Hello all, The notes, recordings and transcripts for the CCWG ACCT meeting #58 - 6 October will be available here: https://community.icann.org/x/3JxYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM - Steve DelBianco to reach out to Thomas Schneider to enquire about status of language. ACTION ITEM - Bruce Tonkin - in Board liaison capacity - to get back to CCWG on advanced notice and to clarify process. ACTION ITEM - Legal counsel to identify memos that address GAC related issues/questions ACTION ITEM - Cochairs to send an outline of certified questions to lawyers. ACTION ITEM - Identify relevant part of memo that addresses specifically MEM concern and share with Board so we are clear about legal aspects. ACTION ITEM - Steve DelBianco Jonathan Zuck and Kavouss Arasteh to hold short briefing with legal counsel on plan B proposal so that it can be fleshed out and lead to a more detailed discussion. 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. Please be kindly reminded to fill in your statement of interest. Status updates Oct 12 is the deadline for WP papers. They will be added to the reading list for Dublin. We have increased Board participation in WP calls. Kudos to volunteers. We look forward to prepared summaries for Dublin. WP 1 We have been working through analysis of public comments. Next call will deal with public comments received on community forum, sole member model, Bylaws and removal of individual directors. We will also need to conduct a second reading of public comments. We will have set of issues to discuss by Dublin meeting. We may need an additional call. WP2 We have worked on issues related to mission, core values, IRP. We will have write-ups for discussion in Dublin. We will need to schedule an additional call. WP3 We will be holding a call later today. We will use Jonathan Zuck's model to assess Work Stream 2 items. WP4 We will be holding a call later today/tomorrow. We have assigned work to volunteers who are following Jonathan Zuck model to assess comments received on human rights. ST-WP A call will be held tomorrow to compile and analyze comments received. Some comments recommend that we dive deeper. Comments also focus on stress tests 21, 29, 30. ACTION ITEM - Steve DelBianco to reach out to Thomas Schneider to enquire about status of language. Feedback; - Too many calls and low attendance on calls. To what extent are WPs taking into account Board comments and outcome of LA meeting? --> Work parties are not decision-making bodies. It is important to take into account Board comments as much as other comments. They need to be properly assessed and taken into account. Transparency on Board briefing This is a follow-up on conversation held on public list. Cochairs wrote to Steve Crocker after LA meeting on Sept 28. It was suggested that Board meetings on accountability as well as communications would benefit from being public. Steve agreed to share briefing materials, have Cochairs brief Board on new developments and would look into adjusting schedule to enable further changes. Are additional steps required or have we adequately conveyed this? Feedback: - Was this based on specific advice from counsel and if so, could that be shared with group. - There was a Board informational call today. If there is any specific advice, it will be shared. Could inform you of upcoming informational calls and topics discussed. ACTION ITEM - Bruce Tonkin - in Board liaison capacity - to get back to CCWG on advanced notice and to clarify process. Legal Requests We would like to certify questions sent on list with respect to fiduciary duties, SO/AC rights to select directors. They will be sent in a separate email. Legal counsel will also be requested to kick off drafting of AoC reviews Bylaws. A document was received from ICANN legal but it was sent back as we need a redline. We will be beginning work with our legal advisors. Feedback: - Clear description needed. Under what conditions is a judgement available should Board decide to participate in IRP - could you clarify if certified? We have concerns that we are limited to participate in these discussions. When silent on issue, it does not mean we are in agreement. ICANN legal is not on a similar restriction. We are waiting for questions to be certified to weigh in. On bylaws drafting, we have received draft. Language CCWG has been working on has been dropped into bylaws and it is not clear that there have been additional changes. --> IRP related question will be included in certified questions. Weighing in on list on previously certified questions is OK. It would be useful for you to flag these moving forward so that we can keep track of costs. - Emphasis on certification is too constraining. Certification is important but if there is response that can be made in real time, we would benefit from having counsel being able to speak. --> We will require lawyers to flag any uncertified questions. - Should we consider certifying question about whether ICANN as it stands now is already a designator model. It could be useful to task our lawyers to further analyze whether current model is a designator model. --> This clarification would be welcome. Conclusion: counsel can respond to follow-up questions to already-certified questions, when no additional research or significant drafting is required ACTION ITEM - Legal counsel to identify memos that address GAC related issues/questions ACTION ITEM - Cochairs to send an outline of certified questions to lawyers. Summary of recent email list discussions Objective is to share perspectives on discussions. Key issue for several stakeholders is whether SO/ACs are sufficiently accountable to global internet community to be provided with community powers and ultimate enforceability of these powers. We still don't have definition of what kind of changes would be needed to SO/AC structure to make it acceptable. There is also a lot of discussion regarding voting. We are seeing a lot of traction on investigating model based on consensus. We are seeing acknowledgement that it will be difficult to convince that membership of model needed. Designator model is getting traction. Steve Crocker's email made it clear that it would not be acceptable. Suggestion was made on list: membership is means to achieve enforceability but if we can get to enforceability without membership, we can get our job done. Board supports community powers. Plan B would be to activate membership gene. Feedback: - Was there significant public comment on the Second draft report to the effect that SOs and ACs are not accountable enough to support the sole member model? --> Due diligence has not been conducted yet. It is definitely not unrooted from concerns raised in public comment. - Concerns that model needs to be tested first. We need stability. - Board broadly support focus on finishing details for enforceable powers. We should continue