Dear Grec If a SO and/ AC has decided for certain Model it is neither CCWG nor the Lawyers to provide convincing reasons No penny is to be authorised to the lawyers. This is a democratic process and no pressure from anybody Regards Kavouss Sent from my iPhone

On 7 Jul 2015, at 06:34, Greg Shatan <gregshatanipc@gmail.com> wrote:

Alan,

What are the specific reasons that the ALAC would opt not to be a member, if a membership model were adopted? Have our lawyers been asked to respond to these reasons?

Greg

...

On Tue, Jul 7, 2015 at 12:00 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: Among the problems with Membership is that there are strong indications that several AC/SOs will not sign on as members (the ALAC is among them) leaving the possibility of very few members, and those members (or quite possibly member) would have the statutory power to unilaterally and irreversibly dissolve the corporation, and the IANA Names stewardship along with it.

You might ask, "Why would they do that?" and I have no clue. But if we are determined to consider world with a rogue Board with not a single Board member who is objecting, then a rogue SO cannot be off the radar either.

Alan

At 06/07/2015 09:01 PM, you wrote:

...

Hello Avri,

I believe membership raises the issues of accountability to the full diversity of stakeholders to a much higher threshold, including the issue of the degree to which ICANN is accountable to stakeholders not included among our SG/C/RALO/ALS / as well as among parrticpating CCs and govts.

Please, if possible, raise your concerns stating fact rather than belief. Maybe there is something I have missed. There is absolutely no difference in the openness to non ICANN stakeholders between the empowered membership and empowered designator models. At least I don't see any. Both are based upon the current SOAC's. If there is a difference in this area I need to and want to be educated. Please respond with specific and detailed instances or examples of why what you claim is true is. Vague generalities are not particularly helpful. Again, I am open to be educated and persuaded but with substantive fact rather than vague as yet unsubstantiated beliefs.

No model is as open to non SOAC's as is Malcolm's proposal for individual membership. That, again, is a membership model. Do you support this open membership model and if not why not? Would you prefer other models to be looked at that are not based upon the SOAC's? I think that would be a very reasonable position and one I certainly am open to supporting if a workable model would be proposed. As yet I have not seen one. Have you? Should we try to find one?

I think enough of the comments bring out questions of accountability in a mebership organization to make the membership option less than optimal.

What comments are you referring to? Certainly not the public comments which were basically supportive of membership. Are these comments you refer to based upon vague generalities or specific problems? If there are specific problems what specifically are they? Should we not determine whether there are solutions to those problems rather than just dismissing the model outright? If not, what are your views as to the ultimate apparent unenforceability of the designator model in certain areas? Do you disagree with Paul Rosenzweig when he states that "a direct community veto of budget and strategic plan remains essential to accountability"? If not, what do you propose to do in these areas without membership. Should we simply forget them?

I do think there may be another option or two out there and hopefully working with our counsel we'll find them.

In the interim, I really am looking to be educated. No one has taught me more about ICANN since I became involved in it than you Avri. I'm just not easily persuadable by vague opinions, I'm a fact based sort of guy. As this process has moved forward I've seen your views and positions change. To me, that is an admirable sign of someone truly looking for an optimal answer rather than one who is clinging to a defined position. I'm just having some trouble understanding, factually, the specific objections you are now raising about membership. I hope you can help me understand so I can better test and evaluate my own views..

Thanks,

Ed

On 06-Jul-15 19:05, Edward Morris wrote:

...

+1. Well said.

On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org < mailto:JZuck@actonline.org>> wrote:

Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles.

*From:* accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 6, 2015 3:50 PM *To:* Becky Burr *Cc:* accountability-cross-community@icann.org < mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

Hi Becky,

Thanks for asking, item 3 is actually in connection to the fact that such veto may not be possible without item 1(as I understood it) and that is why I said an indirect veto can happen not that I was entirely suggesting that those powers be off the table.

It seem however that folks are only looking at the powers and not at what it will take to have them.

By the way, I also did put in a reservation that we may not necessarily agree with those views but my concern is mainly that the ccwg does not spend so much time developing proposals that we know has certain implementation requirements that are not compatible with the ICANN community structure. I think we should learn from the the past (based on comments from the last PC) and utilize legal council and volunteer hours more effectively.

FWIW speaking as participant.

Regards

On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz < mailto:Becky.Burr@neustar.biz>> wrote:

Seun,

I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks.

Becky

J. Beckwith Burr

*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / becky.burr@neustar.biz < mailto:becky.burr@neustar.biz> / www.neustar.biz < http://www.neustar.biz>

*From: *Seun Ojedeji <seun.ojedeji@gmail.com < mailto:seun.ojedeji@gmail.com>> *Date: *Monday, July 6, 2015 at 11:09 AM *To: *Robin Gross <robin@ipjustice.org < mailto:robin@ipjustice.org>> *Cc: *Accountability Community < accountability-cross-community@icann.org < mailto:accountability-cross-community@icann.org>> *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

Hi,

I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:

- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable

- Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable

- Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)

Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet

Regards

On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org < mailto:robin@ipjustice.org>> wrote:

I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.

Thanks,

Robin

On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:

I agree. We should have the benefit of their thoughts.

Greg

On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz < mailto:jordan@internetnz.net.nz>> wrote:

Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...

Jordan

On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net < mailto:james@cyberinvasion.net>> wrote:

Hey Avri,

Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need.

But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.

Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it.

I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.

Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.

-James

On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org >> wrote:

Hi,

I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.

In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.

I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?

avri

ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.

On 06-Jul-15 05:07, James Gannon wrote:

I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 < https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag... > (I’m a glutton for punishment)

It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.

So my paraphrasing and overview is:

· Lawyers working hard on the models for us collaboratively between the two firms since BA

· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.

· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page

· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions

Note that the above is all my very condensed overview of the conversations.

It seemed like a productive call to me.

-James

*From:* accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org < mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

Carlos,

As the legal sub-team was disbanded, your guess is as good as mine.....

Greg

On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com < mailto:carlosraulg@gmail.com> < mailto:carlosraulg@gmail.com>> wrote:

Thank you Greg!

It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?

Best regards

Carlos Raúl Gutiérrez

+506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176>

Skype carlos.raulg

_________

Apartado 1571-1000

*COSTA RICA*

On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com < mailto:gregshatanipc@gmail.com> < mailto:gregshatanipc@gmail.com>> wrote:

Chris,

That was tried to some extent, at least in the CWG.

There are several substantial problems with that approach.

First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)

Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.

Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.

Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.

Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.

Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."

Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.

Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."

In sum, it might be a nice thought in theory, but it is no way a practical possibility.

Greg

On Sat, Jul 4, 2015 at 3:08 AM, CW Lists < lists@christopherwilkinson.eu < mailto:lists@christopherwilkinson.eu> < mailto:lists@christopherwilkinson.eu>> wrote:

Good morning:

I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.

CW

On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com < mailto:gregshatanipc@gmail.com> < mailto:gregshatanipc@gmail.com>> wrote:

Wolfgang,

To your first point, the billing rates were clearly stated in the law firms' engagement letters.

To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.

As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.

Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.

Greg

On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" < wolfgang.kleinwaechter@medienkomm.uni-halle.de < mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> < mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:

HI,

and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.

Wolfgang

-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org> < mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org < mailto:accountability-cross-community@icann.org> < mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.

I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?

Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.

Best, Robin

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The key to understanding is humility - my view !

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Hi Greg,

I believe you already got some response with regards to your question.
However I'd still suggest you have a look at PC submission of the
respective SO/AC for more info.

That said, I thought we have gotten passed membership after BA hence the
first item in the list of what I understood to be current status.

One of the summary I got from BA was that the "empowered SO/AC membership
model" and the "empowered SO/AC designator model" would be reviewed in
detail. Understanding the known challenges with membership route, I wonder
why we would be spending more legal hours on it after the ones already
spent till date. Nevertheless, some have said it's worth it which is fine
but do we need to again expand the list of models at this point? I don't
think so.

I guess it's safer for me to conclude that there is NO proposal on the
table at the moment. It is my hope that co-chairs would take note of the
following going forward:

- Be sensitive to possible journey that would take us through a tunnel that
we know what it's end will look like (because we already gone through that
tunnel in the past)
- Don't take silence on the list to mean consent
- Focus on goals and clarity on power priorities should be ensured
- Legal opinion is not always the implementable answer but the consensus
based non-legal ones can be more realistically implementable within this
context

Regards

Sent from Google nexus 4
kindly excuse brevity and typos.
Kavouss,

We need to understand the objections that any SO/AC has to a proposal on
the table to see if those objections can be dealt with.  If we don't
understand why there are concerns, we'll never resolve them.  There are
concerns around every model.

If a concern can be resolved by the lawyers, where there is a legal issue,
that is money well spent.

If any SO/AC has decided anything "for certain," we are in trouble.

As Jordan has said, everybody has to get out of their corners so that we
can come to resolution.

In any democratic process, there should be open and substantive debate, and
open-minded work toward resolving concerns.

I don't consider asking any SO/AC why they have taken a particular position
to be "pressure."  I consider it a necessity.  Hidden reasons or no reason
at all leave very little to work with when trying to solve problems.

Greg

On Tue, Jul 7, 2015 at 1:01 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com>
wrote:

