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Staff input on implementability
by Brian Cute Dec. 10, 2013

Dec. 10, 2013

All, Attached are notes I prepared in response to some of Staff's inputs on implementability. I offer this as a guide to our discussion on the call tomorrow. I also offer the following caveats: 1. These notes reflect my individual view and are offered as a strawman for discussion purposes; 2. I was unable to provide reactions to all of Staff's inputs; 3. I will use this table to register discussion during our call tomorrow to guide drafting of the Report and Recommendations. Looking forward to the call tomorrow. Regards, Brian

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Proposed work schedule
by Brian Cute Dec. 10, 2013

Dec. 10, 2013

All, Attached is a proposed work schedule between today and December 20 for discussion on our call tomorrow. Regards, Brian

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Proposed Agenda - ATRT2 Call on 10 December
by Larisa B. Gurnick Dec. 10, 2013

Dec. 10, 2013

Dear Review Team, Attached is the proposed agenda for tomorrow's call. Best regards, Larisa B. Gurnick Consultant/Senior Director, Organizational Reviews Internet Corporation for Assigned Names and Numbers (ICANN) larisa.gurnick(a)icann.org<mailto:larisa.gurnick@icann.org> 310 383-8995

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Preliminary Staff Assessment/Response to ATRT2 Draft Recommendations
by Denise Michel Dec. 9, 2013

Dec. 9, 2013

Dear ATRT2 Members, Staff appreciates the opportunity to engage with the Review Team in our ongoing information sharing and discussions focused on our mutual goal a Final Report that makes a significant and valuable contribution to ICANN¹s accountability and transparency by offering recommendations that are necessary, feasible and implementable. Having reviewed and considered the Draft ATRT2 Report and Recommendations, staff from numerous departments have prepared the attached document as initial feedback and to support further interactions with ATRT2. Staff welcomes the opportunity for follow-up discussions within the next few days, recognizing the compressed timeline under which the ATRT2 is working. Larisa and Charla have already arranged conference calls on some topics and look forward to supporting additional calls and email inquiries. Staff is pleased to observe that there is a significant alignment between ATRT2 findings and draft recommendations, and work that is underway at ICANN. This alignment represents a positive development in the evolution of the AoC Reviews and staff suggests that it be noted in the ATRT2¹s observations, and that ongoing work be factored into future reviews. For recommendations where work is already underway, staff proposes, for the ATRT2¹s consideration, that such recommendations be replaced with observations acknowledging the work currently being performed. ICANN commits to providing public status reports, milestones and deliverables to keep the community informed about this work. Such reporting is well aligned with the concept of an annual Accountability Report, requested by the ATRT2. Annual Accountability Reporting also is anticipated to be an important vehicle for communicating ICANN¹s continuous improvement efforts in accountability and the implementation of the Accountability Framework for measuring ICANN¹s progress through benchmarks and metrics, which will be informed by the work of One World Trust. In addition, at the beginning of the ATRT2 process, Fadi had expressed his enthusiasm for the work of the ATRT2 along with his overarching request that the work of the Review Team would result in a small number of focused, high impact recommendations that staff, Board and the community could implement. Based on experience to date, we know that the large number of ATRT2 potential recommendations and sub-recommendations would require a significant amount of resources from staff, Board and community public consultations, tracking, reporting, and ultimately assessment by the subsequent Review Team (for recommendations that address work underway; for new recommendations resources also will be required to develop and execute implementation plans). In considering staff proposals to replace certain recommendations with observations, the Review Team may wish to consider several factors, such as the concern about ³review fatigue,² challenges faced by the Review Team in getting substantive feedback from a diverse cross-section of the ICANN community, as well as requests for simplification of information to make it more accessible to a wider audience, not just those with deep knowledge and experience at ICANN. We hope you find staff¹s initial input on each of the draft recommendations and sub-recommendations useful and staff welcomes the opportunity to elaborate. Again, we would like to acknowledge the value of ATRT2¹s work and its importance to the legitimacy of ICANN. We also wish to thank all the members of the ATRT2 for their dedication and hard work. Staff is committed to supporting and assisting the work of the Review Team during these final few weeks of your work. Regards, Denise Denise Michel VP Strategic Initiatives ICANN denise.michel(a)icann.org

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ATRT2 Final Report Planning and Timeline
by Larisa B. Gurnick Dec. 7, 2013