to work on refining powers, IRP process to make sure community has a way to hold Board to account. If we focus on enforcement it can be a constructive discussion. - Can we come up with enforceable powers or not? Our principle goal is empowerment of community. - Plan is a good start and should be taken into consideration. Voting is a concern - in favor of consensus. - We have to look at a number of realities. CCWG proposal must be approved by COs and Board will need to implement new Bylaws. If Board believes it is not interest of ICANN, it will not get done. We need dialogue between Board, lawyers, CCWG. --> We are working on revised timeline that will inform discussion. - None of us know what will be approved by SGs. We don't have consensus in community on model yet. It is what we should be focusing on first. If Board advises on what it wants to see - can get to a constructive discussion - Constraint of what Board will approve is important. - We have a time constraint. Suggestion that Jonathan and/or Steve write clear proposal and seek whether this can be acceptable or not. It would enable us to go to Dublin with something we can elaborate on. - We should first try to stay within Boad redlines and try to deliver. If we find it impossible, we should go outside these lines. If we show that we cannot deliver powers and enforceability we agree on - within the existing structure. We should first see whether we can deliver. - We need to be careful in how we define redlines. We have been tasked to develop a consensus based proposal developed through bottom up. Is it community based if Board is limiting options? We need to be open in what we would like to see and addressing concerns, - We need to decide which direction we want to go into. - It is up to lawyers to articulate degree of enforceability with or without designator. A consensus of AC/SOs could trigger it at any time. Would welcome input around governance review. Intention is to activate gene of membership. --> if a consensus of SO/AC triggers governance review, what if the Board disagrees? How would that be enforceable? --> It would take 2/3 of Board majority to reject it. If we still want to convert to a membership it would require 3/4 of Board to reject. This means we would recall Board. - We should not make enforceability a complex question. It ought to be factually driveable and we could build proposal around these facts. - We have to find way forward. We have to see to what extent we need to improve that. Let's work on Steve's approach. - Convergence would be two parallel tracks: 1) Conversation from Jonathan and Steve; 2) Work of WPs with Board participation. We should be further refining requirements for community powers taking into account comments. Discussion on diversity is key to exercise. It might help for future conversations on model. When considering decision-making process for exercising community powers, if we strive for consensus to address any concerns of capture, we will be able to see what legal vehicle is needed to implement this. Conclusion: follow up on this conversation on list. We will try to take stock of exchanges of emails. We will need to assess in which areas various models would be enforceable as well as how a second phase become acceptable - what would be the conditions that would trigger second review i.e. what would imply conditions that are met for second review. Board is asking for enforceability, not trust. - There is no agreement on enforceability. We want a certain set of requirements to be met - ask law firms to work on that and to get back to you with text. Happy to work on requirements And to organize a call with lawyers to agree on framework. ---> Instructions to lawyers would not be as clear as private. We are in multistakeholder process. There is still refinement and gaps to bridge in that regard. * We have attempted to keep it simple per NTIA criteria but some think it is not enforceable. --> Disagreement between lawyers on enforceability on MEM - what does it mean for trust in enforceability? It has not been clearly conveyed to Board what concern is. ACTION ITEM - Identify relevant part of memo that addresses specifically MEM concern and share with Board so we are clear about legal aspects. - A shared comparison of IRP compared to second draft proposal may help shed light. Binding arbitration is binding. What do you need to have to get to binding. Under some legal mechanisms some powers are not available in same way. We need to rely on direct enforcement powers. Power to recall Board and remove directors can be powerful. You need to make sure u do it in legally enforceable way. We designed legal models around how we best achieve legally enforceable powers. Legal mechanisms and enforceability are all intertwined. --> If we choose ability to remove directors, and then there is a dispute process, does the mechanism as proposed by MEM give ability to remove directors enforceable? ---> There is risk in terms of enforceability. How is that right expressed? Is it a designator right or is it expressed in a different way. Who has standing to enforce right. Challenges and uncertainties are greater. ----> Third parties can be given rights but it remains to be seen how stable it is to enforce these rights. If you don't know legal person enforcing rights, it might be in theory enforceable but there might be a lot of barriers. They can't enforce other people's rights. Underlying issue of MEM predates. Did it come into existence. It has claim. Ongoing unincorporated association are a legal person at any relevant time. It is one last issue that could be raised. Are they going to be willing to put themselves in line and go through litigation to make sure this right is enforced. Our assessment is that MEM is limited. - Board proposed that Chairs be enforcers. We look at that and discouraged it Chairs may not want to take legal responsibility; until we see it model is under question. Conclusion - Core issue is not about legal/model - it is about conclusion of mutual accountability and sharing of stewardship. Balance has to be moved but Board does not see what we were seeing. We need a way to get enforceable powers and not forget underlying expectation that enhancement include significant work on core issue. ACTION ITEM - Steve DelBianco Jonathan Zuck and Kavouss Arasteh to hold short briefing with legal counsel on plan B proposal so that it can be fleshed out and lead to a more detailed discussion. AOB - There are two upcoming coordination meetings: 1) transition facilitation program call: monthly call scheduled in July with various groups including NTIA; 2) call with SO/AC leaders including update to SO/AC Chairs for them to organize planning for Dublin sessions. - Any question from lawyers should come to Cochairs and we should have list of questions that have been answered or not so there is diligent tracking.