you have stated the problem well here. It might be an area where the CCWG can get some legal advice on how to ensure the above can be achieved. Ie it is less about where ICNAN is physically located or incorporated - and more about the ability of affected parties to use courts that are appropriate for them.
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Hi, I am wondering whether this is an issue that can be directed to our legal experts; both our International Law Advisor Lee Bygrave, and the Legal Experts we have hired. Specifically: how can affected parties, whether sovereign, IGO or individuals outside countries with ICANN presence, can use courts or other legal mechanisms that are appropriate for them, their jurisdiction and international law. avri On 05-Apr-15 19:09, Bruce Tonkin wrote:
Hello Avri
On Jurisdiction: I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution.
I think you have stated the problem well here. It might be an area where the CCWG can get some legal advice on how to ensure the above can be achieved. Ie it is less about where ICNAN is physically located or incorporated - and more about the ability of affected parties to use courts that are appropriate for them.
Regards Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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As Co-Chair of a working group that is presently inquiring into the scope of sovereign immunity for IGOs as it relates to access to the UDRP, URS, or a new domain arbitration mechanism, I can advise that you are suggesting wading into very murky waters. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Wednesday, April 08, 2015 6:13 PM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Jurisdictional Issue Hi, I am wondering whether this is an issue that can be directed to our legal experts; both our International Law Advisor Lee Bygrave, and the Legal Experts we have hired. Specifically: how can affected parties, whether sovereign, IGO or individuals outside countries with ICANN presence, can use courts or other legal mechanisms that are appropriate for them, their jurisdiction and international law. avri On 05-Apr-15 19:09, Bruce Tonkin wrote: Hello Avri On Jurisdiction: I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution. I think you have stated the problem well here. It might be an area where the CCWG can get some legal advice on how to ensure the above can be achieved. Ie it is less about where ICNAN is physically located or incorporated - and more about the ability of affected parties to use courts that are appropriate for them. Regards Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ [Avast logo]<http://www.avast.com/> This email has been checked for viruses by Avast antivirus software. www.avast.com<http://www.avast.com/> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5856 / Virus Database: 4321/9479 - Release Date: 04/07/15
On Sunday 05 April 2015 07:09 PM, Avri Doria wrote:
Hi,
From my participant point of view,
On Community:
Avri Thanks for your response. Although I have some substantive points to make about your definition of 'community' , I will do so in another email. What is more important at this stage is that even your response, to me, underlines the urgent need to get clarity within the group, and in terms of its final report, about what is meant with 'community'; issues like whether with communtiy we mean SOs/ACs, and whether this 'community' being empowered to exercise better accountability is the same as the 'global multistakeholder global community' mentioned in the original NTIA announcement. We need complete political and legal clarity about the use of this term, which is so central to the discussions, and I understand would also be to the final proposal. So, hopefully, we can first focus on clarity of the meaning and definition of 'community', which is commonly shared by all - something which is much more easy to share than differences in substantive views. Can the legal team meeting on the 8th do it? Next, about your observations on the jurisdiction question, thanks for supporting the proposition that it a most important issue to be considered by this group in right and full earnest. Further substantive points in a different email, but just wanted to add a point of fact on your observation " I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system." One must add to 'states and IGO's also 95 percent of global population that is not US citizens. We must keep in mind that constitutional rights and some of the most important legal protections of the US jurisdiction are *not available* to non US citizens, which is 95 percent of the world's population. (The recent NASA surveillance issue demonstrating it well enough, if indeed any demonstration was needed!) Second, it is not just a matter to be able to 'argue ones case in a jurisdictionally appropriate venue' but also to be an equal participant in constructing that jurisdiction (through democratic political means) whih 95 percent of the global population have no role with regard to the US jurisdiction. (If this point is included in your definition of 'jurisdictionally appropriate venue' then fine, and my apologies for the contention.) BTW, this is what is meant by the need for global Internet governance to be democratic. Regards parminder
I believe that community and the AC/SO community are nearly coincident, in an asymptotic way. In the case where they are not, it is mostly due, in my opinion, to inadequate outreach and engagement. Governments are included, can, and do, participate in the processes. Hopefuly more countries will engage earlier in the process all the time. The users are represented in a network of local user organizations. There should be more of these all the time and they should become more engaged in the process. The commercial interests are engaged in many ways, and I expect in more ways all the time. And various special interests like security and stability of the Internet and rights on the Internet are also represented to varying degrees among the AC/SO.
An additional piece of this community involvement, since the AC/SO can never reach everyone, relies on the fully open comment periods that all policy goes through. Everyone is periodically requested to comment on the problems before they are worked on, and on the solutions while they are still drafts and after they are proposed to the Board. More and more these requests for comment are released in multiple scripts and languages.