Dec. 7, 2013

Brian, Lise, Avri, and Alan, Since several of you were not able to join the call yesterday to discuss the Final Report process, it was agreed that staff would put together a list of proposed action items and highlight several important timing matters for your planning and consideration. (Recording of yesterday's call is available at http://audio.icann.org/atrt2-20131205-en.mp3.) Because of the tight time frame, I am also copying the full Review Team. DECEMBER 2013 - PROPOSED SCHEDULE Highlighted items represent milestones/due dates proposed in order to finalize the report on 23 December. Please let me know your availability to discuss this schedule in more detail prior to the Tuesday full team call. SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY 1 2 16:00-18:00 UTC ATRT2 full team call 3 4 5 16:00-17:00 UTC Coordination call - report planning Initial staff response delivered to ATRT2 6 7 8 9 -Assign ATRT2 members to work with staff and finalize recommendations; -Designate one ATRT2 member to be the point person 10 15:00-18:00 UTC: ATRT2 full team call - GSE team Ombudsman; 11 Calls between ATRT2 and staff, as needed 12 Calls between ATRT2 and staff, as needed 13 Public comment period closes Calls between ATRT2 and staff, as needed 14 15 16 16:00 UTC Content for each Rec. due to staff for compilation 17 16:00 UTC: Final Report Draft #1 to ATRT2 20:00-22:00 UTC: ATRT2 full team call 18 23:00 UTC: Final content changes due from ATRT2 to staff; Final Executive Summary due from ATRT2 19 23:00 UTC: Final Report Draft #2 to ATRT2 for review 20 23:00 UTC: Final minor proofing, format changes, minor edits due from ATRT2 to staff 21 22 23 ATRT2 final report produced - English version; submitted for translation 24 25 CHRISTMAS 26 27 28 29 30 31 KEY CONSIDERATIONS 1. Consider having original author(s) of each recommendation * review public comments, community feedback from BA and staff feedback * interact with staff, as needed * draft revisions to recommendations, as needed 2. Designate one ATRT2 member to be the point person for providing staff with final/agreed upon content to be included in the report 3. Inclusion of community feedback on draft recommendations - to what extent will feedback be incorporated in the final report? 4. Action-Staff responsibilities relative to production of Final Report * Compiling ATRT2 edits * Making edit recommendations for consistency, clarity and grammatical accuracy; proofing * Formatting, consolidating report components, including exhibits, into a single document ready for publication and translation * Coordinating translation of the report and publication on the ICANN web site 5. Timing of publishing final report with translations - tbd based on the number of edits (early January 2014) FEEDBACK FROM COMMUNITY 1. Public comment reply period closes on 13 December * To date, 8 comments have been submitted<http://forum.icann.org/lists/comments-atrt2-recommendations-21oct13/>, of which 5 represent responses pertaining to the ATRT2 Report * Expectation that several more comments will be posted prior to the due date * Action-ATRT2: Public comments to be reviewed, discussed and incorporated into the final report as appropriate * Action-Staff: Prepare a summary of comments after reply period closes 1. Action-ATRT2: Comments received during the BA consultations to be incorporated into the final report as appropriate FEEDBACK FROM STAFF 1. Initial assessment of each draft recommendation -delivered on 5 December (ahead of the original due date of 9 December<http://mm.icann.org/pipermail/atrt2/attachments/20131017/3d5491fc/image002-…>) 2. Action- Staff/ATRT2: discussions as necessary to take place next week between designated ATRT2 members and staff; GSE team scheduled on 10 December Best regards, Larisa B. Gurnick Consultant/Senior Director, Organizational Reviews Internet Corporation for Assigned Names and Numbers (ICANN) larisa.gurnick(a)icann.org<mailto:larisa.gurnick@icann.org> 310 383-8995

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My recommended changes
by Avri Doria Dec. 6, 2013

Dec. 6, 2013

Hi, Since my laptop died and my new one was delayed in shipping, I still do not have adequate word capability. I have made my recommended changes below, apologies for my inability to do redline. 4 Develop complementary mechanisms for SO/AC consultation on administrative and executive issues to be addressed at the Board level. (Re: policy vs. implementation vs. executive function distinction (ATRT1 6); Report Section 5) Replace with: 4 Develop mechanisms whereby the Supporting Organizations and Advisory Committees (SO/AC ) can consult with the Board on issues determined to be administrative and executive issues. (Re: policy vs. implementation vs. executive function distinction (ATRT1 6); Report Section 5) 9.2. Explore Options for Restructuring Current Review Mechanisms The ICANN Board should convene a Special Community Committee to discuss options for improving Board accountability with regard to restructuring of the Independent Review Panel (IRP) and the Reconsideration Process. The group will use the report of the Experts Group Report (ESEP) on Restructuring as one basis for its discussions. Replace with: 9.2. Explore Options for Restructuring Current Review Mechanisms The ICANN Board should convene a Special Community Committee to discuss options for improving Board accountability with regard to restructuring of the Independent Review Panel (IRP) and the Reconsideration Process. The group will use the report of the Experts Group Report (ESEP) on Restructuring as one basis for its discussions. All recommendation of this Special Community Committee would be subject to full community participation, consultation and review. 9.5. Establish a Viable Whistleblower Program Adopt the One World Trust and/or Berkman Center recommendations to establish a viable whistleblower program. The processes for ICANN employee transparency and whistleblowing should be made public. ICANN also should arrange for an annual professional audit of its whistleblower policy to insure that the program meets the global best practices. Replace with 9.5. Determine the Viabilty of the ICANN Whistleblower Program (aka the employee hotline) and implement any necessary improvements Adopt the One World Trust recommendations to establish a viable whistleblower program. The processes for ICANN employee transparency and whistleblowing should be made public. ICANN also should arrange for an annual professional audit of its whistleblower policy to insure that the program meets the global best practices. ~~~ avri

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Re: [atrt2] Preliminary Staff Assessment/Response to ATRT2 Draft Recommendations
by Larisa B. Gurnick Dec. 6, 2013

Dec. 6, 2013

Dear ATRT2 Members, Attached PDF has been updated to include links to relevant documents. Larisa From: atrt2-bounces(a)icann.org [mailto:atrt2-bounces@icann.org] On Behalf Of Denise Michel Sent: Thursday, December 05, 2013 6:21 PM To: atrt2(a)icann.org Subject: [atrt2] Preliminary Staff Assessment/Response to ATRT2 Draft Recommendations Dear ATRT2 Members, Staff appreciates the opportunity to engage with the Review Team in our ongoing information sharing and discussions focused on our mutual goal - a Final Report that makes a significant and valuable contribution to ICANN's accountability and transparency by offering recommendations that are necessary, feasible and implementable. Having reviewed and considered the Draft ATRT2 Report and Recommendations, staff from numerous departments have prepared the attached document as initial feedback and to support further interactions with ATRT2. Staff welcomes the opportunity for follow-up discussions within the next few days, recognizing the compressed timeline under which the ATRT2 is working. Larisa and Charla have already arranged conference calls on some topics and look forward to supporting additional calls and email inquiries. Staff is pleased to observe that there is a significant alignment between ATRT2 findings and draft recommendations, and work that is underway at ICANN. This alignment represents a positive development in the evolution of the AoC Reviews and staff suggests that it be noted in the ATRT2's observations, and that ongoing work be factored into future reviews. For recommendations where work is already underway, staff proposes, for the ATRT2's consideration, that such recommendations be replaced with observations acknowledging the work currently being performed. ICANN commits to providing public status reports, milestones and deliverables to keep the community informed about this work. Such reporting is well aligned with the concept of an annual Accountability Report, requested by the ATRT2. Annual Accountability Reporting also is anticipated to be an important vehicle for communicating ICANN's continuous improvement efforts in accountability and the implementation of the Accountability Framework for measuring ICANN's progress through benchmarks and metrics, which will be informed by the work of One World Trust. In addition, at the beginning of the ATRT2 process, Fadi had expressed his enthusiasm for the work of the ATRT2 along with his overarching request that the work of the Review Team would result in a small number of focused, high impact recommendations that staff, Board and the community could implement. Based on experience to date, we know that the large number of ATRT2 potential recommendations and sub-recommendations would require a significant amount of resources from staff, Board and community - public consultations, tracking, reporting, and ultimately assessment by the subsequent Review Team (for recommendations that address work underway; for new recommendations resources also will be required to develop and execute implementation plans). In considering staff proposals to replace certain recommendations with observations, the Review Team may wish to consider several factors, such as the concern about "review fatigue," challenges faced by the Review Team in getting substantive feedback from a diverse cross-section of the ICANN community, as well as requests for simplification of information to make it more accessible to a wider audience, not just those with deep knowledge and experience at ICANN. We hope you find staff's initial input on each of the draft recommendations and sub-recommendations useful and staff welcomes the opportunity to elaborate. Again, we would like to acknowledge the value of ATRT2's work and its importance to the legitimacy of ICANN. We also wish to thank all the members of the ATRT2 for their dedication and hard work. Staff is committed to supporting and assisting the work of the Review Team during these final few weeks of your work. Regards, Denise Denise Michel VP Strategic Initiatives ICANN denise.michel(a)icann.org<mailto:denise.michel@icann.org>

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Ombudsman
by Avri Doria Dec. 4, 2013

Dec. 4, 2013

Hi, Spoke to Chris as was discussed in the meeting. He would like to join us in a call if possible. I think he is also working on some comments. avri

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Finances - rev2 - rec. 12.4
by Jørgen C Abild Andersen Dec. 4, 2013

Dec. 4, 2013

Dear colleagues Following up on yesterday's conference call please find attached v. 2 of recommendation 12.4 including the change we agreed yesterday. For your convenience I also attach the original version which we discussed yesterday (Financial Accountability and Transparency draft changes 27.11.13) This version include some changes in the original text from the report. These changes were all agreed yesterday with the exception of the change indicated in the v. 2 doc. Best regards Jørgen

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Staff follow-up on "Bylaws amendment" discussion
by Denise Michel Dec. 3, 2013

Dec. 3, 2013

Dear ATRT2 members: Below is staff's response on this issue. Larisa will return from vacation on Thursday. Please let me know if you need additional information before then. Regards, Denise --------------------------------- First, it is important to recall the explanations that staff has previously provided to the ATRT2 regarding the timing of the passage of the Bylaws amendments. In the attached note from 16 September 2013, we explained that the characterization that the Bylaws amendments were passed "without discussion" in April 2013 is a misrepresentation of the documented history. The Bylaws amendments were actually approved in December 2012, after Board discussion and documented briefing, and following from that discussion and decision, the April 2013 action was setting an effective date for the previously approved Bylaws. While this does not fully address the discussion below, having a clear understanding of the process as it occurred is important. The incorporation of a standard of review into the Independent Review Process does not, as the commenter states below, create a limitation that a claimant will only be successful where "a claimant in an IRP can prove that the violation was the result of 'fraud, bad faith, overreaching or an unreasonable failure to investigate material facts.'" To be clear, those words do NOT appear in the Bylaws . Indeed, there is no reference for the quote as provided by the commenter. While the commenter is correct that the Bylaws revision do incorporate a standard of review into the IRP proceedings, it is important to note that the grounds for bringing an IRP *have not been changed in any way, and have not been restricted.* As a California corporation, the business judgment rule does apply to the acts of the Board. That's a reality that ICANN cannot change, just as ICANN cannot cede its decision making to a third party. What the experts recommended, and ICANN implemented, is that there is a place for the business judgment rule considerations to be brought into the IRP proceedings, as opposed to wasting millions of dollars in attorney time and panelist time (and the requester's and ICANN's money) fighting about what an appropriate standard of review could be in an IRP proceeding. By incorporating a standard of review – a similar standard that would be applicable in any court challenge to the Board's action – the IRP can then focus on the substantive issues posed by the IRP filing, instead of trying to design a standard of review in each proceeding, and risking that each would differ. In the IRP, there is no requirement for deference to the Board's decisions, as the commenter states below. There is guidance on how those decisions that are challenged should be reviewed. In the end, no IRPs have gone through to determination since the Bylaws were adopted. Instead of surmising about what the potential outcome of future IRP proceedings could be because of the Bylaws amendments, there should be an opportunity for the Bylaws revisions to be utilized, to see if there is any change to ICANN's accountability while allowing for more efficient proceedings. It is not clear what the commenter would request be put in place in the alternative, as it does not appear to enhance ICANN's accountability or community access to proceedings if each person seeking to file an IRP believes that it is necessary to have a protracted fight about the standard against which Board actions are to be measured – as seen in the ICM matter, that is an extremely costly endeavor. We've seen how the previous version of the Bylaws function; it is now time to allow for the ASEP-recommended changes to be utilized, and then further review can take place. -- Samantha Eisner Senior Counsel, ICANN Amy A. Stathos Deputy General Counsel On Tue, Nov 19, 2013 at 2:55 PM, Paul Diaz <pdiaz(a)pir.org> wrote: > This is Becky Burr's support for her claim, backed by the RySG, that the > ICANN Bylaws change related to Reconsideration Requests reduced the > accountability protections of the IRP. > > > Begin forwarded message: > > *From: *"Burr, Becky" <Becky.Burr(a)neustar.biz> > *Subject: **Bylaws amendment* > *Date: *November 19, 2013 6:23:36 PM GMT-03:00 > *To: *Paul Diaz <pdiaz(a)pir.org>, "bcute(a)pir.org" <bcute(a)pir.org> > > *Summary*. The 11 April 2013 Bylaws amendment replaced the substantive > requirements of its Articles of Incorporation and Bylaws with California’s > “Deferential Business Judgment Rule” as the yardstick against which Board > Actions should be measured in an IRP. In ICANN’s own words, this standard > would require IRP Panelists to dismiss IRP Requests unless the claimant can > prove that the Board’s decision involved “fraud, bad faith, overreaching or > an unreasonable failure to investigate material facts.” See *ICM v. > ICANN*, ICANN’s Response to Claimants Memorial on the Merits, §128. > > > *Discussion*. The Bylaws amendment, adopted by the Board without > discussion on 11 April 2013, significantly narrows the scope of the IRP and > profoundly diminishes the measure of accountability it provides. Under the > new standard, ICANN will not be held accountable for any violation of its > Bylaws unless the claimant in an IRP can prove that the violation was the > result of “fraud, bad faith, overreaching or an unreasonable failure to > investigate material facts.” As ICANN staff is well aware, there is no > credible basis for arguing that this change preserves – let alone expands – > accountability protections. > > > The Pre-Amendment Bylaws provided that request for independent review: > > > *shall be referred to an Independent Review Process Panel ("IRP Panel"), > which shall be charged with comparing contested actions of the Board to the > Articles of Incorporation and Bylaws, and with declaring whether the Board > has acted consistently with the provisions of those Articles of > Incorporation and Bylaws. * > > > The Amended Bylaws contain the following new language: > > > *The IRP Panel must apply a defined standard of review to the IRP > request, focusing on: **did the Board act without conflict of interest in > taking its decision?; did the Board exercise due diligence and care in > having a reasonable amount of facts in front of them?; and did the Board > members exercise independent judgment in taking the decision, believed to > be in the best interests of the company.* > > > This new language is a restatement of California’s “Deferential Business > Judgment Rule.” Under that rule, a California court will protect > individual directors from liability for Board actions “even if a reasonable > person would have acted differently, provided the board acted (i) in good > faith, (ii) in the best interests of the association, and (iii) upon > reasonable investigation*. **Lamden v. La Jolla Shores > <http://www.davis-stirling.com/tabid/835/Default.aspx>*, (1999) 21 > Cal.4th 249. The Business Judgment Rule, however, "provides protection > from personal liability for the *individual directors* of a non-profit [ > ] association. It does not follow and is not true that the same rule of > judicial deference will also automatically provide cover to the entity > itself.” *Ritter and Ritter v. Churchill, *(2008) 166 Cal.App.4th 103 > > > ICANN urged the Panelists in ICM v. ICANN to evaluate the Board’s > liability under the deferential business judgment rule. In ICANN’s view, > ICM claims should be dismissed unless it could prove that the Board’s > decision reflected “fraud, bad faith, overreaching or an unreasonable > failure to investigate material facts.” See ICANN’s Response to Claimants > Memorial on the Merits, §128. > > > A majority of the Panel rejected firmly rejected ICANN’s argument. > Instead, it conducted a de novo review of the facts, and applied the Bylaw > requirements without significant deference to the Board. The Majority > declared that ICANN is bound by its Articles of Incorporation and Bylaws, > which “require ICANN to carry out its activities in conformity with > relevant principles of international law,” and > > > do not specify or imply that the International Review Process provided > for shall (or shall not) accord deference to the decisions of the ICANN > Board. The fact that the Board is empowered to exercise its judgment in the > application of ICANN’s sometimes competing core values does not necessarily > import that that judgment must be treated deferentially by the IRP. In the > view of the Panel, the judgments of the ICANN Board are to be reviewed and > appraised by the Panel objectively, not deferentially. *The business > judgment rule of the law of California, applicable to directors of > California corporations, profit and nonprofit, in the case of ICANN is to > be treated as a default rule that might be called upon in the absence of > relevant provisions of ICANN’s Articles and Bylaws and of specific > representations of ICANN – as in the RFP – that bear on the propriety of > its conduct.* *In the instant case, it is those Articles and Bylaws, and > those representations, measured against the facts as the Panel finds them, > which are determinative. * > > J. Beckwith Burr > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / > becky.burr(a)neustar.biz / www.neustar.biz > > > > _______________________________________________ > atrt2 mailing list > atrt2(a)icann.org > https://mm.icann.org/mailman/listinfo/atrt2 > >

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