Dear Fellow Council Members We will be discussing the Third Draft Proposal of the CCWG at our meeting shortly. Part of that discussion will involve the consideration of whether we, sitting as Council, may commit the ccTLD community (including non-ccNSO members) by endorsing wide-ranging changes to the structure of ICANN (including significant increased powers of the GAC over ICANN/IANA policy) as well as removal of the US Government's historic role. For those of you who have not followed the intense debates in the CCWG list, it will be important to understand the context we are in, and to have read the 300 pages or so, of the proposal carefully, since major changes to ICANN's structure are proposed therein. In the meantime, the below email from Prof Mueller ought to be taken seriously into account, particularly where he describes the 'major controversy' in the WG list. We must also have in mind the two different Minority Reports from CCWG members Robin Gross and Eberhard Lisse, and the Comments of CCWG members Paul Rosensweig and Brett Schaefer in which they comment that "the entire process by which the Draft Proposal was crThe consideration of new accountability measures has been characterized by a rush to resolution under what appear to be self-imposed deadlines based on perceived political conditions. As National Telecommunications and Information Administration (NTIA) has emphasized over and over again, the U.S. government “has not set any deadline for the transition.”[2] We strongly believe that it is better to get this process done right than it is to get it done on time.

Indeed, this third CCWG-Accountability report

eated calls into question the validity of the work product and its utility and representativeness". And finally, the Board's recent comments expressing significant concerns about the Draft Proposal and their re-confirmation that this needs to be done right, rather than rushed. I look forward to our discussion. Nigel Roberts

-------- Forwarded Message -------- Subject: Re: [CCWG-ACCT] Third Draft Proposal -- substantive Comments/Edits Date: Sun, 20 Dec 2015 10:10:14 -0500 From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> To: 'Rosemary E. Fei' <rfei@adlercolvin.com>, 'Mathieu Weill' <Mathieu.Weill@afnic.fr>, 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx>, 'Thomas Rickert' <thomas@rickert.net>, ccwg-accountability5@icann.org, accountability-cross-community@icann.org CC: 'Sidley ICANN CCWG' <sidleyicannccwg@sidley.com>, 'ACCT-Staff' <acct-staff@icann.org>, 'ICANN-Adler' <ICANN@adlercolvin.com>

This simply reconfirms my view that we are going too fast and that our pace has outstripped our capacity to keep up. In comments we filed earlier this week, Brett Schaeffer and I wrote the following:

To begin with, we believe that the entire process by which the Draft Proposal was created calls into question the validity of the work product and its utility and representativeness. The consideration of new accountability measures has been characterized by a rush to resolution under what appear to be self-imposed deadlines based on perceived political conditions. As National Telecommunications and Information Administration (NTIA) has emphasized over and over again, the U.S. government “has not set any deadline for the transition.”[2] We strongly believe that it is better to get this process done right than it is to get it done on time.

Indeed, this third CCWG-Accountability report to the community represents a complete revision of the proposed oversight mechanism of ICANN—yet this novel approach has not been fully vetted by the community and is now being subject to a truncated 21-day comment period, with the CCWG-Accountability co-chairs urging all commentators to preferentially submit their comments through their supporting organizations and advisory committees (SOs and ACs).

We reject that limitation. This novel proposal still has many open questions that require answers. Indeed, even as we write this comment a vibrant debate continues to occur on the CCWG-Accountability discussion list over exactly how, if at all, the proposed revised Mission Statement will effect existing contractual obligations. This week, it was suggested that this legal question be certified to outside lawyers for answers even though that fundamental question must be answered before the transition moves forward. The Board also submitted detailed comments this week (discussed further below) on the Draft Proposal that, if accepted by the community, would reflect a further fundamental transformation of the accountability proposals.[3]

We recognize that uncertainty about certain specifics in the Draft Proposal during the public comment period may aid in moving the process forward in order to meet a predetermined timeline. But that ambiguity is a critical failure that raises questions about the legitimacy of the CCWG-Accountability process. Moreover, the specific language of new and amended bylaws to implement outlined reforms of Internet Corporation for Assigned Names and Numbers (ICANN) remains at the conceptual stage and has yet to be drafted by CCWG-Accountability legal advisers. Asking the community to give its final support or opposition to an incomplete product is unacceptable.

According to the chairs of the CCWG-Accountability, “The CCWG-Accountability considers this Draft Proposal to be the Final proposal unless significant concerns are raised by Chartering Organizations. As the case may be, the CCWG-Accountability might then amend the proposal to address these and post a supplementary report for approval by the Chartering Organizations.”[4] Thus, even though there may be a number of significant objections and concerns raised by individuals, civil society, and businesses during this public comment, there are no plans for another draft to be opened for public comment.

We urge individual members of the ICANN community along with the SOs and ACs to demand that this document be treated as a provisional draft until all outstanding issues are settled, including specific language for bylaw revisions, and instruct the CCWG-Accountability to provide a final draft for public comment that incorporates comments on the Draft Proposal from the ICANN community, the chartering organizations, and the Board of Directors. In our judgment, these process flaws are so significant that the community should insist that final approval of the transition be deferred to ICANN 56. More to the point, if unremedied, these process flaws alone are sufficient for us to urge rejection of the transition, notwithstanding our substantive views on the merits of the transition proposal.

That, it seems to me, is ineluctably correct. Under the current flawed process the result cannot stand as a reflection of our good work.

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

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-------- Forwarded Message --------

From: Mueller, Milton L <milton@gatech.edu> To: Gregory, Holly <holly.gregory@sidley.com>, Accountability Cross Community (accountability-cross-community@icann.org) <accountability-cross-community@icann.org>, Mathieu Weill <mathieu.weill@afnic.fr>, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>, Thomas Rickert <thomas@rickert.net>, ACCT-Staff

Dear Holly and Rosemary:

Dear CCWG, Co-Chairs and ICANN Staff, It has been brought to our attention that our comments on the Third Draft Proposal have been misunderstood by some to indicate that we are critical of the Draft. Our intent was simply to help to assure that the Final Proposal is the highest quality reflection of the solid efforts of the CCWG to date by pointing out where we thought some clarification would be helpful to an unfamiliar reader and to the eventual bylaw drafting effort.

MM: I do not think anyone suggested that your comments were critical of the substance of the draft, or of the CCWG, or of anyone’s motives. You did, however, point out that there was a need for clarification where the draft may not have reflected the intent of the CCWG. You duly made some quite reasonable suggestions to fix the problems. These suggestions were not reflected in the draft. Those are simple facts.

Some of those changes were pretty important; e.g., changing “the interests of the corporation” to “the global public interest” determined via a bottom up MS process.

As you surely know, there is a major controversy on this list. Many of us believe the co-chairs are responding to the time pressure (about which they have legitimate concerns) by rushing things through to meet an arbitrary date target and not giving due consideration to public comments or even to the kind of changes you suggested. There’s no way around it: Rosemary’s message pretty much confirmed those concerns. This doesn’t say anything about motives and is not a personal criticism of anyone. It simply calls our attention to the costs of rushing. So, thanks for reiterating your proposed editorial changes and I hope they are incorporated this time.

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology