+1 On 15-Jan-16 12:03, Niels ten Oever wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

...

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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+1. The CCWG-A process has to mean, at a minimum, that a consensus view of the group that our lawyers say is legal should be adopted. 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 -----Original Message----- From: Avri Doria [mailto:avri@acm.org] Sent: Friday, January 15, 2016 12:12 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Recommendation 6 - Human Rights - 1st reading conclusions +1 On 15-Jan-16 12:03, Niels ten Oever wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

...

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others! Best, Robin

On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists@nielstenoever.net> wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

...

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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Hi, Was also noticing how little time we spend stepping through all the comments and answering them. Was wondering how we were coming to consensus before having done so. Don't wee need to have a response for all the comments on this draft? Given that we are using the process we are using, perhaps for each recommendation we are approaching consensus on we should check against the comments to see what we may be missing. Each recommendation as it nears completion could be taken by a few volunteers and checked against the comments on that recommendation. These small teams could take responsibility for drafting the responses as well. I do not dispute the importance of coming to agreement with the Board, but we must also deal with the rest of the comments in an proper manner. Especially on areas where finding an agreement point with the Board is challenging, the comments of the community can give us direction and an sasist. avri On 15-Jan-16 18:50, Robin Gross wrote:

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others!

Best, Robin

...

On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists@nielstenoever.net> wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

...

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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Some facts: it wasn’t only the board who expressed concerns: some other comments did on the call, there were different views expressed: some were for option A, others for option B and most for option C Option C is a compromise between A and B Other facts: the issue of Human rights was raised at the beginning of our works, and the position of the CCWG members was « since ICANN is about names and numbers, and has nothing to do with the content, no need to address this issue ». It was raised again I think in Paris meeting, and the decision was to address it in work stream 2. and under the insistence of some, the CCWG decided to have a very high level mention on the issue in the proposal of Work Stream 1. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

Le 16 janv. 2016 à 20:04, Schaefer, Brett <Brett.Schaefer@heritage.org> a écrit :

Agree with this. In addition to the Board's comments being the focus for the rec discussions (at least it appears that way to me) it seems like unless a comment is raised during the Adobe it is considered resolved. Not all commenters participate in the Adobe chats, but that should not mean their comments should be dismissed or downplayed.

__________

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <http://heritage.org/><http://heritage.org/ <http://heritage.org/>>

On Jan 16, 2016, at 3:11 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org><mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:

Hi,

Was also noticing how little time we spend stepping through all the comments and answering them. Was wondering how we were coming to consensus before having done so.

Don't wee need to have a response for all the comments on this draft? Given that we are using the process we are using, perhaps for each recommendation we are approaching consensus on we should check against the comments to see what we may be missing. Each recommendation as it nears completion could be taken by a few volunteers and checked against the comments on that recommendation. These small teams could take responsibility for drafting the responses as well.

I do not dispute the importance of coming to agreement with the Board, but we must also deal with the rest of the comments in an proper manner. Especially on areas where finding an agreement point with the Board is challenging, the comments of the community can give us direction and an sasist.

avri

On 15-Jan-16 18:50, Robin Gross wrote:

...

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others!

Best, Robin

...

On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net><mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>>> wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

...

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

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Exactly. This is why it has to be included. On 16/01/16 23:14, Avri Doria wrote:

Hi,

I had understood that much of the opposition expressed by those supporting B had to do with the fear of legal action. Since that fear seems not to be fact based, I was thinking some of that opposition has been answered.

There is also the fact that with the departure of NTIA we have no backstop for the human rights obligations of the open internet without declaring a corporate commitment to human rights. This is not one of those nice to have Accountability changes made while there is a chance. This is a direct necessity based on losing the governmental backstop, given their obligation for human rights (whatever we think of their implementation of their governmental responsibilities).

avri

On 16-Jan-16 15:59, Tijani BEN JEMAA wrote:

...

Some facts:

* it wasn’t only the board who expressed concerns: some other comments did * on the call, there were different views expressed: some were for option A, others for option B and most for option C * Option C is a compromise between A and B

Other facts:

* the issue of Human rights was raised at the beginning of our works, and the position of the CCWG members was « since ICANN is about names and numbers, and has nothing to do with the content, no need to address this issue ». * It was raised again I think in Paris meeting, and the decision was to address it in work stream 2. and under the insistence of some, the CCWG decided to have a very high level mention on the issue in the proposal of Work Stream 1.

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

...

Le 16 janv. 2016 à 20:04, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> a écrit :

Agree with this. In addition to the Board's comments being the focus for the rec discussions (at least it appears that way to me) it seems like unless a comment is raised during the Adobe it is considered resolved. Not all commenters participate in the Adobe chats, but that should not mean their comments should be dismissed or downplayed.

__________

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <http://heritage.org/><http://heritage.org/>

On Jan 16, 2016, at 3:11 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org><mailto:avri@acm.org>> wrote:

Hi,

Was also noticing how little time we spend stepping through all the comments and answering them. Was wondering how we were coming to consensus before having done so.

Don't wee need to have a response for all the comments on this draft? Given that we are using the process we are using, perhaps for each recommendation we are approaching consensus on we should check against the comments to see what we may be missing. Each recommendation as it nears completion could be taken by a few volunteers and checked against the comments on that recommendation. These small teams could take responsibility for drafting the responses as well.

I do not dispute the importance of coming to agreement with the Board, but we must also deal with the rest of the comments in an proper manner. Especially on areas where finding an agreement point with the Board is challenging, the comments of the community can give us direction and an sasist.

avri

On 15-Jan-16 18:50, Robin Gross wrote:

...

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others!

Best, Robin

...

On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net><mailto:lists@nielstenoever.net>> wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

...

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org><mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps...>

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <http://www.article19.org/><http://www.article19.org <http://www.article19.org/>>

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The CCWG-Accountability sought legal advice on whether, upon the termination of the IANA Functions Contract between ICANN and the NTIA, ICANN’s specific Human Rights obligations could be called into question. It was found that, upon termination of the Contract, there would be no significant impact on ICANN’s Human Rights obligations. ----------------------------------------------------------------------------- Tijani BEN JEMAA Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

Le 17 janv. 2016 à 00:14, Avri Doria <avri@acm.org> a écrit :

Hi,

I had understood that much of the opposition expressed by those supporting B had to do with the fear of legal action. Since that fear seems not to be fact based, I was thinking some of that opposition has been answered.

There is also the fact that with the departure of NTIA we have no backstop for the human rights obligations of the open internet without declaring a corporate commitment to human rights. This is not one of those nice to have Accountability changes made while there is a chance. This is a direct necessity based on losing the governmental backstop, given their obligation for human rights (whatever we think of their implementation of their governmental responsibilities).

avri

On 16-Jan-16 15:59, Tijani BEN JEMAA wrote:

...

Some facts:

* it wasn’t only the board who expressed concerns: some other comments did * on the call, there were different views expressed: some were for option A, others for option B and most for option C * Option C is a compromise between A and B

Other facts:

* the issue of Human rights was raised at the beginning of our works, and the position of the CCWG members was « since ICANN is about names and numbers, and has nothing to do with the content, no need to address this issue ». * It was raised again I think in Paris meeting, and the decision was to address it in work stream 2. and under the insistence of some, the CCWG decided to have a very high level mention on the issue in the proposal of Work Stream 1.

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

...

Le 16 janv. 2016 à 20:04, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org> <mailto:Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>>> a écrit :

Agree with this. In addition to the Board's comments being the focus for the rec discussions (at least it appears that way to me) it seems like unless a comment is raised during the Adobe it is considered resolved. Not all commenters participate in the Adobe chats, but that should not mean their comments should be dismissed or downplayed.

__________

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <http://heritage.org/> <http://heritage.org/ <http://heritage.org/>><http://heritage.org/ <http://heritage.org/>>

On Jan 16, 2016, at 3:11 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>><mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:

Hi,

Was also noticing how little time we spend stepping through all the comments and answering them. Was wondering how we were coming to consensus before having done so.