> Dear Grec
> If a SO and/ AC has decided for certain
> Model it is neither CCWG nor the Lawyers to provide convincing reasons
> No penny is to be authorised to the lawyers.
> This is a democratic process and no pressure from anybody
> Regards
> Kavouss
>
> Sent from my iPhone
>
> On 7 Jul 2015, at 06:34, Greg Shatan <gregshatanipc@gmail.com> wrote:
>
> Alan,
>
> What are the specific reasons that the ALAC would opt not to be a member,
> if a membership model were adopted?  Have our lawyers been asked to respond
> to these reasons?
>
> Greg
>
> On Tue, Jul 7, 2015 at 12:00 AM, Alan Greenberg <alan.greenberg@mcgill.ca>
> wrote:
>
>>  Among the problems with Membership is that there are strong indications
>> that several AC/SOs will not sign on as members (the ALAC is among them)
>> leaving the possibility of very few members, and those members (or quite
>> possibly member) would have the statutory power to unilaterally and
>> irreversibly dissolve the corporation, and the IANA Names stewardship along
>> with it.
>>
>> You might ask, "Why would they do that?" and I have no clue. But if we
>> are determined to consider world with a rogue Board with not a single Board
>> member who is objecting, then a rogue SO cannot be off the radar either.
>>
>> Alan
>>
>>
>>
>> At 06/07/2015 09:01 PM, you wrote:
>>
>> Hello Avri,
>>
>>  I believe membership raises the issues of accountability to the full diversity
>> of stakeholders to a much higher threshold, including the issue of the
>> degree to which ICANN is accountable to stakeholders not included among
>> our SG/C/RALO/ALS / as well as among parrticpating CCs and govts.
>>
>>
>>
>> Please, if possible, raise your concerns stating fact rather than belief.
>> Maybe there is something I have missed. There is absolutely no difference
>> in the openness to non ICANN stakeholders between the empowered membership
>> and empowered designator models. At least I don't see any. Both are based
>> upon the current SOAC's. If there is a difference in this area  I need to
>> and want to be educated. Please respond with specific and detailed
>> instances or examples of why what you claim is true is. Vague generalities
>> are not particularly helpful. Again, I am open to be educated and persuaded
>> but with substantive fact rather than vague as yet unsubstantiated beliefs.
>>
>> No model is as open to non SOAC's as is Malcolm's proposal for individual
>> membership. That, again, is a membership model. Do you support this open
>> membership model and if not why not? Would you prefer other models to be
>> looked at that are not based upon the SOAC's? I think that would be a very
>> reasonable position and one I certainly am open to supporting if a workable
>> model would be proposed. As yet I have not seen one. Have you? Should we
>> try to find one?
>>   I think enough of the comments bring out questions of accountability
>> in a mebership organization to make the membership option less than
>> optimal.
>>
>>
>>
>> What comments are you referring to? Certainly not the public comments
>> which were basically supportive of membership. Are these comments you refer
>> to  based upon vague generalities or specific problems? If there are
>> specific problems what specifically are they? Should we not determine
>> whether there are solutions to those problems rather than just dismissing
>> the model outright? If not, what are your views as to the ultimate apparent
>> unenforceability of the designator model in certain areas? Do you disagree
>> with Paul Rosenzweig when he states that "a direct community veto of budget
>> and strategic plan remains essential to accountability"? If not, what do
>> you propose to do in these areas without membership. Should we simply
>> forget them?
>>
>> I do think there may be another option or two out there and hopefully
>> working with our counsel we'll find them.
>>
>> In the interim,  I really am looking to be educated. No one has taught me
>> more about ICANN since I became involved in it than you Avri. I'm just not
>> easily persuadable by vague opinions, I'm a fact based sort of guy. As this
>> process has moved forward I've seen your views and positions change. To me,
>> that is an admirable  sign of someone truly looking for an optimal answer
>> rather than one who is clinging to a defined position. I'm just having some
>> trouble understanding, factually,  the specific objections you are now
>> raising about membership. I hope you can help me understand so I can better
>> test and evaluate my own views..
>>
>> Thanks,
>>
>> Ed
>>
>>  On 06-Jul-15 19:05, Edward Morris wrote: > +1. Well said. > > > On Mon,
>> Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org > <
>> mailto:JZuck@actonline.org <JZuck@actonline.org>>> wrote: > >  Hmm. I
>> think it’s important to bear in mind that there was >  overwhelming
>> consensus among the public comments to support the >  membership model.
>> The detractors from the model, while important >  and perhaps critical,
>> are not in the majority. I’m not sure this >  process speaks to how we
>> better use counsel as much as how we >  achieve consensus on principles. >
>> > > > > > >  *From:* accountability-cross-community-bounces@icann.org >
>> < mailto:accountability-cross-community-bounces@icann.org
>> <accountability-cross-community-bounces@icann.org>> >  [mailto:
>> accountability-cross-community-bounces@icann.org >  <
>> mailto:accountability-cross-community-bounces@icann.org
>> <accountability-cross-community-bounces@icann.org>>] *On >  Behalf Of
>> *Seun Ojedeji >  *Sent:* Monday, July 6, 2015 3:50 PM >  *To:* Becky
>> Burr >  *Cc:* accountability-cross-community@icann.org >  <
>> mailto:accountability-cross-community@icann.org
>> <accountability-cross-community@icann.org>> >  *Subject:* Re:
>> [CCWG-ACCT] Who is managing the lawyers and what >  have they beenasked
>> to do? > > > >  Hi Becky, > >  Thanks for asking, item 3 is actually in
>> connection to the fact >  that such veto may not be possible without
>> item 1(as I understood >  it) and that is why I said an indirect veto
>> can happen not that I >  was entirely suggesting that those powers be
>> off the table. > >  It seem however that folks are only looking at the
>> powers and not >  at what it will take to have them. > >  By the way, I
>> also did put in a reservation that we may not >  necessarily agree with
>> those views but my concern is mainly that >  the ccwg does not spend so
>> much time developing proposals that we >  know has certain
>> implementation requirements that are not >  compatible with the ICANN
>> community structure. I think we should >  learn from the the past (based
>> on comments from the last PC) and >  utilize legal council and volunteer
>> hours more effectively. > >  FWIW speaking as participant. > >  Regards >
>> >  On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz >  <
>> mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>>> wrote: > >
>> Seun, > > > >       I am not sure why we would take direct budget/strat
>> plan veto >       off the table.  Could you explain? Thanks. > > > >
>> Becky > >       J. Beckwith Burr > >       *Neustar, Inc. /* Deputy
>> General Counsel and Chief Privacy Officer > >       1775 Pennsylvania
>> Avenue NW, Washington, DC 20006 > >       Office: + 1.202.533.2932
>> <tel:%2B%201.202.533.2932>  Mobile: >       +1.202.352.6367 >
>> <tel:%2B1.202.352.6367>  / becky.burr@neustar.biz >       <
>> mailto:becky.burr@neustar.biz <becky.burr@neustar.biz>> / www.neustar.biz >
>> < http://www.neustar.biz> > > > >       *From: *Seun Ojedeji <
>> seun.ojedeji@gmail.com >       < mailto:seun.ojedeji@gmail.com
>> <seun.ojedeji@gmail.com>>> >       *Date: *Monday, July 6, 2015 at 11:09
>> AM >       *To: *Robin Gross <robin@ipjustice.org >       <
>> mailto:robin@ipjustice.org <robin@ipjustice.org>>> >       *Cc:
>> *Accountability Community >       <
>> accountability-cross-community@icann.org >       <
>> mailto:accountability-cross-community@icann.org
>> <accountability-cross-community@icann.org>>> >       *Subject: *Re:
>> [CCWG-ACCT] Who is managing the lawyers and >       what have they
>> beenasked to do? > > > >       Hi, > >       I have no problem with
>> having a new proposal presented. >       However it is important that
>> there some adherence to basic >       principles on proposals that the
>> ccwg would not want to >       explore. Three areas comes to mind: > >
>> - Its my understanding that anything that will turn some/all >       of
>> the SO/AC to members and thereby exposing them to legal >
>> challenge is not acceptable > >       - Its my understanding that
>> anything that allows removal of >       individual board member without
>> the approval of the entire(or >       larger part) of the community is
>> not acceptable > >       - Its my understanding that a solution that
>> allows direct >       community veto on certain elements like budget,
>> strategic plan >       et all is not acceptable but an indirect
>> enforcement could be >       considered (i.e using a power to get
>> another power executed >       indirectly) > > > >       Some/none of
>> the above may be acceptable by us, but my point >       is that there
>> should be some focus going forward, especially >       if the target of
>> ICANN54 is to be meet > >       Regards > > > > > >       On Mon, Jul 6,
>> 2015 at 3:37 PM, Robin Gross >       <robin@ipjustice.org <
>> mailto:robin@ipjustice.org <robin@ipjustice.org>>> wrote: > >          I
>> would also like to hear what they propose at this >          stage.  I
>> really don't see how it could hurt to have >          another proposal
>> to consider.  Larry Strickling did say he >          wanted us to be
>> sure we examined all the options carefully. > > > >          Thanks, > >
>>      Robin > > > >          On Jul 6, 2015, at 7:32 AM, Greg Shatan
>> wrote: > > > >             I agree.  We should have the benefit of their
>> thoughts. > > > >             Greg > > > >             On Mon, Jul 6,
>> 2015 at 9:38 AM, Jordan Carter >             <jordan@internetnz.net.nz >
