Regarding the conflicts question, senior US government employees are subject to several post-employment conflict of interest policies. As you will see from the list, nothing prohibits an individual from working on an issue that they worked on as a government employee. Rather, they are precluded from representing a third party before the government - i.e., exploiting their relationship with former colleagues. 1. Permanent restriction on any former employee's representations to United States concerning particular matter in which the employee participated personally and substantially. 2. Two-year restriction on any former employee's representations to United States concerning particular matter for which the employee had official responsibility. 3. One-year restriction on any former employee's representations, aid, or advice concerning ongoing trade or treaty negotiation. 4. One-year restriction on any former senior employee's representations to former agency concerning any matter, regardless of prior involvement 5. Two-year restriction on any former very senior employee's representations to former agency or certain officials concerning any matter, regardless of prior involvement. 6. One-year restriction on any former senior or very senior employee's representations on behalf of, or aid or advice to, foreign entity. 7. One-year restriction on any former private sector assignee under the Information Technology Exchange Program representing, aiding, counseling or assisting in representing in connection with any contract with former agency http://www.usoge.gov/laws_regs/regulations/5cfr2641.aspx There are, of course, prohibitions about conflicts of interest while serving as a government employee. Those won't quite work in an organization like ICANN, but for information, here is the link. http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=e62a2086dab4071 9f9b70b63a58695eb&rgn=div5&view=text&node=5:3.0.10.10.9&idno=5#5:3.0.10. 10.9.4.50.2 J. Beckwith Burr | WilmerHale 1875 Pennsylvania Avenue NW Washington, DC 20006 USA +1 202 663 6695 (t) +1 202 663 6363 (f) becky.burr@wilmerhale.com Please consider the environment before printing this email. ________________________________ This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be privileged. If you are not the intended recipient, please notify us immediately-by replying to this message or by sending an email to postmaster@wilmerhale.com <mailto:postmaster@wilmerhale.com> -and destroy all copies of this message and any attachments. Thank you. For more information about WilmerHale, please visit us at http://www.wilmerhale.com <http://www.wilmerhale.com> . From: owner-ccnso-council@icann.org [mailto:owner-ccnso-council@icann.org] On Behalf Of Gabriella Schittek Sent: Thursday, August 18, 2011 11:00 AM To: ccnso-council@icann.org Subject: FW: [ccnso-council] Preparation Material Council Call 23 August 12.00 UTC Dear Councillors, I just posted the email below to the Council email list. As it contains a lot of attachments you may not have received it - if so, please, let me know and I'll re-send the attachments to you one by one! Gabi ------ Forwarded Message From: Gabriella Schittek <gabriella.schittek@icann.org> Date: Thu, 18 Aug 2011 07:53:53 -0700 To: "ccnso-council@icann.org" <ccnso-council@icann.org> Subject: [ccnso-council] Preparation Material Council Call 23 August 12.00 UTC Updated Agenda - See Attachment 1. The updated agenda will also be published at ccnso.icann.org/calendar 1. Confirmation of Approval of Minutes and Actions council meeting 22 June 2011 See attachment 2 2. High-level de-Briefing on ccNSO Related Activities - Chair - Vice-chairs - Councillors 3. Work Plan Update See attachment 3, 4, 5 4. Approval of Timelines and Appointment of Election Manager (Gabriella Schittek) for: a. Council Election Process. Following councillors need to step down: Vika Mpisane (AF region) Young-Eum Lee (AP region) Juhani Juselius (EU region) Patricio Poblete (LAC region) Byron Holland (North American region) All are eligible for re-election Suggested Timeline: 23 August: Appointment of Election manager; approve timeline 26 August: Call for Nomination ccNSO Council; 16 September: Closure of nomination period 23 September: Acceptance of nomination by candidates; announcement of list of nominees; if two ore more: announcement that election needed If elections needed: 30 September: Publication list of electorate; Campaign period starts 7 October: Campaign period ends; ballots issued to members of voting electorate 21 October: Voting closes 28 October: Results announced (again, this is according to the guidelines, but I announce the results earlier). If ties: 4 November: Run of election in Region 11 November: Voting closes 14 November: Results announced b. Board Member Selection Process. Mike Silber's term as Board member is up at the June 2012 meeting. He is eligible for re-election. Suggested Timeline: 23 August: Appointment of Election manager; approve timeline 15 September: Call for nominations & secondments 6 October: Closure of nomination period 13 October: Acceptance of nomination by candidates; announcement of list of nominees; if two or more: announcement that election needed If elections needed: 25 October: Mission statement of candidates; public Q&A at ccNSO meeting 10 November: Call for votes, send out ballots 24 November: Closure of voting 1 December (latest): Inform about results (this is according to the guidelines, but I normally inform about the results straight after the closure and submit an election report. 5. Metrics GNSO Working Group Participation of ccNSO in process to develop consumer metrics. See attachment 6 6. JIG Working Group Motion on Charter Extension. The JIG WG has created a Work plan. The GNSO has extended the mandate of the JIG until 2012 accordingly. Decision needed: extension of charter of the JIG WG. Extension mandate JIG WG Background The Joint ccNSO/GNSO IDN Working Group (JIG) was created by adoption of the charter by the ccNSO (http://ccnso.icann.org/workinggroups/jiwg-charter.pdf) and the GNSO (http://gnso.icann.org/resolutions/#200907). Both the IDN ccTLD Fast Track Implementation Plan and the new gTLD process have been approved by the Board of Directors, bringing into effect condition in the charter of the WG that upon adoption of either the IDN ccTLD overall policy or the new gTLD process by the ICANN Board of Directors, the WG will be closed, unless both the ccNSO and GNSO Council extend the duration of the JIG WG. Upon its creation the JIG identified 3 issues of common interest: 1. Single Character IDN TLDs; 2. IDN Variant TLDs; and, 3. Universal Acceptance of IDN TLDs. The JIG has delivered a first report on Item 1 "Implementation of Single Character IDN TLD" to the ccNSO council and the GNSO council on date, which was adopted by both the GNSO Council and the ccNSO Council and delivered to the ICANN Board on May 11, 2011. At the request of the ICANN Board ICANN staff is looking into possible implementation issues and has sought clarification from the JIG and SSAC. At its meeting in Singapore the ccNSO extended the mandate of the JIG until 23 August, requesting a high-level work plan and schedule. The JIG WG proposed the following target timeline for completion of the remaining items of common interest: * 2011 Jul/Aug: Stocktaking & Development Initial Report for #3 (Public comments Sep 2011) * 2011 Sep/Oct: Completion of Initial Report for #2 (Public comments Nov 2011) * 2011 Nov/Dec: Completion of Draft Final Report for #2 (Public comments Feb/Mar 2012) * 2012 Jan/Feb: Completion of Draft Final Report for #3 (Public comments Feb/Mar 2012) * 2012 Mar: Finalization of Final Report for #2 * 2012 Apr: Finalization of Final Report for #3 * 2012 May-Oct: Implementation Follow up At its meeting on 21 July the GNSO extended the JIG charter through 2012 to complete its work. Proposed resolution: The JIG Working Group is extended through 2012 to complete work items Two (2. IDN Variant TLDs) and Three (3. Universal Acceptance of IDN TLDs ) as topics of mutual interest under the original charter. 7. Response to Rod Beckstrom letter on Security Issues and Use of Satellite Phones This is an action item from the previous Council meeting. Draft response included in the materials. See attachment 7 8. Working- and Other Group Updates 8.1 Finance Working Group (Chair: Byron Holland) 8.2 SOP Working Group (Chair: Roelof Meijer) 8.3 Framework of Interpretation Working Group (Chair: Keith Davidson) 8.4 IDN PDP Working Group 1 (Update: Bart Boswinkel) 8.5 IDN PDP Working Group 2 (Chair: Hiro Hotta) 8.6 Incident Repository Implementation Working Group (Update: Bart Boswinkel) 8.7 Joint ccNSO/GNSO IDN Working Group (JIG) (co-Chair: Jian Zhang, APTLD) 8.8 Joint Security & Stability Working Group (DSSA) (Update: Bart Boswinkel) 8.9 Study Group on Use of Names for Countries and Territories (Update: Bart Boswinkel) 8.10 GAC-ccNSO Liaison (Chair: Keith Davidson) 8.11 PPC Focus Group update (Sokol) See (some) written Working Group Updates - attachment 8 9. Dakar Preparations ccNSO Council The proposal is to have a preparatory Council meeting Monday 24 October, 11-12 am local time. 10. Results from the Call with ccNSO Appointed Board Members. a. Informal calls with ccNSO appointed Board members pre- and post ICANN meetings. - Continue update calls with ccNSO appointed Board members? - If to be continued, format of the meeting (no minutes, no recording, no action items, only councillors and Board members, agenda) and schedule b. Interaction with ICANN Board during the ICANN meeting, including possible changes Friday morning Board meeting. 11. Discussion on Extension of ICANN Board Conflict of Interest Rules. Immediate cause: Peter Dengate Thrush within two months after stepping down from the Board accepted and was appointed executive chairman of Mind & Machines, a company actively involved in the new gTLD process. 12. Liaison Updates 12.1 At-Large Liaison See attachment 9, 10, 11, 12, 13, 14 12.2 GNSO Liaison No written update provided. 13. AOB ------ End of Forwarded Message

To be clear, except in a very, very small number of cases, US Government ethics would NOT prevent someone from joining a board or becoming an employee of a company that they regulated while in government service. For the most part, the rules only prohibit appearing before the government on behalf of that client for some period of time, particularly on matters in which one was substantially involved. Meredith Atwell Baker, mentioned by Keith, is an absolutely on target example. As a member of the Federal Communications Commission, she approved the NBC/Comcast merger, and shortly thereafter went to work for Comcast. It is my understanding she consulted government ethics officials and was cleared to do this. I agree with Keith - this is an important issue, but one that deserves careful consideration. ICANN is a complex organization, and many people involved in running it are likely to come from the community and return to the community when their time of service comes to an end. We need to be sure that can happen in a transparent and ethical way (unless we want to have the board made up of people from outside the community). And, in my experience, being an ICANN "insider" and $5 will get you a Starbucks latte, but not much else ... J. Beckwith Burr | WilmerHale 1875 Pennsylvania Avenue NW Washington, DC 20006 USA +1 202 663 6695 (t) +1 202 663 6363 (f) becky.burr@wilmerhale.com Please consider the environment before printing this email. _____ This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be privileged. If you are not the intended recipient, please notify us immediately--by replying to this message or by sending an email to postmaster@wilmerhale.com--and destroy all copies of this message and any attachments. Thank you. For more information about WilmerHale, please visit us at www.wilmerhale.com. -----Original Message----- From: owner-ccnso-council@icann.org [mailto:owner-ccnso-council@icann.org] On Behalf Of Keith Davidson Sent: Tuesday, August 23, 2011 8:35 PM To: ccnso-council@icann.org Subject: Re: [ccnso-council] Preparation Material Council Call 23 August 12.00 UTC Thanks Becky, this is interesting and relevant. It should be noted too that there is significant consternation from some in the USA about high level political folks being able to by-pass the "cooling off" periods, and quoting http://en.wikipedia.org/wiki/Revolving_door_%28politics%29: "One big loophole is that these restrictions do not apply to many high-level policy makers..., who can join corporations or their boards without waiting." Examples of individuals who have moved between roles in this way in sensitive areas include Dick Cheney (military contracting), Linda Fisher (pesticide and biotech), Philip Perry (homeland security), Pat Toomey, Dan Coats, and former FCC commissioner Meredith Attwell Baker (media lobbying)." Also, in ICANN's past, there was little or no concern that Andrew Maclaughlin moved from a senior staff position in ICANN to Google (an ICANN Registrar) or Vint Cerf who moved from Chair of ICANN onto the Verisign advisory board within a short time of his departure - noting one of ICANNs chief roles is in fact the regulation / oversight of Verisign. Moving to Google or Verisign with their significant voices and revenues in the Internet world might be somewhat more "bad" than moving to M+M as a zero revenue start up. Likewise a move from, say, JJ on ICANN staff to M+M, who potentially penned the new gTLD contracts for ICANN, might be seen as a real conflict... It seems this issue is being pushed hard from outside ICANN, possibly from the anti-new-gTLD lobby, and causing distraction and disharmony in the ICANN arena may be the goal, or at the least, to put some pressure on the US Government to manage ICANN more closely - something I think we all agree is not desirable. As good governors here, lets consider the facts, and the legal issues only. Peter D-T and others have to wrestle with their own consciences regarding any moral or ethical decisions. When you reflect on PDTs decision versus those made by Cheney, Fisher, Perry, and "our very own" Meredith Attwell Baker and others, perhaps the seriousness of this instance becomes apparent? 1. ICANN could ask PDT and M+M if there were any negotiations regarding the appointment prior to PDT's departure from the ICANN board. If the answer is no, then there is no follow up process for ICANN. If the answer is yes, then ICANN could have some recourse against PDT. 2. Does the Board have appropriate conflict of interest and restraint of trade policies applicable to the board and staff of ICANN? If yes, no action, if no, recommend appropriate policies. Cheers Keith On 24/08/2011 1:16 a.m., Burr, Becky wrote:

Regarding the conflicts question, senior US government employees are subject to several post-employment conflict of interest policies. As you will see from the list, nothing prohibits an individual from working on an issue that they worked on as a government employee. Rather, they are precluded from representing a third party before the government - i.e., exploiting their relationship with former colleagues.

1.Permanent restriction on any former employee's representations to United States concerning particular matter in which the employee participated personally and substantially.

2.Two-year restriction on any former employee's representations to United States concerning particular matter for which the employee had official responsibility.

3.One-year restriction on any former employee's representations, aid, or advice concerning ongoing trade or treaty negotiation.

4.One-year restriction on any former senior employee's representations to former agency concerning any matter, regardless of prior involvement

5.Two-year restriction on any former very senior employee's representations to former agency or certain officials concerning any matter, regardless of prior involvement.

6.One-year restriction on any former senior or very senior employee's representations on behalf of, or aid or advice to, foreign entity.

7.One-year restriction on any former private sector assignee under the Information Technology Exchange Program representing, aiding, counseling or assisting in representing in connection with any contract with former agency

http://www.usoge.gov/laws_regs/regulations/5cfr2641.aspx

There are, of course, prohibitions about conflicts of interest while serving as a government employee. Those won't quite work in an organization like ICANN, but for information, here is the link.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=e62a2086dab4071 9f9b70b63a58695eb&rgn=div5&view=text&node=5:3.0.10.10.9&idno=5#5:3.0.10. 10.9.4.50.2

<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=e62a2086dab407 19f9b70b63a58695eb&rgn=div5&view=text&node=5:3.0.10.10.9&idno=5#5:3.0.10 .10.9.4.50.2>

*J. Beckwith Burr | **WilmerHale*

Hi I wrote a blog on this topic a couple of weeks ago. It has some links to how the World Bank as well as the Canadian government handles conflict/conduct rules that may be of interest for this discussion. http://blog.cira.ca/2011/07/rational-rules-beget-rational-behaviour/ Cheers Byron ________________________________________ From: owner-ccnso-council@icann.org [owner-ccnso-council@icann.org] On Behalf Of Lesley Cowley [lesley@nominet.org.uk] Sent: August 24, 2011 3:15 PM To: Burr, Becky; Keith Davidson; ccNSO Council Subject: Re: [ccnso-council] Preparation Material Council Call 23 August 12.00 UTC I have looked into the UK Government rules and, like the US, there is an ethics committee that reviews applications from people on a case by case basis. The rules apply to senior civil servants as well as politicians and try to strike a balance between public perception and the need for people to be employable post departure. Further info is at: http://acoba.independent.gov.uk/ Perhaps we could usefully collate best practice from around the globe to inform the discussion? Kind regards, Lesley Lesley Cowley, OBE CEO Nominet Minerva House Edmund Halley Road Oxford Science Park Oxford, OX4 4DQ UK Tel: +44-(0)-1865-332211 http://www.nominet.org.uk/ On 24/08/2011 14:11, "Burr, Becky" <Becky.Burr@wilmerhale.com> wrote:

To be clear, except in a very, very small number of cases, US Government ethics would NOT prevent someone from joining a board or becoming an employee of a company that they regulated while in government service. For the most part, the rules only prohibit appearing before the government on behalf of that client for some period of time, particularly on matters in which one was substantially involved. Meredith Atwell Baker, mentioned by Keith, is an absolutely on target example. As a member of the Federal Communications Commission, she approved the NBC/Comcast merger, and shortly thereafter went to work for Comcast. It is my understanding she consulted government ethics officials and was cleared to do this.

I agree with Keith - this is an important issue, but one that deserves careful consideration. ICANN is a complex organization, and many people involved in running it are likely to come from the community and return to the community when their time of service comes to an end. We need to be sure that can happen in a transparent and ethical way (unless we want to have the board made up of people from outside the community).

And, in my experience, being an ICANN "insider" and $5 will get you a Starbucks latte, but not much else ...

J. Beckwith Burr | WilmerHale 1875 Pennsylvania Avenue NW Washington, DC 20006 USA +1 202 663 6695 (t) +1 202 663 6363 (f) becky.burr@wilmerhale.com

Please consider the environment before printing this email. _____

This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be privileged. If you are not the intended recipient, please notify us immediately--by replying to this message or by sending an email to postmaster@wilmerhale.com--and destroy all copies of this message and any attachments. Thank you.

For more information about WilmerHale, please visit us at www.wilmerhale.com. -----Original Message----- From: owner-ccnso-council@icann.org [mailto:owner-ccnso-council@icann.org] On Behalf Of Keith Davidson Sent: Tuesday, August 23, 2011 8:35 PM To: ccnso-council@icann.org Subject: Re: [ccnso-council] Preparation Material Council Call 23 August 12.00 UTC

Thanks Becky, this is interesting and relevant. It should be noted too that there is significant consternation from some in the USA about high level political folks being able to by-pass the "cooling off" periods, and quoting http://en.wikipedia.org/wiki/Revolving_door_%28politics%29:

"One big loophole is that these restrictions do not apply to many high-level policy makers..., who can join corporations or their boards without waiting." Examples of individuals who have moved between roles in this way in sensitive areas include Dick Cheney (military contracting), Linda Fisher (pesticide and biotech), Philip Perry (homeland security), Pat Toomey, Dan Coats, and former FCC commissioner Meredith Attwell Baker (media lobbying)."

Also, in ICANN's past, there was little or no concern that Andrew Maclaughlin moved from a senior staff position in ICANN to Google (an ICANN Registrar) or Vint Cerf who moved from Chair of ICANN onto the Verisign advisory board within a short time of his departure - noting one of ICANNs chief roles is in fact the regulation / oversight of Verisign. Moving to Google or Verisign with their significant voices and

revenues in the Internet world might be somewhat more "bad" than moving to M+M as a zero revenue start up. Likewise a move from, say, JJ on ICANN staff to M+M, who potentially penned the new gTLD contracts for ICANN, might be seen as a real conflict...

It seems this issue is being pushed hard from outside ICANN, possibly from the anti-new-gTLD lobby, and causing distraction and disharmony in the ICANN arena may be the goal, or at the least, to put some pressure on the US Government to manage ICANN more closely - something I think we

all agree is not desirable.

As good governors here, lets consider the facts, and the legal issues only. Peter D-T and others have to wrestle with their own consciences regarding any moral or ethical decisions.

When you reflect on PDTs decision versus those made by Cheney, Fisher, Perry, and "our very own" Meredith Attwell Baker and others, perhaps the

seriousness of this instance becomes apparent?

1. ICANN could ask PDT and M+M if there were any negotiations regarding the appointment prior to PDT's departure from the ICANN board. If the answer is no, then there is no follow up process for ICANN. If the answer is yes, then ICANN could have some recourse against PDT.

2. Does the Board have appropriate conflict of interest and restraint of

trade policies applicable to the board and staff of ICANN? If yes, no action, if no, recommend appropriate policies.

Cheers

Keith

On 24/08/2011 1:16 a.m., Burr, Becky wrote:

...

Regarding the conflicts question, senior US government employees are subject to several post-employment conflict of interest policies. As you will see from the list, nothing prohibits an individual from working on an issue that they worked on as a government employee. Rather, they are precluded from representing a third party before the government - i.e., exploiting their relationship with former colleagues.

1.Permanent restriction on any former employee's representations to United States concerning particular matter in which the employee participated personally and substantially.

2.Two-year restriction on any former employee's representations to United States concerning particular matter for which the employee had official responsibility.

3.One-year restriction on any former employee's representations, aid, or advice concerning ongoing trade or treaty negotiation.

4.One-year restriction on any former senior employee's representations to former agency concerning any matter, regardless of prior involvement

5.Two-year restriction on any former very senior employee's representations to former agency or certain officials concerning any matter, regardless of prior involvement.

6.One-year restriction on any former senior or very senior employee's representations on behalf of, or aid or advice to, foreign entity.

7.One-year restriction on any former private sector assignee under the Information Technology Exchange Program representing, aiding, counseling or assisting in representing in connection with any contract with former agency

http://www.usoge.gov/laws_regs/regulations/5cfr2641.aspx

There are, of course, prohibitions about conflicts of interest while serving as a government employee. Those won't quite work in an organization like ICANN, but for information, here is the link.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=e62a2086dab4071 9f9b70b63a58695eb&rgn=div5&view=text&node=5:3.0.10.10.9&idno=5#5:3.0.10. 10.9.4.50.2

...

<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=e62a2086dab407 19f9b70b63a58695eb&rgn=div5&view=text&node=5:3.0.10.10.9&idno=5#5:3.0.10 .10.9.4.50.2>

...

*J. Beckwith Burr | **WilmerHale*