Don't wee need to have a response for all the comments on this draft? Given that we are using the process we are using, perhaps for each recommendation we are approaching consensus on we should check against the comments to see what we may be missing. Each recommendation as it nears completion could be taken by a few volunteers and checked against the comments on that recommendation. These small teams could take responsibility for drafting the responses as well.

I do not dispute the importance of coming to agreement with the Board, but we must also deal with the rest of the comments in an proper manner. Especially on areas where finding an agreement point with the Board is challenging, the comments of the community can give us direction and an sasist.

avri

On 15-Jan-16 18:50, Robin Gross wrote:

...

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others!

Best, Robin

...

On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net> <mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>><mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>>> wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

...

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

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-- Niels ten Oever Head of Digital

Article 19 www.article19.org <http://www.article19.org/> <http://www.article19.org/ <http://www.article19.org/>><http://www.article19.org <http://www.article19.org/> <http://www.article19.org/ <http://www.article19.org/>>>

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Avri, You know that I’m not against including ICANN human rights commitment into its bylaw assuming that it will be limited to the ICANN mission. I don’t understand that we want to include such commitments in the bylaws before we define the interpretation that will insure that they will only be applied according to the limited ICANN mission. Our agreement was to have a high level mention about those commitments in the CCWG proposal for Work Stream 1, and address the whole issue in Work Stream 2 to be included in the bylaws (commitments + interpretation). ----------------------------------------------------------------------------- Tijani BEN JEMAA Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

Le 17 janv. 2016 à 18:58, Avri Doria <avri@acm.org> a écrit :

Hi,

There would no legal difference in respect of the laws they need to obey.

There will be a difference in the set of considerations that could be brought into consideration at the time of IANA contract renewal. The contract renewal is a checkpoint when NTIA can insure that ICANN is meeting all of its obligations including the various freedoms guaranteed by the government's HR obligations, not just the legal ones. rember the consultations that went on last time. And remmeber that ICANN had to fix its application in order to gain approval. With transition we lose this checkpoint and this loss needs something to take its place. In regard to HR issues, corporate responsibility is the best way to maintain that commitment. A simple commitment to respect human rights is the first step toward ICANN accepting its corporate responsibilities on this and other issues. Choice A is the closest we were able to get to making a simple first baby step toward ICANN accepting corporate responsibilities.

avri

On 17-Jan-16 12:05, Tijani BEN JEMAA wrote:

...

The CCWG-Accountability sought legal advice on whether, upon the termination of the IANA Functions Contract between ICANN and the NTIA, ICANN’s specific Human Rights obligations could be called into question. It was found that, upon termination of the Contract, there would be no significant impact on ICANN’s Human Rights obligations.

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

...

Le 17 janv. 2016 à 00:14, Avri Doria <avri@acm.org <mailto:avri@acm.org <mailto:avri@acm.org>>> a écrit :

Hi,

I had understood that much of the opposition expressed by those supporting B had to do with the fear of legal action. Since that fear seems not to be fact based, I was thinking some of that opposition has been answered.

There is also the fact that with the departure of NTIA we have no backstop for the human rights obligations of the open internet without declaring a corporate commitment to human rights. This is not one of those nice to have Accountability changes made while there is a chance. This is a direct necessity based on losing the governmental backstop, given their obligation for human rights (whatever we think of their implementation of their governmental responsibilities).

avri

On 16-Jan-16 15:59, Tijani BEN JEMAA wrote:

...

Some facts:

* it wasn’t only the board who expressed concerns: some other comments did * on the call, there were different views expressed: some were for option A, others for option B and most for option C * Option C is a compromise between A and B

Other facts:

* the issue of Human rights was raised at the beginning of our works, and the position of the CCWG members was « since ICANN is about names and numbers, and has nothing to do with the content, no need to address this issue ». * It was raised again I think in Paris meeting, and the decision was to address it in work stream 2. and under the insistence of some, the CCWG decided to have a very high level mention on the issue in the proposal of Work Stream 1.

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

...