>>         < mailto:jordan@internetnz.net.nz <jordan@internetnz.net.nz>>>
>> wrote: > >                Well, I would really really like to see what
>> the >                creative thinking they have done has suggested. I >
>>            trust our ability as a group to make decisions, >
>>    and do not believe we should cut off input from >                any
>> direction... > > > >                Jordan > > > >                On 7
>> July 2015 at 01:13, James Gannon >                <
>> james@cyberinvasion.net >                < mailto:james@cyberinvasion.net
>> <james@cyberinvasion.net>>> wrote: > >                   Hey Avri, > > > >
>>               Yes the 3rd model was brought up, and the >
>>       lawyers feel that it might be a cleaner way >
>> for us to get the powers that we need. > >                   But without
>> a call from the CCWG to present it >                   they feel that
>> its not their position to >                   propose a model on their
>> own initiative. > > > >                   Personally i would like to see
>> what they have >                   come up with but the CCWG would need
>> to ask as >                   an overall group for the chairs to direct
>> them >                   to give some more information on the model if >
>>               we wanted it. > >                   I think if after we
>> hear from them on Tuesdays >                   call we still feel we
>> might have some >                   shortcomings that it might be the
>> time to ask >                   them about the 3rd option. > > > >
>>             Also +1 I think they are really enjoying the >
>>       work and are finding themselves getting more >
>> and more involved as we go on, which is great >                   for
>> the CCWG as the more background and >                   details they
>> know the better that are able to >                   give us solid well
>> reasoned advice in my opinion. > > > >                   -James > > > > >
>> >                      On 6 Jul 2015, at 13:19, Avri Doria >
>>          <avri@acm.org <mailto:avri@acm.org <avri@acm.org> >> wrote: > > >
>> >                      Hi, > >                      I have not had a
>> chance to get back to the >                      recording of the
>> call.  Not >                      sure I will, that time was the time I
>> had >                      for that call and that is why >
>>          i was listening then. > >                      In any case, the
>> lawyers were talking >                      about a new model they had
>> come up >                      with, but not knowing what to do about it >
>>                  since they had not been asked >
>> for a new model. > >                      I was told to leave before I
>> got to hear >                      the end of that story. Or about >
>>                  the model itself.  Anyone who has had a >
>>          chance to listen, whatever happened? > >
>> avri > >                      ps. sometimes i think the lawyers are >
>>                  getting interested in what we are >
>>    doing, almost like stakeholders. not that >                      i
>> expect them to give up their >                      hourly rates because
>> they are stakeholders. > >                      On 06-Jul-15 05:07,
>> James Gannon wrote: > > >                         I listened to the last
>> co-chairs >                         lawyers’ call at; >
>>
>> https://community.icann.org/pages/viewpage.action?pageId=53782602 >
>>                     <
>> https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=
>> > >                         (I’m a glutton for punishment) > > > >
>>                     It was a short call and I’ll make a >
>>             particular note that Leon and >
>> Mathieu made a point of not making any >
>> decisions on behalf of the >                         whole group and
>> made it clear anything >                         requiring a decision
>> must be >                         made by the overall CCWG, so I was >
>>                     happy with that side of things >
>>       myself, most of my own fears about not >
>> having a sub-group are somewhat >                         assuaged. > >
>>                     So my paraphrasing and overview is: > > > >
>>                   ·        Lawyers working hard on the >
>>             models for us collaboratively >
>> between the two firms since BA > >                         ·
>> Lawyers are prepping a >                         presentation to give to
>> us ASAP >                         before Paris if possible, that >
>>                   presentation will take the majority of >
>>             a call, it can’t be done quickly, they >
>>       need about 45mins uninterrupted >                         to go
>> through the presentation and >                         then would likely
>> need Q&A time >                         after they present. > >
>>                   ·        Some small >
>> wording/clarifications to come back to >                         the
>> CCWG >                         to make sure everyone’s on the same
>> page > >                         ·        Everyone feels Paris will be >
>>                     an important time for the >
>> models, lawyers will be ready for a >                         grilling
>> on the details of the >                         models from us to flesh
>> out any of our >                         concerns/questions > > > >
>>                     Note that the above is all my very >
>>         condensed overview of the >
>> conversations. > >                         It seemed like a productive
>> call to me. > > > >                         -James > > > > > >
>>               *From:* accountability-cross-community-bounces@icann.org >
>>                     <
>> mailto:accountability-cross-community-bounces@icann.org
>> <accountability-cross-community-bounces@icann.org>> >
>>       [mailto: accountability-cross-community-bounces@icann.org >
>>                   <
>> mailto:accountability-cross-community-bounces@icann.org
>> <accountability-cross-community-bounces@icann.org>>] >
>>       *On Behalf >                         Of *Greg Shatan >
>>             *Sent:* Monday, July 06, 2015 5:33 AM >
>>       *To:* Carlos Raul >                         *Cc:* >
>>             accountability-cross-community@icann.org >
>>       < mailto:accountability-cross-community@icann.org
>> <accountability-cross-community@icann.org>> >
>> *Subject:* Re: [CCWG-ACCT] Who is >                         managing the
>> lawyers and what have >                         they beenasked to do? > >
>> > >                         Carlos, > > > >                         As
>> the legal sub-team was disbanded, >                         your guess
>> is as good as mine..... > > > >                         Greg > > > >
>>                     On Mon, Jul 6, 2015 at 12:27 AM, >
>>       Carlos Raul <carlosraulg@gmail.com >                         <
>> mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>> >
>>         < mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>>> wrote: >
>> >                         Thank you Greg! > > > >
>>   It makes a lot of sense and I guess >                         those
>> are all good reasons as >                         we hired them in the
>> first place. >                         What are the next steps now? >
>>                     What happened in the recent call? > > > >
>>               Best regards > > > > >                         Carlos
>> Raúl Gutiérrez > >                         +506 8837 7176 >
>>               <tel:%2B506%208837%207176> >
>> <tel:%2B506%208837%207176> > >                         Skype
>> carlos.raulg > >                         _________ > >
>>       Apartado 1571-1000 > >                         *COSTA RICA* > > > >
>> > >                         On Mon, Jul 6, 2015 at 12:02 AM, >
>>               Greg Shatan >                         <
>> gregshatanipc@gmail.com >                         <
>> mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>> <
>> mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> >
>>             wrote: > >                             Chris, > > > >
>>                       That was tried to some extent, >
>>       at least in the CWG. > > > >                             There are
>> several substantial >                         problems with that
>> approach. > > > >                             First, lawyers are not >
>>                     fungible.  The particular legal skills, >
>>                   background and experience >
>> required for the issues before both >                             WGs
>> are fairly specific, and in >                         some cases, very
>> specific. >                             The primary core competency >
>>                     needed here is corporate >
>>     governance.  While a number of >                         lawyers in
>> the community have a >                             reasonable working
>> knowledge of >                         the area, at least in their >
>>                         home jurisdictions, I don't >
>>       believe there are any who would >                             say
>> that this is their primary >                         focus and expertise
>> -- at least >                             none who identified themselves >
>>                     to either WG.  The second core >
>>           competency required, especially >                         in
>> the CCWG, is non-profit >                             law. Again there
>> are a number >                         of lawyers with a decent working >
>>                         knowledge of this fairly broad >
>>         field, but not as a primary >
>> focus.  There may be a couple >                         of lawyers in
>> the community who >                             would claim this fairly
>> broad >                         field as a primary focus and >
>>                   expertise -- but none who >
>> became involved with either WG. >                             This then
>> becomes further >                         narrowed by jurisdiction.
>> Since >                             ICANN is a California >
>>             non-profit corporation, US corporate >
>>       governance and non-profit >                         experience is
>> more relevant than >                             experience from other >
>>                     jurisdictions, and California law >
>>             corporate governance and >
>> non-profit experience is more >                             relevant
>> than that from other >                         US jurisdictions.  In my >
>>                         experience, the more a US >
>>       lawyer focuses on a particular >
>> substantive area, the greater >                         their knowledge
>> of and comfort >                             with state law issues in US >
>>                     state jurisdictions other than >
>>           their own (e.g., someone who >                         spend a
>> majority of their time >                             working in
>> corporate governance >                         will have a greater
>> knowledge >                             of the law, issues, approaches >
>>                     and trends outside their >
>>     primary state of practice, >                         while someone
>> who spends a >                             relatively small amount of
>> time >                         in the area will tend to feel >
>>                   less comfortable outside their >
>>       home jurisdiction).  (An >                             exception
>> is that many US >                         lawyers have specific
>> knowledge of >                             certain Delaware corporate
>> law >                         issues, because Delaware often >
>>                   serves as the state of >
>> incorporation for entities operating >
>> elsewhere.) > > > >                             Second, lawyers in the >
>>                     community will seldom be seen as >
>>           neutral advisors, no matter how >                         hard
>> they try.  They will tend >                             to be seen as
>> working from >                         their point of view or
>> stakeholder >                             group or "special interest" or >
>>                     desired outcome, even if they >
>>           are trying to be even-handed. >                         Over
>> the course of time, this >                             balancing act
>> would tend to >                         become more untenable. > > > >
>>                         Third, the amount of time it >
>>       would take to provide truly >
>> definitive legal advice >                         (research, careful
>> drafting, >                             discussions with relevant >
>>                     "clients", etc.) would be >
>>     prohibitive, even compared to >                         the
>> substantial amount of time >                             it takes to
>> provide reasonably >                         well-informed and competent >
>>                         legal-based viewpoints in the >
>>         course of either WG's work. > > > >
>> Fourth, in order to formally >                         counsel the
>> community, the lawyer >                             or lawyers in
>> question would >                         have to enter into a formal >
>>                         attorney-client relationship. >
>>         Under US law, an >                             attorney-client
>> relationship >                         may inadvertently be created by >
>>                         the attorney's actions, so >
>>       attorneys try to be careful about >
>> not providing formal legal >                         advice without a
>> formal engagement >                             (sometimes providing an >
>>                     explicit "caveat" if they feel they >
>>                 might be getting too close to >
>> providing legal advice).  If the >                             attorney
>> is employed by a >                         corporation, they would
>> likely be >                             unable to take on such a >
>>                   representation due to the terms of >
>>           their employment, and that is >                         before
>> getting to an exploration >                             of conflict of
>> interest >                         issues.  If the attorney is employed >
>>                         by a firm, the firm would have >
>>         to sign off on the >                             representation,
>> again dealing >                         with potential conflict issues. >
>> > > >                             Fifth, even if the above issues >
>>                     were all somehow resolved, it >
>>           would be highly unlikely that >                         any
>> such attorney would provide >                             substantial
>> amounts of advice, >                         written memos, counseling,
>> etc. >                             on a pro bono (unpaid) basis, >
>>                   especially given the >
>> time-consuming nature of the >                         work.  Pro bono
>> advice and >                             representation is generally >
>>                     accorded to individuals and >
>>       entities that could not >                         otherwise be
>> able to pay for it.  That >                             is clearly not
>> the case here, >                         at least with ICANN taking >
>>                         financial responsibility.  It >
>>         would likely be very difficult >                             to
>> justify this to, e.g., a >                         firm's pro bono
>> committee, as a >                             valid pro bono
>> representation. > > > >                             Sixth, if ICANN were
>> not taking >                         the role they are taking, it >
>>                         would be extremely difficult to >
>>             identify the "client" in this >
>> situation.  The "community"  is >                         a collection
>> of sectors, >                             mostly represented by various >
>>                     ICANN-created structures, which >
>>           in turn have members of widely >
>> varying types (individuals, >                             corporations,
>> sovereigns, >                         non-profits, IGOs, partnerships, >
>>                         etc.).  This would also make it >
>>             extremely difficult to enter >
>> into a formal counseling >                         relationship with the
>> "community." > > > >                             Seventh, this is a
>> sensitive, >                         high-profile, transformative set >
>>                         of actions we are involved in, >
>>         which is subject to an >
>> extraordinary amount of >                         scrutiny, not least
>> that of the NTIA >                             and the US Congress.
>> That >                         eliminates any possibility of >
>>                   providing informal, >
>> off-the-cuff, reasonably well-informed but >
>> not quite expert, "non-advice" >                         advice -- which
>> might happen in >                             a more obscure exercise. >
>>                     There's simply too much at stake. > > > >
>>                   Finally, I would say that a >
>> number of attorneys involved in >                             one or
>> both of the WGs are in >                         fact providing a
>> significant >                             amount of legal knowledge and >
>>                     experience to the WGs, helping >
>>           to frame issues, whether in >                         terms of
>> general leadership (e.g., >                             Thomas, Leon,
>> Becky) or more >                         specifically in a >
>>                 "lawyer-as-client" capacity -- >
>> working with outside counsel, >                             tackling the
>> more legalistic >                         issues, providing as much
>> legal >                             background and knowledge as >
>>                   possible without providing the >
>>       type of formal legal advice >                         that would
>> tend to create an >                             attorney-client
>> relationship, >                         etc.  So I do think that many >
>>                         lawyers in the community are >
>>       giving greatly of themselves in >                             this
>> process, even though they >                         cannot and would not
>> be able to >                             formally be engaged by the >
>>                     community as its "counsel of record." > > > >
>>                       In sum, it might be a nice >
>>       thought in theory, but it is no way >
>> a practical possibility. > > > >                             Greg > > > >
>>                         On Sat, Jul 4, 2015 at 3:08 AM, >
>>             CW Lists >                             <
>> lists@christopherwilkinson.eu >                         <
>> mailto:lists@christopherwilkinson.eu <lists@christopherwilkinson.eu>> >
>>                         < mailto:lists@christopherwilkinson.eu
>> <lists@christopherwilkinson.eu>>> >                         wrote: > >
>>                           Good morning: > > > >
>>       I had decided not to enter >                         this debate.
>> But I am bound to >                               say that the thought
>> had >                         occurred to me at the time, that >
>>                         there were more than enough >
>>       qualified lawyers in this >
>> community that they could >                         perfectly well have
>> counselled … >                               themselves. > > > >
>>                         CW > > > >                               On 04
>> Jul 2015, at 08:41, >                         Greg Shatan >
>>                   <gregshatanipc@gmail.com >                         <
>> mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>> <
>> mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> >
>>                   wrote: > > > >
>> Wolfgang, > > > >                                   To your first point, >
>>                     the billing rates were clearly >
>>                 stated in the law >                         firms'
>> engagement letters. > > > >                                   To your
>> second point, >                         I'm sure we could all think of >
>>                               other projects and >
>>       goals where the money could have >
>>     been "better spent." >                         You've stated yours.
>> But that >                                   is not the proper >
>>                   test.  This was and continues to be >
>>                   money we need to spend >                         to
>> achieve the goals we have >                                   set.
>> Under different >                         circumstances, perhaps it
>> would >                                   be a different amount >
>>                   (or maybe none at all).  But it >
>>                 was strongly felt at >                         the
>> outset that the group needed >                                   to have
>> independent >                         counsel.  Clearly that counsel >
>>                               needed to have >
>> recognized expertise in the appropriate >
>>     legal areas.  As such, >                         I believe we made
>> excellent >                                   choices and have been >
>>                     very well represented. > > > >
>>             As to your "better >                         spent" test, I
>> just had to have >                                   $4000.00 worth of >
>>                     emergency dental work done.  This >
>>                   money definitely could >                         have
>> been "better spent" on a >                                   nice
>> vacation, >                         redecorating our living room or on >
>>                               donations to my favored >
>>         charitable causes.  But I had >
>>     no choice, other than >                         to choose which
>> dentist and >                                   endodontist I went to, >
>>                     and I wasn't going to cut >
>>           corners -- the dental >                         work was a
>> necessity. >                                   Similarly, the legal >
>>                     work we are getting is a >
>>           necessity and whether >                         we would have
>> preferred to spend >                                   the money
>> elsewhere is >                         not merely irrelevant, it is an >
>>                               incorrect and >
>> inappropriate proposition.  Many of us >
>>     are investing vast >                         quantities of time that
>> could be >                                   "better spent" >
>>               elsewhere as well, but we are willing >
>>                 (grudgingly sometimes) >                         to
>> spend the time it takes to >                                   get it
>> right, because >                         we believe it needs to be done. >
>>                               This is the appropriate >
>>         measure, whether it comes to >
>> our time or counsels' >                         time.  If we believe in
>> this >                                   project, we have to >
>>               invest in it, and do what it takes >
>>             to succeed. > > > >                                   Of
>> course, this >                         investment has to be managed
>> wisely >                                   and cost-effectively, >
>>                   and by and large, I believe the >
>>                 CCWG has done that >                         reasonably
>> well -- not perfectly, >                                   but
>> reasonably well and >                         with "course corrections" >
>>                               along the way intended >
>>       to improve that management. >
>> It's certainly fair to >                         ask, as Robin has done,
>> for a >                                   better understanding of >
>>                     that management as we go >
>>           along.  But asserting >                         that the money
>> could have been >                                   "better spent" >
>>                     elsewhere sets up a false test that we >
>>                       should not use to >
>> evaluate this important aspect of >
>> our work.  Instead, we >                         need to focus on
>> whether the >                                   money was "well spent" >
>>                     on these critical legal >
>>           services. If you have >                         reason to
>> believe it was not, >                                   that could be
>> useful to >                         know.  That would at least be >
>>                               the right discussion to >
>>         have. > > > >                                   Greg > > > >
>>                               On Sat, Jul 4, 2015 at >
>>       1:13 AM, "Kleinwächter, >
>> Wolfgang" >                                   <
>> wolfgang.kleinwaechter@medienkomm.uni-halle.de >
>> < mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de
>> <wolfgang.kleinwaechter@medienkomm.uni-halle.de>> >
>>                 < mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de
>> <wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> >
>>                 wrote: > >                                     HI, > >
>>                                 and please if you >
>>       ask outside lawyers, ask for the >
>>       price tag in >                         advance. Some of the money
>> spend fo >                                     lawyers could have >
>>                     been spend better to suppport >
>>                   and enable Internet >                         user and
>> non-commercial groups >                                     in
>> developing >                         countries. > > >
>>                   Wolfgang > > > > > >
>>   -----Ursprüngliche >                         Nachricht----- >
>>                               Von: >
>> accountability-cross-community-bounces@icann.org >
>>       < mailto:accountability-cross-community-bounces@icann.org
>> <accountability-cross-community-bounces@icann.org>> >
>>                   <
>> mailto:accountability-cross-community-bounces@icann.org
>> <accountability-cross-community-bounces@icann.org>> >
>>                   im Auftrag von >                         Robin Gross >
>>                                 Gesendet: Fr >
>> 03.07.2015 14:57 >                                     An:
>> accountability-cross-community@icann.org >                         <
>> mailto:accountability-cross-community@icann.org
>> <accountability-cross-community@icann.org>> >
>>             < mailto:accountability-cross-community@icann.org
>> <accountability-cross-community@icann.org>> >
>>             Community >                                     Betreff: >
>>                     [CCWG-ACCT] Who is managing the lawyers >
>>                           and what have they >
>> beenasked to do? > > >                                     After the
>> legal >                         sub-team was disbanded, I haven't >
>>                                 been able to follow >
>>       what communications are >
>> happening with CCWG >                         and the independent
>> lawyers we >                                     retained. > >
>>                           I understand the >
>> lawyers are currently "working on >
>> the various models" >                         and will present something
>> to >                                     us regarding that >
>>             work soon.  However, *what >
>>       exactly* have the >                         lawyers been asked to
>> do and >                                     *who* asked them? >
>>                     If there are written >
>>       instructions, may >                         the group please see
>> them?  Who >                                     is now taking on >
>>                     the role of managing the outside >
>>                   attorneys for this >                         group,
>> including providing >                                     instructions
>> and >                         certifying legal work? > >
>>                     Sorry, but I'm >                         really
>> trying to understand what is >
>> happening, and >                         there doesn't seem to be much >
>>                                 information in the >
>>       public on this (or if there is, >
>>       I can't find it). >                         Thanks for any
>> information >                                     anyone can provide. > >
>>                                 Best, >
>>       Robin > >
>> _______________________________________________ >
>>               Accountability-Cross-Community >
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>> > > > > > > >                -- > >                Jordan Carter > >
>>            Chief Executive >                *InternetNZ* > >
>>    04 495 2118 (office) | +64 21 442 649 >
>> <tel:%2B64%2021%20442%20649> (mob) >
>> jordan@internetnz.net.nz >                <
>> mailto:jordan@internetnz.net.nz <jordan@internetnz.net.nz>> >
>>      Skype: jordancarter > >                /A better world through a
>> better Internet / > > >
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Dear Co-Chairs, If I recall correctly Chris Dispain already shared concerns about the ccNSO being able to become a member. Neither model does anything for ccTLDs, because the ccNSO has no mandate to speak for individual ccTLs, whether members of ccNSO, or not. Looks like one side wants the designator model off the table and the other wants the member model off the table. So, let's take both models off the table :-)-O el On 2015-07-07 12:33, Malcolm Hutty wrote:

On 07/07/2015 09:21, Seun Ojedeji wrote:

...

One of the summary I got from BA was that the "empowered SO/AC membership model" and the "empowered SO/AC designator model" would be reviewed in detail. Understanding the known challenges with membership route, I wonder why we would be spending more legal hours on it after the ones already spent till date.

Actually, Seun, we (I and at least some others) don't understand the objections to the membership model, that's why we're asking those who say they have a problem with it to specify their concerns more precisely so that solutions can be found.

The problem with the designator model is clear and precisely specified: our task in this CCWG is to ensure that there is an effective means to hold ICANN to account for adherence to the commitments it makes in its bylaws. The only route the designator model provides to achieve that lies through dismissing the Directors. This is wholly inadequate: this group has made quite clear its view that it considers such action undesirable and destabilising, and should only be contemplated in utter extremis. So the designator model simply fails to achieve our goals.

Moreover, the designator model is inflexible: the powers of designators are fixed in the statute, and we cannot add to them. So this is insoluble, and the designator model must come off the table: continuing to discuss it is a waste of our valuable time because it cannot achieve our primary goal.

The membership model does solve this problem: it provides a clear means to enforce ICANN's binding commitments. It is also much more flexible: we can adjust:

* to some extent, the powers of members through the corporate governing documents; * to some extent, the means those powers are exercised through the corporate government documents; * who may have the right to become a member, and thus who gets to exercise the powers of membership, again through the corporate governing documents. * furthermore, the conditions under which the members' powers may be exercised, the process for exercising them, and thresholds that must be reached, can all be further controlled through a binding agreement between the members.

This gives us many potential routes through which we can seek to address the concerns that may be raised with membership. I do not doubt that there may be valid concerns that absolutely need to be addressed. We can do this, if we all work together in a constructive fashion. The first step is to clearly identify what it is about the membership model that so frightens some people, so that we can design in checks and solutions to those concerns.

Malcolm.

-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

ccNSO may not speak for individual ccTLDs, but does it not speak for ccTLDs collectively?

Categorically, absolutely and totally…NO! Cheers, Chris

On 7 Jul 2015, at 22:49 , Malcolm Hutty <malcolm@linx.net> wrote:

On 07/07/2015 13:41, Dr Eberhard Lisse wrote:

...

Dear Co-Chairs,

If I recall correctly Chris Dispain already shared concerns about the ccNSO being able to become a member.

Neither model does anything for ccTLDs, because the ccNSO has no mandate to speak for individual ccTLs, whether members of ccNSO, or not.

ccNSO may not speak for individual ccTLDs, but does it not speak for ccTLDs collectively? For example, to uphold the legitimate interest ccTLDs have in ICANN honouring its own bylaws?

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

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Then on whose behalf is it speaking

The members of the ccNSO, which are most assuredly not ccTLDs collectively. And only then if those members decide to allow it to do so. Cheers, Chris

On 7 Jul 2015, at 23:05 , Malcolm Hutty <malcolm@linx.net> wrote:

On 07/07/2015 13:51, Chris Disspain wrote:

...

...

ccNSO may not speak for individual ccTLDs, but does it not speak for ccTLDs collectively?

Categorically, absolutely and totally…NO!

Then on whose behalf is it speaking when (for example) it votes whether or not to discharge the Board, or veto a bylaws change?

Or are you saying it would never be able to exercise such a power?

I'm genuinely confused.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

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Dear Co-Chairs, I am on record since very early on that I say what I mean and mean what I say. So the answer is no. The ccNSO is a Policy Development body and the policy is ICANN policy not ccNSO Policy, by the way. Come to think of it, I do not think the ccNSO can "speak" for anyone. But then I have read the bylaws. el On 2015-07-07 14:19, Malcolm Hutty wrote:

On 07/07/2015 14:09, Chris Disspain wrote:

...

...

Then on whose behalf is it speaking

The members of the ccNSO, which are most assuredly not ccTLDs collectively. And only then if those members decide to allow it to do so.

OK, so Dr Lise when you said:

...

If I recall correctly Chris Dispain already shared concerns about the ccNSO being able to become a member.

Neither model does anything for ccTLDs, because the ccNSO has no mandate to speak for individual ccTLs, whether members of ccNSO, or not.

did you mean

"Neither model does anything for those ccTLDs who are not members of ccNSO, because ccNSO only speaks for those ccTLDs that choose to join it, and only when authorised by them to do so"?

Malcolm

-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

Dear Co-Chairs, This needs to be slightly amended, We need to design accountability mechanisms that allow all members of the class "ccTLD" to have real, effective accountability of the actions of ICANN and the IANA Function Manager (if separate from ICANN). el On 2015-07-07 16:26, Nigel Roberts wrote:

Actually this is a more important point than appears at first sight.

ICANN has a role in respect of ALL TLDs.

What exactly that role is, is open to some mild interpretation, but it is undeniable that it HAS a (minimally small but maximally important) role.

The class "ccNSO" is a subset of the class "ccTLD".

We need to design accountability mechanisms that allow all members of the class "ccTLD" to have real, effective accountability of the actions of ICANN.

It's no good saying "well, IANA is (currently) doing a good job. The question is how can you entrench checks and balances, since in the past they have not only NOT done such a good job, but have attempted to misuse their position (e.g. by wilfully refusing zone updates for commercial advantage -- just ask .NZ!)

Nigel

[...]

It might be reasonable to think of the ccNSO as a vehicle through which ccTLDs can organise to make global policy if and when required, but more commonly to prevent global policies being made / imposed on us... Jordan On 8 July 2015 at 00:51, Chris Disspain <ceo@auda.org.au> wrote:

ccNSO may not speak for individual ccTLDs, but does it not speak for ccTLDs collectively?

Categorically, absolutely and totally…NO!

Cheers,

Chris

On 7 Jul 2015, at 22:49 , Malcolm Hutty <malcolm@linx.net> wrote:

On 07/07/2015 13:41, Dr Eberhard Lisse wrote:

Dear Co-Chairs,

If I recall correctly Chris Dispain already shared concerns about the ccNSO being able to become a member.

Neither model does anything for ccTLDs, because the ccNSO has no mandate to speak for individual ccTLs, whether members of ccNSO, or not.

ccNSO may not speak for individual ccTLDs, but does it not speak for ccTLDs collectively? For example, to uphold the legitimate interest ccTLDs have in ICANN honouring its own bylaws?