On Jurisdiction:
I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution.
avri
On 05-Apr-15 01:25, parminder wrote:
Hi All
I am unable to attend the legal team meeting on the 8th, but will be grateful if the meaning of the term 'community' is sorted out, and if needed legal advice taken. It is especially important because the any final proposal should address the intention of the original NTIA declaration to transition its current functions to the 'global multistakeholder community' , which to me appears to refer to global public (although, in my view, in an inadequate manner). If ICANN's enhanced accountability to its SOs and ASs - or the 'community' engaged with names and numbers functions - is to be taken to be meeting the needs of transitioning NTIA's role to the 'global multistakeholder community' or the 'global public', the logic has to be established and explained. I am right now unable to see the logic.
Also, the jurisdiction question remains basic. If one prefers concrete examples rather than a larger political discussion: I think it would be universal knowledge that as per the applicable US sanctions, no party or company based in Crimea - and I think also Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia, Venezuela, India, or China, and much more easily a number of smaller nations. Is such a situation tenable? I understand that a number of stress tests are going to be made on any final proposal. Has the contingency of US sanctions on different times on different countries, which if fully enforced would prohibit any US entity to do any kind of business with those countries, taken into account as one stress test? If not, please do include. It is one of the most important stress situations. It is easy to see that any final proposal that keeps ICANN within US jurisdiction will fail this very real stress test. The only solution is an international jurisdiction for ICANN - but certainly immunity from the jurisdiction of the one country which most frequently imposes sanctions and on most number of countries. This is not a tirade against the US, which has many good points to be said about it, it is simply a fact that cannot be refused to be faced.
parminder
On Friday 03 April 2015 02:37 PM, parminder wrote:
Dear All,
I request one clarification, and permission to make one comment.
I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built.
The comment that I wish to make is about the discussions on the issue of 'jurisdiction' .
At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdictionconstitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit.
Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as 'topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability.
Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter.
parminder (www.ITforChange.net)
On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote:
Dear all,
The notes, recordings and transcripts for the *CCWG ACCT **Session #1**8*call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477
*Action Items*
· *ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join*
· *ACTION ITEM: Raise with legal advisors (through legal sub team):*
· *ACTION ITEM: Cochairs to specifically review notes on jurisdiction.** *
· *ACTION ITEM: Review new version of mission statement later this week.*
· *ACTION ITEM: WP2 to refine the proposals for reconsideration *
· *ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders*
· *ACTION ITEM - CCWG to liaise with ICG Chairs*
· *ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).*
· *ACTION ITEM – Follow up on GAO matter on mailing list.***
*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 /
1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed.
/*Legal Subteam Methods & Updates*/
León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents.
Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list.
Feedback:
- All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model
--> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights.
- When posting concerns on main mailing-list, include header.
CONCLUSION: Working Methods are adopted - this issue is closed.
*_Adler & Colvin_*
- Preliminary responses to 10 questions
Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators.
·
· Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary);
· Self-perpetuating Board may not be something you will use;
· Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure;
· Neither members nor designators have fiduciary duty unlike directors;
· California law principles designates Board as ultimate authority;
· If members or designators are unhappy with Board performance, they can remove particular director or Board;
· Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group.
- This document will be reviewed in detail on Wednesday, 1 April during legal subteam call.
- Q2 Responsibilities and liabilities (fiduciary).
- Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc.
- Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent.
- Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest?
- Q6 Board bound to accept IRP decisions e.g. contract or super board structure.
- Q7 Attorney General: unlikely unless assets are misused.
- Q8 How incorporate of AoC into bylaws.
- Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider.
- Q10 Suggested steps to manage litigations risks.
ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join
*_Sidley & Austin_*
- There seems to be overlap between questions asked to A&C and S&A.
- CCWG has a lot of tools to accomplish what it needs – how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met.
- A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed.
- Antitrust: it is an issue you have to be mindful of but no significant concerns.
/*WP2 Fundamental Bylaws*/
CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board.
/*Jurisdiction*/
- Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement.
- Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2.
_Feedback_:
- A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work.
--> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this.
- Is there something that we have identified that cannot be accomplished according to California law?
- This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating
--> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up.
--> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues.
--> Input from Pedro (Brazil), Arun
--> Jurisdiction is #1 question within French Business constituency and civil society.
- Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled.
--> Let's focus on facts and requirements instead of second-guessing political implications.
--> Sovereignty concerns from governments when dealing with national courts
--> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed.
- It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws
CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2.
ACTION ITEM: Raise with legal advisors (through legal sub team):
· What extra accountability would be brought to community if AoC article 8 was incorporated;
· Balance of jurisdiction need to further explored.
ACTION ITEM: Co-chairs to specifically review notes on jurisdiction.
/*WP1*/
_Community Mechanism_
- WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC – quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG.
- CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made.
_AoC reviews _
- Migrating 4 reviews into Bylaws with suggested improvements.
- Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance).
- CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary
/*WP2 mission & Core Values */
- A revised document was circulated to reflect input from Istanbul (substance and format).
- We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input.
ACTION ITEM: Review new version of mission statement later this week.
/*WP2 Independent Review*/
No further discussion on this item.
CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice.
/*W2 Reconsideration Process */
- Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction.
- Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc);
- Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process.
- Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases.
- Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision.
- Implementation: Follow-up process regarding implementation of the decision.
- Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened.
_Feedback_:
What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects?
--> In order to get IRP, reconsideration request would need to be filed. We should spell this out,
--> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed.
- Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard?
--> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation.
- Potential paradox between extending timeline for filing and timely issuance of decisions.
ACTION ITEM: WP2 to refine the proposals for reconsideration
- Call for agreement on whether this is WS1
CONCLUSION: Reconsideration process is WS1.
/*ST-WP*/
- Informal meeting held in Istanbul to discuss #21 (delegation/redelegation).
- Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week.
ACTION ITEM: Staff to circulate ST-WP call invites.
- Edits added to # 21, added new stress.
- Veto (supermajority) is distinct from IRP and reconsideration.
- CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals.
/*Timeline*/
- Target date for finalizing recommendations is April 20.
- Need to provision for 2 public comment periods.
- ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss.
- Berry Cobb walked the group through timeline update - https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_...
_Feedback_:
- Public comments before SO/AC endorsements.
- Public comments could not amend outcome unless go back to SO/ACs.
- What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be?
-> Objective is to get input from SO/ACs at each public comment phase.
-> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change.
- Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal?
- Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires.
- Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc.
ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders
- CoChairs will touch on expected timeline when coordinate with CWG Cochairs.
- Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting)
ACTION ITEM - CCWG to liaise with ICG Chairs
/*Engagement */
ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).
/*AOB*/
ACTION ITEM – Follow up on GAO matter on mailing list.
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With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which Im aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_me dium=email&utm_campaign=signature-us2015> From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, April 5, 2015 1:26 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Hi All I am unable to attend the legal team meeting on the 8th, but will be grateful if the meaning of the term 'community' is sorted out, and if needed legal advice taken. It is especially important because the any final proposal should address the intention of the original NTIA declaration to transition its current functions to the 'global multistakeholder community' , which to me appears to refer to global public (although, in my view, in an inadequate manner). If ICANN's enhanced accountability to its SOs and ASs - or the 'community' engaged with names and numbers functions - is to be taken to be meeting the needs of transitioning NTIA's role to the 'global multistakeholder community' or the 'global public', the logic has to be established and explained. I am right now unable to see the logic. Also, the jurisdiction question remains basic. If one prefers concrete examples rather than a larger political discussion: I think it would be universal knowledge that as per the applicable US sanctions, no party or company based in Crimea - and I think also Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia, Venezuela, India, or China, and much more easily a number of smaller nations. Is such a situation tenable? I understand that a number of stress tests are going to be made on any final proposal. Has the contingency of US sanctions on different times on different countries, which if fully enforced would prohibit any US entity to do any kind of business with those countries, taken into account as one stress test? If not, please do include. It is one of the most important stress situations. It is easy to see that any final proposal that keeps ICANN within US jurisdiction will fail this very real stress test. The only solution is an international jurisdiction for ICANN - but certainly immunity from the jurisdiction of the one country which most frequently imposes sanctions and on most number of countries. This is not a tirade against the US, which has many good points to be said about it, it is simply a fact that cannot be refused to be faced. parminder On Friday 03 April 2015 02:37 PM, parminder wrote: Dear All, I request one clarification, and permission to make one comment. I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built. The comment that I wish to make is about the discussions on the issue of 'jurisdiction' . At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdiction constitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit. Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as ' topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability. Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter. parminder (www.ITforChange.net <http://www.ITforChange.net> ) On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote: Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #18 call on 31 March will be available here: https://community.icann.org/pages/viewpage.action?pageId=52893477 Action Items * ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join * ACTION ITEM: Raise with legal advisors (through legal sub team): * ACTION ITEM: Cochairs to specifically review notes on jurisdiction. * ACTION ITEM: Review new version of mission statement later this week. * ACTION ITEM: WP2 to refine the proposals for reconsideration * ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders * ACTION ITEM - CCWG to liaise with ICG Chairs * ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). * ACTION ITEM Follow up on GAO matter on mailing list. 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 1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed. Legal Subteam Methods & Updates León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to documents. Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable with executives from legal subteam acting as liaison between firms and larger group? It was stressed that the subset of Subteam would have obligation to collect any concerns or questions from larger group and relay them to lawyers. It was commented that questions or concerns from group should be raised on main CCWG-ACCT mailing list. Feedback: - All correspondence between lawyers and subgroup should be open and transparent. Agree that should not be entire team but anyone should be able to join the list on read-only model --> This is what is in place. Anyone who wishes to join the legal subteam can join the list on read-only mode. Only executive Subteam members have posting rights. - When posting concerns on main mailing-list, include header. CONCLUSION: Working Methods are adopted - this issue is closed. Adler & Colvin - Preliminary responses to 10 questions Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different models of governance. Likely will end up using membership or designators. * * Statutory members (entities or individuals) would elect directors and would be given bundle of rights (positions of directors can vary); * Self-perpetuating Board may not be something you will use; * Designators: appoint seats but no constellation of membership rights, more a matter of drafting a structure; * Neither members nor designators have fiduciary duty unlike directors; * California law principles designates Board as ultimate authority; * If members or designators are unhappy with Board performance, they can remove particular director or Board; * Possible to have an executive committee (highly engaged) of a larger group. The larger group would be entitled - in discharging duties - to rely on smaller group i.e. the superBoard option. Certain authorities would have to be exercised by full group. - This document will be reviewed in detail on Wednesday, 1 April during legal subteam call. - Q2 Responsibilities and liabilities (fiduciary). - Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining bottom-up group (more empowered): what decisions it will have, who is in the group etc. - Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or articles, designators to consent. - Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing constituency and acting in public interest? - Q6 Board bound to accept IRP decisions e.g. contract or super board structure. - Q7 Attorney General: unlikely unless assets are misused. - Q8 How incorporate of AoC into bylaws. - Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises that group reconsider. - Q10 Suggested steps to manage litigations risks. ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join Sidley & Austin - There seems to be overlap between questions asked to A&C and S&A. - CCWG has a lot of tools to accomplish what it needs how to use them needs to be determined. Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met. - A jurisdictional review of every place in world where you could reincorporate is premature and would be an expensive endeavor. Any state in USA would work. California is a great place to focus and cannot think of other state that would be automatically more advantageous. Switzerland has a structure that include membership structure we can look into, if needed. - Antitrust: it is an issue you have to be mindful of but no significant concerns. WP2 Fundamental Bylaws CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval with specific procedure requirements from community. Scope of bylaws would include: core mission of ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and spill board. Jurisdiction - Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it in the Istanbul statement. - Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN but to enhance its accountability. Question is whether ICANN's accountability would be enhanced depending on law applicable to its actions (legal input useful here). We concluded that 1) we would not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in our scope as a topic when a requirement we set cannot be met or achieved within California jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2. Feedback: - A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be amended to incorporate AoC obligations including #8, that needs to happen through CCWG work. --> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws, articles). Legal group could look into this. - Is there something that we have identified that cannot be accomplished according to California law? - This is unnecessarily bringing negative political attention onto this work and transition. Is anyone driving this issue for it to be a must-be? Where are those questions originating --> There were questions raised whether California law would constrain accountability. No reasons to believe there is something that cannot be achieved outside California law. The question whether ICANN can remain accountable to global community if remains in California is being brought up. --> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included initial questions in legal scoping document as well as adding input from Jorge Cancio on whether there are provisions on jurisdiction issues. --> Input from Pedro (Brazil), Arun --> Jurisdiction is #1 question within French Business constituency and civil society. - Jurisdictional question is not necessarily centered around where the corporation is based, rather legal questions governments may have for which they could not come to US court. They are looking for method of raising legal issues that are not necessarily restricted to US courts but rather involving international arbitration decision-making that is adequate at government level. T ere is no appropriate mechanism for governments, international bodies to bring actions, questions, issue before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1 issue but addressing questions of appropriate mechanism for others to get jurisdictional response is perhaps a question that needs to be tackled. --> Let's focus on facts and requirements instead of second-guessing political implications. --> Sovereignty concerns from governments when dealing with national courts --> Who are the people that can approach the US court? Question of which legal jurisdictions provide for ideal balance has not been answered by Sidley & Austin - answer needed. - It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2. ACTION ITEM: Raise with legal advisors (through legal sub team): * What extra accountability would be brought to community if AoC article 8 was incorporated; * Balance of jurisdiction need to further explored. ACTION ITEM: Co-chairs to specifically review notes on jurisdiction. WP1 Community Mechanism - WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC quick drafting will be done to tighten up options that were discussed in Istanbul in regards to community mechanisms and see if can come to understanding to debate with lawyers and CCWG. - CONCLUSION: there was agreement that voting would be involved and transparency would be needed. Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for determining who has vote. For all powers, there was a common ground that there is no specific cause for a decision to be made. AoC reviews - Migrating 4 reviews into Bylaws with suggested improvements. - Discussion point on ways to appoint members of Review Team (intention that community selects representatives but comments about diversity balance). - CONCLUSION: Increased transparency features (access to documents, annual report on accountability & transparency), potential for incorporating new reviews, when necessary WP2 mission & Core Values - A revised document was circulated to reflect input from Istanbul (substance and format). - We will circulate a revised draft which compares existing Bylaws with proposed changes and incorporates input. ACTION ITEM: Review new version of mission statement later this week. WP2 Independent Review No further discussion on this item. CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders with provisions against frivolous claims. There were a number of items to look at how binding it could be, subject to legal advice. W2 Reconsideration Process - Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction. - Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc); - Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process. - Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases. - Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision. - Implementation: Follow-up process regarding implementation of the decision. - Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened. Feedback: What is the interaction between IRP and reconsideration request? Do we need to articulate how it connects? --> In order to get IRP, reconsideration request would need to be filed. We should spell this out, --> It depends on what the substantive work of the independent review, what standards of evaluation is (exhaustion of remedies). Clarification needed. - Are we broadening scope to go beyond (new information, facts) - would this tie into violation of Bylaws standard or other standard? --> Standards (put in Bylaws) would be standards against which reconsideration requests could be measured to see if Bylaws were actually followed. Reconsideration request avenue would be available to rectify situation. - Potential paradox between extending timeline for filing and timely issuance of decisions. ACTION ITEM: WP2 to refine the proposals for reconsideration - Call for agreement on whether this is WS1 CONCLUSION: Reconsideration process is WS1. ST-WP - Informal meeting held in Istanbul to discuss #21 (delegation/redelegation). - Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next week. ACTION ITEM: Staff to circulate ST-WP call invites. - Edits added to # 21, added new stress. - Veto (supermajority) is distinct from IRP and reconsideration. - CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against some of their proposals. Timeline - Target date for finalizing recommendations is April 20. - Need to provision for 2 public comment periods. - ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO meeting so that all members could attend and discuss. - Berry Cobb walked the group through timeline update - <https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline _v0.9.6.5.pdf?version=1&modificationDate=1427802208876&api=v2> https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_ v0.9.6.5.pdf?version=1&modificationDate=1427802208876&api=v2 Feedback: - Public comments before SO/AC endorsements. - Public comments could not amend outcome unless go back to SO/ACs. - What is standard length of public comment period? When should be deadline to publish prior to meeting? What if one of COs want changes to document delivered on October 1: how will we deal with that and what will consequences be? -> Objective is to get input from SO/ACs at each public comment phase. -> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive timeline, attempting 30 days subject to change. - Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and prepare next draft using input received. Prepare a document in between is not practical. Depending on nature of feedback, we will be able to prepare second draft with little effort or will need F2F to re-engineer. How can CWG finalize its proposal without finalized accountability proposal? - Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize after Buenos Aires. - Need to be aware there is a significant difference between expectations set on group by some of SO/ACs, Board etc. ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected timeline and engage with relevant stakeholders - CoChairs will touch on expected timeline when coordinate with CWG Cochairs. - Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting) ACTION ITEM - CCWG to liaise with ICG Chairs Engagement ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time). AOB ACTION ITEM Follow up on GAO matter on mailing list. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Paul, as an aficionado of court judgements, could you kindly point me towards the one you are aware of, below? el -- Sent from Dr Lisse's iPad mini
On Apr 5, 2015, at 18:03, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth.
Paul
Paul Rosenzweig
[...]
Dear Eberhard I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. :) In any event, a link to the district court decision is here: https://www.icann.org/en/system/files/files/order-memo-granting-motion-to-qu.... Not exactly on point, but indicative, in my view, of the unlikelihood of US courts interfering …. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...> From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 5, 2015 2:58 PM To: CCWG Accountability Cc: directors@omadhina.net Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Paul, as an aficionado of court judgements, could you kindly point me towards the one you are aware of, below? el -- Sent from Dr Lisse's iPad mini On Apr 5, 2015, at 18:03, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth. Paul Paul Rosenzweig [...]