Le 16 janv. 2016 à 20:04, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org> <mailto:Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> <mailto:Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>>> a écrit :

Agree with this. In addition to the Board's comments being the focus for the rec discussions (at least it appears that way to me) it seems like unless a comment is raised during the Adobe it is considered resolved. Not all commenters participate in the Adobe chats, but that should not mean their comments should be dismissed or downplayed.

__________

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <http://heritage.org/> <http://heritage.org/ <http://heritage.org/>> <http://heritage.org/ <http://heritage.org/>><http://heritage.org/ <http://heritage.org/>>

On Jan 16, 2016, at 3:11 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>> <mailto:avri@acm.org <mailto:avri@acm.org>><mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:

Hi,

Was also noticing how little time we spend stepping through all the comments and answering them. Was wondering how we were coming to consensus before having done so.

Don't wee need to have a response for all the comments on this draft? Given that we are using the process we are using, perhaps for each recommendation we are approaching consensus on we should check against the comments to see what we may be missing. Each recommendation as it nears completion could be taken by a few volunteers and checked against the comments on that recommendation. These small teams could take responsibility for drafting the responses as well.

I do not dispute the importance of coming to agreement with the Board, but we must also deal with the rest of the comments in an proper manner. Especially on areas where finding an agreement point with the Board is challenging, the comments of the community can give us direction and an sasist.

avri

On 15-Jan-16 18:50, Robin Gross wrote:

...

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others!

Best, Robin

> On Jan 15, 2016, at 9:03 AM, Niels ten Oever > <lists@nielstenoever.net <mailto:lists@nielstenoever.net> <mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>> > <mailto:lists@nielstenoever.net><mailto:lists@nielstenoever.net>> > wrote: > > Dear co-chairs (an all), > > I am quite surprised by your proposal to invite members and board to > consider option C since WP4 and CCWG achieved consensus on option A, > which was reinforced by the independent lawyers advice. I really > don't > think this work should be disregarded. > > The ICANN lawyers did not provide examples, case-law or other > documents > to outline any risk. So even though I am very willing to discuss, > I see > no reason to only consider option C and I am very surprised that > you as > co-chairs argue for that option even though consensus was reached > earlier on option A. As I said in my previous email, it is not > reasonable to consider option C before we agree that we won't proceed > with the option A. > > All the best, > > Niels > > On 01/15/2016 05:26 PM, Alice Jansen wrote: >> _Sent on behalf of CoChairs _ >> _ >> _ >> Please find below the main conclusions of our deliberations during >> call >> #76. The updated document is attached. >> >> 1.Agreement to rely on target dates instead of hard deadlines, >> in line >> with general approach agreed for WS2 >> 2. Discussed comments (including Icann Board, RrSG…) requesting >> that the >> inclusion of human rights language into the bylaws be delayed >> until the >> proposed framework of interpretation was completed or even only be >> considered in Work Stream 2. >> >> a.Independent lawyer input has been provided and concludes : While >> the addition of the proposed human rights bylaw provision should not >> increase the exposure of ICANN to legal liability, we recognize that >> special interest groups and individuals might seek to bring >> non-meritorious claims, but the risk of meritless claims is already >> a risk that ICANN faces. >> b. Board clarified that concern included risk that IRP would >> interpret the Bylaw language and create “case law policy” while the >> FoI is finalized. >> c. Consider Lawyer input suggestion as follows : >> >> i. “ /expressly limiting the jurisdiction of any internal >> dispute resolution systems within ICANN (such as the IRP) to >> preclude claims of human rights violations that are not grounded >> in a specific violation of an applicable law”./ >> >> 3. Members and Board are invited to consider whether option c) >> could be >> an acceptable way forward >> >> a. Confirm recommendation bylaw language as part of WS1, despite >> concerns expressed >> b. Defer bylaw language adoption to WS2, when FoI is finalized >> >> c. Adopt adjusted bylaw language as part of WS1 to clarify that it >> can only be enforced or used in an IRP once the FoI is approved >> (Such as : “This articles becomes effective 30 days after approval >> of the FoI…”). >> >> >> Second reading is planned for Tuesday, 19 January. >> >> Best regards >> >> Mathieu, Thomas, León >> >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >> <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> >> <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>><mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps...> >> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>> >> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>> >> > -- > Niels ten Oever > Head of Digital > > Article 19 > www.article19.org <http://www.article19.org/> <http://www.article19.org/ <http://www.article19.org/>> > <http://www.article19.org/ <http://www.article19.org/>><http://www.article19.org <http://www.article19.org/> > <http://www.article19.org/ <http://www.article19.org/>> > <http://www.article19.org/ <http://www.article19.org/>>> > > PGP fingerprint 8D9F C567 BEE4 A431 56C4 > 678B 08B5 A0F2 636D 68E9 > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>><mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps...> > <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>> > <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>> > _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>><mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps...> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>>

