Hello all, The notes, recordings and transcripts for CCWG Accountability Dedicated Recommendation 11 Meeting - 8 February will be available here: https://community.icann.org/x/OwOAAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. TRickert - Audio Only - Kavouss Arasteh and ELisse have to stop at 0300UTC No changes to SOIs TRickert: on to Recommendation 11 - the world is waiting on us to terminate. Hope we will continue to avoid voting. Should the group no be able to come to consensus we may have to vote - or if no proposal with enough consensus declare no consensus. Let us continue in the spirit of compromise. Let us bring up the proposal as presented Thursday last week. The straw poll concluded that most were supportive of presenting it to their respective groups for consideration. KArasteh: from the list we need legal clarification. Would appreciated lawyers speaking to this. TRickert: this is what we want to do. We will ask the legal team to go through the questions from Rafael - so everyone understands all the implications of this proposal - at the end of this call we will see if there is consensus. Any questions on the approach. Holly and Rosemary. HGregory: From a legal perspective the proposal is viable but there will be some additional details to finish implementing. The questions are not really legal questions but rather process questions - but we have reviewed them. Who would decide if the carve out is applicable? You could determine if a person or group is applicable. This has to be made at the beginning of an escalation process. this could be a decision of the Board or some committee of the Board or the Ombudsman, member of the IRP. Board Counsel, ICANN general counsel - it could be left to implementation. What is the standard used to decide if it applies - As we understand the proposal - need to review if the Board is making a decision in accordance, or not, with GAC advice? There will need to be a judgement call and need a person who can do this properly. Such decisions could be challenged in via the RFR or using IRP (by GAC if it applied, community if it did not). would the GAC be able to participate fully? Need to have clear language on this. Needs more details so it can do what you want it to do. RFei: My sense - we do not understand enough all the details as to the various types of GAC advice. What goes into the bylaws should have a certain level of granularity but will not be the most detailed - as Holly said we will need a process that can resolve the last details. TRickert: the questions asked by Rafael cannot be answered in strict legal terms and this group needs to decide on more details but this could be left for implementation. Who decides if the carve out applies could be decided today. We should only change the ways the Board works where needed. We have GAC and Board reps and it would be good to hear from those today. KArasteh: 2 questions - re Rosemary does it mean that the Becky proposal is not the final language for the Bylaws. Second - would any Board or GAC member comment on what is on the table. EMann: (chat) Clarification GAC advise: If GAC Advice is based on a consensus of the GAC, it will create a strong presumption that the application should not be approved. If the ICANN Board does not act in accordance with this type of advice, it must provide rationale for doing so. If the GAC advises that there are concerns about a particular application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. If the GAC advises that an application should not proceed unless remediated, this will create a strong presumption that the application should not proceed unless there is a remediation method available in the Applicant Guidebook (such as securing the approval of one or more governments) that is implemented by the applicant. If the issue identified by the GAC is not remediated, the ICANN Board is expected to provide a rationale for its decision if it does not follow GAC advice. ELisse: if I become absent Stephen Deerhake has my proxy. TRickert: GAC advice register or clear mention by the Board. We could ask the Board to note if their decisions is based on GAC advice. GShatan: Rafael's questions address the more general.. If the initiating SO or AC is stating in the Escalation process. Many of these issues are for implementation. KArasteh: IRP complainant and defendant in this case? Is all because of 2/3rds. TRickert: we should first address the question who makes the decision and how. Suggestion is to ask to Board to include in its rationale if its decisions is mostly based on GAC advice. As to process let us ask our lawyers. PRosenzweig: This is an implementation problem. This applies to GAC with full consensus advice. If the community agrees with the GAC what is the probability that the community will challenge the implementation of that GAC advice by the Board. The Board can always note more information. TRickert: GAC advice is sometimes quite broad. Some are concerned that such advice would limit GAC participation eg. if there is general GAC advice on new gTLDs does this prevent GAC from participating in any community decisions wrt this? This is why I suggest basing it on Board rationale. KArasteh: Agree with PR that the possibly of this case is very rare. GShatan: We are inflating the importance of this questions. How often would a challenge to Board action happen where it is not clear that it is based on GAC advice? Seems to me that when they are implementing GAC advice they are clear - we may just ask them to confirm. SDelBianco: A simply way to implement this from rec 2. REc 2 describes the process for escalation which includes the petition - we could modify rec 2 to require that if the petitioner believes the challenge a decision that is based mainly on GAC advise then they need to say so and then the rest of the community must decide. PRosenzweig: All good ideas but this problem is an unlikely circumstance. Also needs rules for IRP. this all process and implementation. TRickert: good suggestion we should do so shortly. First HG. HGregory: the GAC must say it is consensus advice, the Board must say it is following GAC advice and then the SDB proposal are all good and useful for the legal advisors. TRickert: The carve out will only apply to GAC consensus advice. Secondly general principals provided by the GAC will not be applicable to the carve out. Suggest we do not tweak the Kavouss-Becky proposal and keep the points discussed today for implementation. KArasteh: Becky, Stve and holly getting together and propose a workable language. Change next meeting to dedicated meeting on this or allow another dedicated meeting to finish this. TRickert: Uncertain if we need more language - no tweaks - but we capture the recommendations today for implementation. GShatan: We need to think about the context in which this could arise. On SOAC petitions and states this is a challenge to the implementation of GAC advice by the Board. The GAC can participate in all but vote. The GAC could challenge if it determines this is the case TArasteh: What is the final situation. BSchaefer: Bland advice is of no concern. The standard should be consensus advice to the Board. TRickert: We will not change the language of the proposal. The carve out would only be applicable to consensus GAC advice and not to general principals. The lawyers will be asked to clear this up in implementation. TSchneider: Seeking clarification - there are GAC principles on new gTLDs from 2007. they are fairly basic but cover a range of fundamental issues of public interest. as this advice is meant to be the basis for all new gTLDs would this mean that there was a carve out on all public policy issues related to new gTLDs forever? TRickert: Re general principals? BSchaefer: this is just prudent vetting. Becky Burr: @Thomas Schneider - the notion that the 2007 new gTLD principles would preclude GAC participation in all matters involving new gTLDs is ridiculous. no one has suggested that and the language does not support that. it is only an argument to raise discord TRickert: Some want a more formalized approach such as SDB proposal. Steve DelBianco [GNSO - CSG]: 3-part solution: 1) GAC Advice should indicate whether the advice was approved with consensus as defined in the bylaws. 2) Board actions should include whether the action was based upon GAC Consensus advice, and 3) An AC/SO petition to start the community decision should indicate whether the petitioner wants to carve-out GAC as a potential objector. PRosenzweig: Agree with Becky.- frivolous argument. BBurr: 2007 general principals by the GAC cannot be used for the carve out.. SDelBianco: We have a general solution to the TS problem in rec. 2 - 21 days after the Board decision. Even If the Board decision is based on 10 year old advice from the GAC it may be applicable but it is still limited to 21 days. TRickert: SDB's 3 step process seems to get tractions and should be included. BBurr could you draft a few lines so we can add that as clarifying language which we can include in the final report. We would have 3 components to the proposal - 1 leave the proposal as is. Add clarification the SDB approach 3 steps to the report and add the Becky response vs the lifetime of GAC advice and add the SDB comment on timing. Is this understood? KArasteh: no objection - can you clarify what you stated. TRickert: yes we will do this. does this compromise language stands? Any opposition? KAratesh:MCarvell - regardless of any decision the GAC can always participate even if they cannot vote. SBachollet: other word for community discussion. HGregory: In light of the progress that has been made do you still want our answers in writing? TRickert: important for the GAC members so let us proceed with you answering the legal aspects. We have a way forward and that the agreement from last Thursday is still valid. We have added some qualifications for clarification. We will put it into a document and bring it to the group in the plenary meeting. Thanks everyone for the fruitful discussion and that we have clarified questions. This closes the call.