Paul I know the case. They argued it wrong. The lawyers did not do diligence for research Carrie Devorah On Sun, Apr 5, 2015 at 9:21 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Eberhard
I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. J In any event, a link to the district court decision is here: https://www.icann.org/en/system/files/files/order-memo-granting-motion-to-qu.... Not exactly on point, but indicative, in my view, of the unlikelihood of US courts interfering ….
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
<http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...>
*From:* Dr Eberhard W Lisse [mailto:el@lisse.na] *Sent:* Sunday, April 5, 2015 2:58 PM *To:* CCWG Accountability *Cc:* directors@omadhina.net *Subject:* Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Paul,
as an aficionado of court judgements, could you kindly point me towards the one you are
aware of, below?
el
--
Sent from Dr Lisse's iPad mini
On Apr 5, 2015, at 18:03, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth.
Paul
Paul Rosenzweig
[...]
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-- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
Dear Co-Chairs, the case does not pertain to .NK (which does no exist) but to .KP, .IR and .SY. Does not pertain to gTLDs but ccTLDs. Does not pertain to Registrars but to the ccTLD Managers. Does not pertain to change the ccTLD Manager per se but to attachment of an asset to satisfy a judgement of same court (which might, or might not, lead to a change in the root zone). Does not predict at all what other courts will do, because it focuses quite narrowly on a technicality of DC law. As you know, if there is no Federal Law on an issue, a Federal Court has to use the State Law of the State it finds itself. And the judge decided that, as pleaded, the ccTLDs are not subject to attachment under DC law and did not decide anything further. My understanding is that other States have other Laws. I have now read the gentleman's blog entries (and some others) which lead me to the conclusion that I will probably not read (m)any more. His notion that a ccTLD belongs (in the sense of property) to a country (as in an entity) by default, shows a worrisome lack of depth, even though in these three particular instances a case can be made that the owners are state entities, and it would follow as far as attempts of satisfying an existing judgement against the three countries are concerned they would seem to be legitimate targets. The matter at hand, is under appeal, by the way, which may become a Stress Test of its own. el -- Sent from Dr Lisse's iPad mini
On Apr 6, 2015, at 02:21, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Eberhard
I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. J In any event, a link to the district court decision is here: https://www.icann.org/en/system/files/files/order-memo-granting-motion-to-qu.... Not exactly on point, but indicative, in my view, of the unlikelihood of US courts interfering ….
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key <image001.jpg>
From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 5, 2015 2:58 PM To: CCWG Accountability Cc: directors@omadhina.net Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Paul,
as an aficionado of court judgements, could you kindly point me towards the one you are aware of, below?
el
-- Sent from Dr Lisse's iPad mini
On Apr 5, 2015, at 18:03, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth.
Paul
Paul Rosenzweig
[...]
And I was just beginning to like “the gentleman.” I guess the blog will have to survive with one less reader. :( For those interested in what I actually wrote (which must be a very few of you) here is the link: http://www.lawfareblog.com/2014/11/the-ir-kp-and-sy-domains-are-safe/ And here are the final sentences: “Thus, the [American] law of attachment and seizure is, fortunately, in sync with the broader policy goal of fostering a universal and open internet. That goal would have been greatly damaged by the intervention of US courts in to the country-code naming process.” Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...> From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Monday, April 6, 2015 6:13 AM To: CCWG Accountability Cc: <directors@omadhina.net> Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Dear Co-Chairs, the case does not pertain to .NK (which does no exist) but to .KP, .IR and .SY. Does not pertain to gTLDs but ccTLDs. Does not pertain to Registrars but to the ccTLD Managers. Does not pertain to change the ccTLD Manager per se but to attachment of an asset to satisfy a judgement of same court (which might, or might not, lead to a change in the root zone). Does not predict at all what other courts will do, because it focuses quite narrowly on a technicality of DC law. As you know, if there is no Federal Law on an issue, a Federal Court has to use the State Law of the State it finds itself. And the judge decided that, as pleaded, the ccTLDs are not subject to attachment under DC law and did not decide anything further. My understanding is that other States have other Laws. I have now read the gentleman's blog entries (and some others) which lead me to the conclusion that I will probably not read (m)any more. His notion that a ccTLD belongs (in the sense of property) to a country (as in an entity) by default, shows a worrisome lack of depth, even though in these three particular instances a case can be made that the owners are state entities, and it would follow as far as attempts of satisfying an existing judgement against the three countries are concerned they would seem to be legitimate targets. The matter at hand, is under appeal, by the way, which may become a Stress Test of its own. el -- Sent from Dr Lisse's iPad mini On Apr 6, 2015, at 02:21, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: Dear Eberhard I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. :) In any event, a link to the district court decision is here: https://www.icann.org/en/system/files/files/order-memo-granting-motion-to-qu.... Not exactly on point, but indicative, in my view, of the unlikelihood of US courts interfering …. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...> <image001.jpg> From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 5, 2015 2:58 PM To: CCWG Accountability Cc: directors@omadhina.net <mailto:directors@omadhina.net> Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Paul, as an aficionado of court judgements, could you kindly point me towards the one you are aware of, below? el -- Sent from Dr Lisse's iPad mini On Apr 5, 2015, at 18:03, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth. Paul Paul Rosenzweig [...]
Dear Eberhard
I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. J
Paul, Your blog posts, of course, are or should be required reading for all earthlings. We may just need to require them to be placed on the home page of all internet users in the next go round of contracts. ;) While, as you point out, the USA has been a good steward in relation to allowing gTld'd from countries it has blacklisted in other venues to exist it's recent action towards the Democratic People's Republic of Korea gives concern. According to the New York Times ( http://www.nytimes.com/2014/12/21/world/asia/us-asks-china-to-help-rein-in-k... ) the United States government asked China to "block North Koreas" access to the Internet". No, the US did not remove .kp from the root, the utility of doing so being questionable due to the small DPRK presence at that location, but an attempt to cut an entire nation off of the Internet by the country where the root zone file is located and controlled is worrisome. It opens the question that when freed from its current stewardship role will the US be more aggressive in asserting its perceived self interest in matters online? I don't have the answer to that question, I merely raise it with some concern. Sent from my iPad
On Apr 6, 2015, at 2:21 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Eberhard
I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. J In any event, a link to the district court decision is here: https://www.icann.org/en/system/files/files/order-memo-granting-motion-to-qu.... Not exactly on point, but indicative, in my view, of the unlikelihood of US courts interfering ….
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key <image001.jpg>
From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 5, 2015 2:58 PM To: CCWG Accountability Cc: directors@omadhina.net Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Paul,
as an aficionado of court judgements, could you kindly point me towards the one you are aware of, below?
el
-- Sent from Dr Lisse's iPad mini
On Apr 5, 2015, at 18:03, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth.
Paul
Paul Rosenzweig
[...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Assuming the NYT report to be true (which I think is not necessarily so), you are, to be sure, correct. But that of course is different from the legal/jurisdictional question we are considering. It relates to the public diplomacy of nation states and nothing that I can see about ICANN’s place of incorporation bears on the issue. As to your broader question – I imagine the answer will be “yes.” Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...> From: Edward Morris [mailto:egmorris1@toast.net] Sent: Monday, April 6, 2015 7:20 AM To: Paul Rosenzweig Cc: Dr Eberhard W Lisse; CCWG Accountability; directors@omadhina.net Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Dear Eberhard I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. J Paul, Your blog posts, of course, are or should be required reading for all earthlings. We may just need to require them to be placed on the home page of all internet users in the next go round of contracts. ;) While, as you point out, the USA has been a good steward in relation to allowing gTld'd from countries it has blacklisted in other venues to exist it's recent action towards the Democratic People's Republic of Korea gives concern. According to the New York Times ( http://www.nytimes.com/2014/12/21/world/asia/us-asks-china-to-help-rein-in-k... ) the United States government asked China to "block North Koreas" access to the Internet". No, the US did not remove .kp from the root, the utility of doing so being questionable due to the small DPRK presence at that location, but an attempt to cut an entire nation off of the Internet by the country where the root zone file is located and controlled is worrisome. It opens the question that when freed from its current stewardship role will the US be more aggressive in asserting its perceived self interest in matters online? I don't have the answer to that question, I merely raise it with some concern. Sent from my iPad On Apr 6, 2015, at 2:21 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: Dear Eberhard I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. :) In any event, a link to the district court decision is here: https://www.icann.org/en/system/files/files/order-memo-granting-motion-to-qu.... Not exactly on point, but indicative, in my view, of the unlikelihood of US courts interfering …. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...> <image001.jpg> From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 5, 2015 2:58 PM To: CCWG Accountability Cc: directors@omadhina.net <mailto:directors@omadhina.net> Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March Paul, as an aficionado of court judgements, could you kindly point me towards the one you are aware of, below? el -- Sent from Dr Lisse's iPad mini On Apr 5, 2015, at 18:03, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth. Paul Paul Rosenzweig [...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Paul, I agree with you on both accounts. I also see no reason at this point to assume that any other jurisdiction would be better than California as a location for ICANN's incorporation. Ed Sent from my iPhone
On Apr 6, 2015, at 1:38 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Assuming the NYT report to be true (which I think is not necessarily so), you are, to be sure, correct. But that of course is different from the legal/jurisdictional question we are considering. It relates to the public diplomacy of nation states and nothing that I can see about ICANN’s place of incorporation bears on the issue. As to your broader question – I imagine the answer will be “yes.”
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key <image001.jpg>
From: Edward Morris [mailto:egmorris1@toast.net] Sent: Monday, April 6, 2015 7:20 AM To: Paul Rosenzweig Cc: Dr Eberhard W Lisse; CCWG Accountability; directors@omadhina.net Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Dear Eberhard
I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. J
Paul,
Your blog posts, of course, are or should be required reading for all earthlings. We may just need to require them to be placed on the home page of all internet users in the next go round of contracts. ;)
While, as you point out, the USA has been a good steward in relation to allowing gTld'd from countries it has blacklisted in other venues to exist it's recent action towards the Democratic People's Republic of Korea gives concern. According to the New York Times ( http://www.nytimes.com/2014/12/21/world/asia/us-asks-china-to-help-rein-in-k... ) the United States government asked China to "block North Koreas" access to the Internet". No, the US did not remove .kp from the root, the utility of doing so being questionable due to the small DPRK presence at that location, but an attempt to cut an entire nation off of the Internet by the country where the root zone file is located and controlled is worrisome. It opens the question that when freed from its current stewardship role will the US be more aggressive in asserting its perceived self interest in matters online? I don't have the answer to that question, I merely raise it with some concern.
Sent from my iPad
On Apr 6, 2015, at 2:21 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Eberhard
I am shocked and dismayed that you don’t read all of my blog posts on the Lawfare Blog, where I wrote all about it …. J In any event, a link to the district court decision is here: https://www.icann.org/en/system/files/files/order-memo-granting-motion-to-qu.... Not exactly on point, but indicative, in my view, of the unlikelihood of US courts interfering ….
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key <image001.jpg>
From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 5, 2015 2:58 PM To: CCWG Accountability Cc: directors@omadhina.net Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March
Paul,
as an aficionado of court judgements, could you kindly point me towards the one you are aware of, below?
el
-- Sent from Dr Lisse's iPad mini
On Apr 5, 2015, at 18:03, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, if we are going to have a discussion of jurisdiction it at least needs to be based on facts. Every country on your list that has applied for a gTLD has been granted one, not to mention many others, like North Korea, including all countries on any list maintained by the US government (and, I might add, the UN) of countries subject to sanction. The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral action to divest countries of the gTLDs is pure myth.
Paul
Paul Rosenzweig
[...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Co-chairs, this has nothing to do with ICANN accountability. There is no ccNSO policy nor indeed ICANN policy to remove a ccTLD from the root, nor even one to retire one in case of the ISO code no longer being used. Nobody has ever thought about the USG even contemplating modifying the root unilaterally. If only if it ever did the whole house of cards would collapse. Sanctions are Sanctions. Whether they work, or whether one agrees with them. Never mind that one can not "cut an entire nation off of the Internet" one can at best cut the IP links that you know of. As if that would deter anyone seriously determined... Fortunately one does not have to know any details in order to participate here. el -- Sent from Dr Lisse's iPad mini
On Apr 6, 2015, at 12:20, Edward Morris <egmorris1@toast.net> wrote:
[...]
While, as you point out, the USA has been a good steward in relation to allowing gTld'd from countries it has blacklisted in other venues to exist it's recent action towards the Democratic People's Republic of Korea gives concern. According to the New York Times ( http://www.nytimes.com/2014/12/21/world/asia/us-asks-china-to-help-rein-in-k... ) the United States government asked China to "block North Koreas" access to the Internet". No, the US did not remove .kp from the root, the utility of doing so being questionable due to the small DPRK presence at that location, but an attempt to cut an entire nation off of the Internet by the country where the root zone file is located and controlled is worrisome. It opens the question that when freed from its current stewardship role will the US be more aggressive in asserting its perceived self interest in matters online? I don't have the answer to that question, I merely raise it with some concern.
Sent from my iPad
[...]
On 05/04/2015 19:03, Paul Rosenzweig wrote:
The one court case of which I’m aware rejected, pretty summarily, an effort to force ICANN to change the .nk gTLD registrar.
.KP http://www.iana.org/domains/root/db/kp.html Kind regards, Olivier
participants (13)
-
Avri Doria -
Brenda Brewer -
Bruce Tonkin -
Carlos Raúl Gutiérrez -
Carrie Devorah -
Dr Eberhard W Lisse -
Edward Morris -
Greg Shatan -
McAuley, David -
Olivier MJ Crepin-Leblond -
parminder -
Paul Rosenzweig -
Phil Corwin