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The Third Draft Proposal is actually ambiguous on the issue of implementing the Human Rights Bylaw, and the Proposal is not accurately represented by Alternative A. The Third Draft Proposal includes a transitional Bylaw, which states ""Bylaw xx will be implemented in accordance with the framework of interpretation to be developed as part of “Work Stream 2”." There is no further discussion of this language in the Proposal or Annex. The practical effect of this language is that the Human Rights bylaw cannot be implemented until the framework of interpretation is developed in WS2. The bylaw cannot be implemented any earlier than that, because it would then be impossible to implement the bylaw "in accordance with the framework of interpretation." As such, Alternative C is actually closer to the intent of the Third Draft than Alternative A. Alternative A is essentially incomplete, because it does not take the transitional bylaw into account. Greg On Sun, Jan 17, 2016 at 4:16 PM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:

"Our" agreement? Who is "we"?

Never mind that ALAC can have their mind changed for them any time.

el

-- Sent from Dr Lisse's iPad mini 4

On 17 Jan 2016, at 22:55, Tijani BEN JEMAA <tijani.benjemaa@benjemaa.com> wrote:

Avri,

You know that I’m not against including ICANN human rights commitment into its bylaw assuming that it will be limited to the ICANN mission. I don’t understand that we want to include such commitments in the bylaws before we define the interpretation that will insure that they will only be applied according to the limited ICANN mission.

Our agreement was to have a high level mention about those commitments in the CCWG proposal for Work Stream 1, and address the whole issue in Work Stream 2 to be included in the bylaws (commitments + interpretation).

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (*FMAI*) Phone: +216 98 330 114 +216 52 385 114

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Le 17 janv. 2016 à 18:58, Avri Doria <avri@acm.org> a écrit :

Hi,

There would no legal difference in respect of the laws they need to obey.

There will be a difference in the set of considerations that could be brought into consideration at the time of IANA contract renewal. The contract renewal is a checkpoint when NTIA can insure that ICANN is meeting all of its obligations including the various freedoms guaranteed by the government's HR obligations, not just the legal ones. rember the consultations that went on last time. And remmeber that ICANN had to fix its application in order to gain approval. With transition we lose this checkpoint and this loss needs something to take its place. In regard to HR issues, corporate responsibility is the best way to maintain that commitment. A simple commitment to respect human rights is the first step toward ICANN accepting its corporate responsibilities on this and other issues. Choice A is the closest we were able to get to making a simple first baby step toward ICANN accepting corporate responsibilities.

avri

On 17-Jan-16 12:05, Tijani BEN JEMAA wrote:

The CCWG-Accountability sought legal advice on whether, upon the termination of the IANA Functions Contract between ICANN and the NTIA, ICANN’s specific Human Rights obligations could be called into question. It was found that, upon termination of the Contract, there would be no significant impact on ICANN’s Human Rights obligations.

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (*FMAI*) Phone: +216 98 330 114 +216 52 385 114

-----------------------------------------------------------------------------

Le 17 janv. 2016 à 00:14, Avri Doria <avri@acm.org <mailto:avri@acm.org <avri@acm.org>>> a écrit :

Hi,

I had understood that much of the opposition expressed by those supporting B had to do with the fear of legal action. Since that fear seems not to be fact based, I was thinking some of that opposition has been answered.