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

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Dear Eberhard, ccTLDs must go through the ICANN ccTLD IDN Fast Track process to get the IDN version of their ccTLD. Best, Giovanni On 07 Jul 2015, at 15:07, Dr Eberhard Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: Dear Co-Chairs, What interest does a ccTLD have in ICANN? Other than IANA staff making the odd name server change (NSF) and WHOIS database entry change (DEF)? None whatsoever. This is even reflected in the bylaws. Maybe reading them helps. el On 2015-07-07 13:49, Malcolm Hutty wrote: On 07/07/2015 13:41, Dr Eberhard Lisse wrote: Dear Co-Chairs, If I recall correctly Chris Dispain already shared concerns about the ccNSO being able to become a member. Neither model does anything for ccTLDs, because the ccNSO has no mandate to speak for individual ccTLs, whether members of ccNSO, or not. ccNSO may not speak for individual ccTLDs, but does it not speak for ccTLDs collectively? For example, to uphold the legitimate interest ccTLDs have in ICANN honouring its own bylaws? -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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 Giovanni Seppia External Relations Manager EURid Woluwelaan 150 1831 Diegem - Belgium TEL: +32 (0) 2 401 2750 MOB:+39 335 8141733 giovanni.seppia@eurid.eu<mailto:giovanni.seppia@eurid.eu> http://www.eurid.eu<http://www.eurid.eu/> [cid:2934C4EE-CAF2-4BA4-9DC0-AB9A25CC6ADC@Docomointertouch.com] #2015euWA Please consider the environment before printing this email.<http://christmas2014.eurid.eu> Disclaimer: This email and any attachment hereto is intended solely for the person to which it is addressed and may contain confidential and/or privileged information. If you are not the intended recipient or if you have received this email in error, please delete it and immediately contact the sender by telephone or email, and destroy any copies of this information. You should not use or copy it, nor disclose its content to any other person or rely upon this information. Please note that any views presented in the email and any attachment hereto are solely those of the author and do not necessarily represent those of EURid. While all care has been taken to avoid any known viruses, the recipient is advised to check this email and any attachment for presence of viruses. http://www.eurid.eu/en/legal-disclaimer

Hi Eberhard, Thanks for this message. The point I tried to make was to answer your question “What interest does a ccTLD have in ICANN?”. My answer was/is that if you are a ccTLD wishing to have the string in your script you have to go through the ccTLD Fast Track process which is managed by ICANN. Best, Giovanni On 07 Jul 2015, at 22:34, Dr Eberhard W Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: Giovanni, Besides that I have not only been opposed to the Fast-Track process and voted against it, it was a ccNSO process. In order for the ccNSO to circumvent having to do a PDP. Quite some accountability issues there. But none of the IDNs is in the ISO tables and hence they are not really ccTLDs so I am not sure RFC 1591 applies to them, nor are they gTLDs. But, no ccTLD *HAS* to have an IDN. Technically speaking its the ccTLD Manager in the first place, but some may *WANT* to have an IDN. And, unless I am mistaken, more or less anyone can apply for an IDN, not judt the corresponding ccTLD Manager. el -- Sent from Dr Lisse's iPhone 6 On Jul 7, 2015, at 16:39, Giovanni Seppia <Giovanni.Seppia@eurid.eu<mailto:Giovanni.Seppia@eurid.eu>> wrote: Dear Eberhard, ccTLDs must go through the ICANN ccTLD IDN Fast Track process to get the IDN version of their ccTLD. Best, Giovanni On 07 Jul 2015, at 15:07, Dr Eberhard Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: Dear Co-Chairs, What interest does a ccTLD have in ICANN? Other than IANA staff making the odd name server change (NSF) and WHOIS database entry change (DEF)? None whatsoever. This is even reflected in the bylaws. Maybe reading them helps. el On 2015-07-07 13:49, Malcolm Hutty wrote: On 07/07/2015 13:41, Dr Eberhard Lisse wrote: Dear Co-Chairs, If I recall correctly Chris Dispain already shared concerns about the ccNSO being able to become a member. Neither model does anything for ccTLDs, because the ccNSO has no mandate to speak for individual ccTLs, whether members of ccNSO, or not. ccNSO may not speak for individual ccTLDs, but does it not speak for ccTLDs collectively? For example, to uphold the legitimate interest ccTLDs have in ICANN honouring its own bylaws? -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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 Giovanni Seppia External Relations Manager EURid Woluwelaan 150 1831 Diegem - Belgium TEL: +32 (0) 2 401 2750 MOB:+39 335 8141733 giovanni.seppia@eurid.eu<mailto:giovanni.seppia@eurid.eu> http://www.eurid.eu<http://www.eurid.eu/> <image001.jpg> #2015euWA Please consider the environment before printing this email.<http://christmas2014.eurid.eu/> Disclaimer: This email and any attachment hereto is intended solely for the person to which it is addressed and may contain confidential and/or privileged information. 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Hello Eberhard,

...

 As I have mentioned, there are no accountability measures contemplated for ccTLD Managers, whatsover, no matter how much one wishes to dress the windows.

I think I may have mentioned this before, but one option would simply be to have a legal agreement between each ccTLD manager and ICANN that clearly sets out what ICANN is responsible for, and sets out any dispute mechanisms. The agreement could then be used to hold ICANN accountability for its commitments to the ccTLD manager. In that agreement you could require that ICANN act in accordance with its bylaws published at a particular address. The agreement could also set out the legal jurisdiction of the agreement – which presumably could be the country associated with the ccTLD manager. Ie once this groups works out an appropriate set of accountability mechanisms – a version of those could be incorporated into a legal agreement with the ccTLD manager. It is up to the ccTLD manager whether they wish to sign such an agreement. The agreement could also be structured as a no fee agreement, although I do feel that ccTLD managers should contribute to the cost of operating the IANA function in some form – even if it is voluntary – but that could be on a separate basis to the actual agreement. Regards, Bruce Tonkin

Thank heavens that SOMEONE in the ICANN process actually understands that IDNs relate to scripts and does not relate to languages!! I think this the first time I, personally, have encountered such an excess of competence and understanding. Nigel PS: This is slightly tangential to accountability, mind, except, that perhaps, that its worth remarking maybe we do need to keep firmly in mind that accountability mechanisms for ICANN in respect of its dealings towards IDN TLDs (whether cc- or G-) need to be towards script-using communities, rather than language communities. On 07/07/2015 10:05 PM, Giovanni Seppia wrote:

My answer was/is that if you are a ccTLD wishing to have the string in your script ...