There is also the fact that with the departure of NTIA we have no backstop for the human rights obligations of the open internet without declaring a corporate commitment to human rights. This is not one of those nice to have Accountability changes made while there is a chance. This is a direct necessity based on losing the governmental backstop, given their obligation for human rights (whatever we think of their implementation of their governmental responsibilities).

avri

On 16-Jan-16 15:59, Tijani BEN JEMAA wrote:

Some facts:

* it wasn’t only the board who expressed concerns: some other comments did * on the call, there were different views expressed: some were for option A, others for option B and most for option C * Option C is a compromise between A and B

Other facts:

* the issue of Human rights was raised at the beginning of our works, and the position of the CCWG members was « since ICANN is about names and numbers, and has nothing to do with the content, no need to address this issue ». * It was raised again I think in Paris meeting, and the decision was to address it in work stream 2. and under the insistence of some, the CCWG decided to have a very high level mention on the issue in the proposal of Work Stream 1.

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114

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Le 16 janv. 2016 à 20:04, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org <Brett.Schaefer@heritage.org>> < mailto:Brett.Schaefer@heritage.org <Brett.Schaefer@heritage.org>>> a écrit :

Agree with this. In addition to the Board's comments being the focus for the rec discussions (at least it appears that way to me) it seems like unless a comment is raised during the Adobe it is considered resolved. Not all commenters participate in the Adobe chats, but that should not mean their comments should be dismissed or downplayed.

__________

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <http://heritage.org/> <http://heritage.org/><http://heritage.org/>

On Jan 16, 2016, at 3:11 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org <avri@acm.org>> <mailto:avri@acm.org <avri@acm.org>><mailto:avri@acm.org <avri@acm.org>>> wrote:

Hi,

Was also noticing how little time we spend stepping through all the comments and answering them. Was wondering how we were coming to consensus before having done so.

Don't wee need to have a response for all the comments on this draft? Given that we are using the process we are using, perhaps for each recommendation we are approaching consensus on we should check against the comments to see what we may be missing. Each recommendation as it nears completion could be taken by a few volunteers and checked against the comments on that recommendation. These small teams could take responsibility for drafting the responses as well.

I do not dispute the importance of coming to agreement with the Board, but we must also deal with the rest of the comments in an proper manner. Especially on areas where finding an agreement point with the Board is challenging, the comments of the community can give us direction and an sasist.

avri

On 15-Jan-16 18:50, Robin Gross wrote:

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others!

Best, Robin

On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net <lists@nielstenoever.net>> <mailto:lists@nielstenoever.net <lists@nielstenoever.net>>< mailto:lists@nielstenoever.net <lists@nielstenoever.net>>> wrote:

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A.

All the best,

Niels

On 01/15/2016 05:26 PM, Alice Jansen wrote:

_Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached.

1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2.

a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows :

i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./

3. Members and Board are invited to consider whether option c) could be an acceptable way forward

a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized

c. Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).

Second reading is planned for Tuesday, 19 January.

Best regards

Mathieu, Thomas, León

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On 17-Jan-16 11:52, Schaefer, Brett wrote:

Just to be clear, I was speaking generally, not just on the HR rec.

On the subject of processing all comments, I too believe we need to do this on all recommendations. Even the ones where I am possibly in a minority position. I think Kavouss is right, we need to have a clear picture of the pros and cons on all the recommendation, i.e. scorecards. And then need to work through them. I disagree that the Board comments are somehow a collective viewpoint that is more equal that the other collective and individual viewpoints. Until they actually weight the results of the CCWG, they will not have the bottom-up multistakeholder take on the issue that our processes demand. At the moment, I see the Board view as advisory, giving us a hint of what their decisions might be at the end of the day. We need to take their advice seriously, just as we need to take all advice and opinion as expressed, or yet to be expressed, seriously. Only once we have finished the work and enter the next stage of the process, will we be in a situation of negotiation over the content of their response to the community's proposal. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus