Dear All, I like to thank Stephen for starting this conversation. Moreover, I support Nick's three (3) procedure; however, I like to engage in a discussion regarding the extent of the background checks. Regards, This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. On Thu, May 30, 2019 at 10:19 AM Nick Wenban-Smith < Nick.Wenban-Smith@nominet.uk> wrote:

Yes, this would be a more orthodox procedure.

1. Call for nominations makes it clear that background checks clearance (ie the individual is fit and proper to be an officer of a Californian company) is a condition for nomination and the necessary consents are obtained up front. 2. Background checks are done (could be via third party referencing agency). 3. Candidate slate is published after the checks are complete.

In my experience of running the Nominet elections, the main debate was over the extent of the background checks. Should this be limited to matters that at law would disqualify them – criminal convictions, bankruptcy etc, or go further to make an independent factual check on the claimed employment history and other matters included on their CV and nominations papers? Or even whether the candidates have the skills and experience are being sought as a minimum from suitable candidates.

But the point is that ccNSO members should know at the point they cast their votes that the candidates are all appointable, and any issues are resolved prior to publication of the candidate list.

Best wishes

Nick

*From:* Ccnso-council <ccnso-council-bounces@icann.org> *On Behalf Of *Ajay DATA *Sent:* 30 May 2019 12:15 *To:* `stephen deerhake @ asnic` <sdeerhake@nic.as>; ccnso-council < ccnso-council@icann.org> *Subject:* Re: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline

Hello Stephen,

The *way forward* you suggested - "*I suggest a more suitable proposal needs to have prospective candidates submit nominations, with appropriate seconds, acceptances, and a signed release for the background check to an appropriate entity within ICANN.ORG <http://ICANN.ORG> without public disclosure of the candidacy at the time.*"

The above approach is already in practice by Nomcom and I have experienced the same. However I believe ICANN.ORG outsources the same. The entire thing was private and at-least I have not seen any information in public domain. Only after the candidate clears the background check, his name was announced. Before that no one knew in public domain that I applied for any position.

Thanks.

Ajay Data

------------------------------

*From:* "Stephen Deerhake @ ASNIC" <sdeerhake@nic.as> MailId : [91550901] *To:* ccnso-council <ccnso-council@icann.org> *Subject: *[ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline *Date:* 30 May 2019 02:37:21 PM

Greetings,

Please find attached (PDF; A4 format) a detailed explanation of my issues with the proposed Guideline for the Election of Board Seats 11 and 12, as we discussed on our recent tele-conference. I am happy to discuss this further of course.

Best Regards,

/Stephen

_______________________________________________ Ccnso-council mailing list Ccnso-council@icann.org https://mm.icann.org/mailman/listinfo/ccnso-council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Do not Remove: [HID]20190530143721295[-HID] _______________________________________________ Ccnso-council mailing list Ccnso-council@icann.org https://mm.icann.org/mailman/listinfo/ccnso-council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Dear Councillors, Thank you for this discussion. Before going into details, I would like to say that I fully support and believe that it is important that we develop and approve a reasonable and workable procedure. We will have to apply it in August when we start the next selection process. However, I cannot say that this discussion is very timely. As I already said on the call, the procedure generally looks like this: Step 0: discussions with the community and the Council Step 1: draft developed by the Guidelines Review Committee (GRC) Step 2: draft submitted and reviewed by the Council (if any comments, the draft goes back to the GRC) Step 3: draft submitted to the ccNSO members for comments Step 4: the document is finalised by the GRC Step 5: the finalised document goes to the Council for approval. With respect to the Guideline on selection of candidates for Board Seat 11 and 12 - the document or rather one part of the document that is questioned - we currently are at Step 5. To be fair, Stephen did submit a statement at the last day of Step 3 privately to me – no other ccTLD submitted their comments. I responded (I must admit that my response was unprofessionally emotional mainly due to the fact that Stephen is a member of the GRC and the Council and therefore could and, in my view, should have raised his concerns during steps 0-2). In Kobe, during the GRC meeting (Step 4), the document was on the agenda and I specifically asked Stephen if he had any comments. Stephen said that he had no further comments. We started with Step 0 in Abu Dhabi, October 2017 (!!!). Raising comments that might bring us back to Step 0 at this point (we were supposed to be Step 5, see above), is in my view disrespectful to the time and contributions of everyone who has been involved in developing the document. Having explained the process to date with respect to the changes of section 3.5, I’ll now get more to the point with respect to the concerns raised. List of items against which a candidate is vetted First, in particular for our new Councillors, let me share with you the list of checks, against which a candidate’s background is vetted. The list was shared with the Council in December 2017: Employment History Verification (via news articles, press releases, regulatory and securities documents and reputational sources) Academic Verification (via news articles, press releases, regulatory and securities documents and reputational sources) Verification of Professional Memberships/Licenses Local & International media search (first 50 articles; flag adverse articles for our attention) Internet search (first 50 articles; flag adverse articles for our attention) Financial Regulatory Registration & Status (confirm whether the selectee is registered with the Securities & Exchange Commission, or Financial Services authority and whether they have any adverse proceedings or are not disqualified) Verification of Other Business Interests (check against information in SOI and public records) Disqualified Directors search (establish whether the selectee is, or has been disqualified from being a company director) Insolvency/Bankruptcy check (check against relevant public records) Civil litigation (check against relevant public records) Fraud/Corruption/Terrorist and Compliance Searches (check against international risk databases) Criminal Records Search (check against relevant public records or Police records with consent of the selectee, in nations where criminal record searches are legal) Global Risk Compliance Database Search The background check is run by an ICANN contracted due diligence provider. Currently - James Mintz Group, which is also used by the NomCom and the other SO/ACs who conduct a background check. The candidates It is not entirely clear to me, why the candidates should be viewed as people who suffer from amnesia, concussion or a severe case of Alzheimer’s disease. Each candidate is pre-warned that a background check is taking place and has to agree to it. Details about the background check are available, and the candidate can end their candidacy (or even not accept the nomination) at any time during the process (even before the ICANN org or anybody else is informed). Look at the list! It is not about parking tickets or stealing apples from neighbour’s garden. If anything so serious shows up, it should not come as an “unpleasant surprise” to any normal individual. Of course, I completely agree that candidates should be guarded against unwarranted outcomes, but at the same time this should not be achieved at the cost of community who, by definition, is unfamiliar with the candidate’s background. Timing of publication of the name of the candidate(s) Related is the point of time when the name of the candidate is published. To date we publish the names of all nominations (Council, Board) as soon as they are received, together with name of the one who nominated the person. This is done to inform the community as early in the process as possible. This allows other ccTLD managers to second the nomination. Please note that even when a candidate’s name is not listed, at a minimum the nominator and seconder know the candidacy. If nobody knows who is nominated, 1) we are in a black box and 2) it is up to the potential candidate to find both the nominator and the seconder, because nobody can second an unknown nomination. Who and how should be informed about the results of the background check? First of all, based on my experience and knowledge of GDPR and related matters, the references to it in this case are irrelevant, even if a candidate would be from one of the countries, which are part of the EU. The question of public figure’s data has been discussed in EU already under the previous data protection regulation: “…whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005)”. The Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy provides a possible definition of “public figures”. It states that “Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.” I would say that potential ICANN Board members are public figures. We should not use GDPR as a shield to avoid our responsibility. In addition, the details of what is made public, are limited (see below on what is shared, for the reason to avoid processing potentially sensitive data) and definitely MUST NOT include details of the background check. Previous discussions If you check the Council minutes from Abu Dhabi, October 2017, you will see three arguments that were discussed and later found their way into the current version of the guideline: The Council discussed whether to do the screening of all candidates or only of the elected one. “Peter Vergote noted his understanding of the rationale of the background check, but wondered if there is a way to limit the risk by having the screening for the one candidate after the election, rather than the added risk of screening all candidates before the election.” Vs “Abibu Ntahigiye noted he believes the background check should be done on all candidates”. Peter was, indeed, talking about reputational risks to candidates. During the Council discussion no clear preference was identified but there was a slight inclination to vet all the candidates. “Debbie Monahan commented that any decision that may come from the screening be made by the ccNSO versus ICANN staff.” There were NO objections to this proposal. Young-Eum and others supported the idea to learn from other SO/ACs. We consulted with other SOACs, and the main conclusions were: Nominations are public, They screen selected candidates only, not all who had been nominated or stepped forward themselves (I think it’s to lower the costs), The results are received by the appointing organisation, The process takes 3-4 weeks, If a background check fails, the SO/AC in question does not nominate the candidate. The procedure that seemed most appropriate for the ccNSO, was the one adopted by ASO: *** ASO: Background check The elected candidate will be subject to an independent due diligence review conducted by an ICANN provided contractor referred to as due diligence provider. This review will require written consent of the elected candidate, obtained by the due diligence provider before the due diligence review begins. All candidates will provide this consent during the nomination phase. Depending on the region in which the elected candidate is located, this due diligence review process generally takes 3-4 weeks from when the due diligence provider is notified of the elected candidate. The process is meant to ensure that there is nothing in the candidate’s past or the information provided to the ASO AC during the nomination process which would raise any concerns about the candidate serving as a member of the ICANN Board. Voting ASO AC members (15 at max) will see the results of the due diligence. Although it has never happened before, they “would probably find it helpful to receive some explanation and context from ICANN if their contractor were to come back with a negative result, to understand what the issues were broadly”. *** This is what largely is included into our guideline with the only difference that all our candidates are vetted before the members vote. As our most recent vote showed, if you know where to look, you can see the results of the vote and make it public, for example, by publishing it on FB. A candidate may step down at any moment for any reason. If a successful candidate steps down, in the eyes of general public it might be a clear indication of a failed due diligence process. We also included the part that the Council may get more actively involved to protect our candidates. Proposed guideline section 3.5 I would urge everyone to read the actual guideline, specifically section 3.5. If the wording of the guideline is not clear, it should be clarified and corrected. But there is no need to claim the guideline says what it does not say. Nor is there a need to look for conspiracy theories. The current procedure is as follows: Candidates are nominated and seconded by a ccTLD manager. Candidates formally accept their nominations. All nominations and secondments are public, i.e. published. The names of all candidates are given to the independent Due Diligence provider. All candidates undergo background check. Results (red, amber, green flags – not “personal information” as Stephen claims) are given to the Chair, vice-chairs, other designated person who then inform the Council (again, red, amber, green flags) and the Council has to decide what to do (not if everything is green). On the Council call last week, I specifically asked Stephen to be precise in whatever he is proposing, referring to exact articles of the guideline he is proposing to change. Unfortunately, I cannot find that in the three-page document he sent to the mailing list. I believe that Bart and I have already spent (actually, as it now turns out, wasted) too much time on this guideline. I do not think Stephen should expect us to spend even more time trying to figure out what he means and what he wants to be changed. Therefore, I invite everyone who wishes to contribute to the discussion to propose their wording to the text of the guideline. If the changes are significant, I believe we must send it to the community for comments once more. Kind regards, ]{atrina From: Ccnso-council <ccnso-council-bounces@icann.org> on behalf of Nick Wenban-Smith <Nick.Wenban-Smith@nominet.uk> Date: Thursday, 30 May 2019 at 17:19 To: Ajay DATA <ajay@xgenplus.com>, "`stephen deerhake @ asnic`" <sdeerhake@nic.as>, ccnso-council <ccnso-council@icann.org> Subject: Re: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline Yes, this would be a more orthodox procedure. Call for nominations makes it clear that background checks clearance (ie the individual is fit and proper to be an officer of a Californian company) is a condition for nomination and the necessary consents are obtained up front. Background checks are done (could be via third party referencing agency). Candidate slate is published after the checks are complete. In my experience of running the Nominet elections, the main debate was over the extent of the background checks. Should this be limited to matters that at law would disqualify them – criminal convictions, bankruptcy etc, or go further to make an independent factual check on the claimed employment history and other matters included on their CV and nominations papers? Or even whether the candidates have the skills and experience are being sought as a minimum from suitable candidates. But the point is that ccNSO members should know at the point they cast their votes that the candidates are all appointable, and any issues are resolved prior to publication of the candidate list. Best wishes Nick From: Ccnso-council <ccnso-council-bounces@icann.org> On Behalf Of Ajay DATA Sent: 30 May 2019 12:15 To: `stephen deerhake @ asnic` <sdeerhake@nic.as>; ccnso-council <ccnso-council@icann.org> Subject: Re: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline Hello Stephen, The way forward you suggested - "I suggest a more suitable proposal needs to have prospective candidates submit nominations, with appropriate seconds, acceptances, and a signed release for the background check to an appropriate entity within ICANN.ORG without public disclosure of the candidacy at the time." The above approach is already in practice by Nomcom and I have experienced the same. However I believe ICANN.ORG outsources the same. The entire thing was private and at-least I have not seen any information in public domain. Only after the candidate clears the background check, his name was announced. Before that no one knew in public domain that I applied for any position. Thanks. Ajay Data From: "Stephen Deerhake @ ASNIC" <sdeerhake@nic.as> MailId : [91550901] To: ccnso-council <ccnso-council@icann.org> Subject: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline Date: 30 May 2019 02:37:21 PM Greetings, Please find attached (PDF; A4 format) a detailed explanation of my issues with the proposed Guideline for the Election of Board Seats 11 and 12, as we discussed on our recent tele-conference. I am happy to discuss this further of course. Best Regards, /Stephen _______________________________________________ Ccnso-council mailing list Ccnso-council@icann.org https://mm.icann.org/mailman/listinfo/ccnso-council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. Do not Remove: [HID]20190530143721295[-HID] _______________________________________________ Ccnso-council mailing list Ccnso-council@icann.org https://mm.icann.org/mailman/listinfo/ccnso-council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Alejandra +1 On Tue, Jun 4, 2019 at 9:49 AM Alejandra Reynoso <alejandra.reynoso@cctld.gt> wrote:

Dear All

After re-reading the guideline and taking into consideration the well founded explanation provided by Katrina, I don't see the need to re-write anything of the process in the guideline. It is very clear: - Everyone in the ccNSO community will have the guideline available. - Anyone who is nominated can decline a nomination. - Nominations need to be public to be able to second them. - Anyone who is nominated and then seconded can decline a nomination. - After accepting a nomination the candidates need to provide consent for the background check; or decline and step down from the process.

Everything is transparent and no surprises should be expected.

Best regards, Alejandra

--

[image: Photograph]

*Alejandra Reynoso*Investigación & Desarrollo | Dominios .gt *P:* +502 23688565 *E:* alejandra.reynoso@cctld.gt 18 Ave. 11 <https://maps.google.com/?q=18+Ave.+11&entry=gmail&source=g>-42 Zona 15, V.H. III. Guatemala, Guatemala www.gt

On Sun, Jun 2, 2019 at 3:05 PM Katrina Sataki <katrina@nic.lv> wrote:

...

Dear Councillors,

Thank you for this discussion. Before going into details, I would like to say that I fully support and believe that it is important that we develop and approve a reasonable and workable procedure. We will have to apply it in August when we start the next selection process. However, I cannot say that this discussion is very timely. As I already said on the call, the procedure generally looks like this:

Step 0: discussions with the community and the Council

Step 1: draft developed by the Guidelines Review Committee (GRC)

Step 2: draft submitted and reviewed by the Council (if any comments, the draft goes back to the GRC)

Step 3: draft submitted to the ccNSO members for comments

Step 4: the document is finalised by the GRC

Step 5: the finalised document goes to the Council for approval.

With respect to the Guideline on selection of candidates for Board Seat 11 and 12 - the document or rather one part of the document that is questioned - we currently are at Step 5. To be fair, Stephen did submit a statement at the last day of Step 3 privately to me – no other ccTLD submitted their comments. I responded (I must admit that my response was unprofessionally emotional mainly due to the fact that Stephen is a member of the GRC and the Council and therefore could and, in my view, should have raised his concerns during steps 0-2). In Kobe, during the GRC meeting (Step 4), the document was on the agenda and I specifically asked Stephen if he had any comments. Stephen said that he had no further comments.

We started with Step 0 in Abu Dhabi, October 2017 (!!!). Raising comments that might bring us back to Step 0 at this point (we were supposed to be Step 5, see above), is in my view disrespectful to the time and contributions of everyone who has been involved in developing the document.

Having explained the process to date with respect to the changes of section 3.5, I’ll now get more to the point with respect to the concerns raised.

1. *List of items against which a candidate is vetted*

First, in particular for our new Councillors, let me share with you the list of checks, against which a candidate’s background is vetted. The list was shared with the Council in December 2017:

- Employment History Verification (via news articles, press releases, regulatory and securities documents and reputational sources) - Academic Verification (via news articles, press releases, regulatory and securities documents and reputational sources) - Verification of Professional Memberships/Licenses - Local & International media search (first 50 articles; flag adverse articles for our attention) - Internet search (first 50 articles; flag adverse articles for our attention) - Financial Regulatory Registration & Status (confirm whether the selectee is registered with the Securities & Exchange Commission, or Financial Services authority and whether they have any adverse proceedings or are not disqualified) - Verification of Other Business Interests (check against information in SOI and public records) - Disqualified Directors search (establish whether the selectee is, or has been disqualified from being a company director) - Insolvency/Bankruptcy check (check against relevant public records) - Civil litigation (check against relevant public records) - Fraud/Corruption/Terrorist and Compliance Searches (check against international risk databases) - Criminal Records Search (check against relevant public records or Police records with consent of the selectee, in nations where criminal record searches are legal) - Global Risk Compliance Database Search

The background check is run by an ICANN contracted due diligence provider. Currently - James Mintz Group, which is also used by the NomCom and the other SO/ACs who conduct a background check.

1. *The candidates*

It is not entirely clear to me, why the candidates should be viewed as people who suffer from amnesia, concussion or a severe case of Alzheimer’s disease. Each candidate is pre-warned that a background check is taking place and has to agree to it. Details about the background check are available, and the candidate can end their candidacy (or even not accept the nomination) at any time during the process (even before the ICANN org or anybody else is informed).

Look at the list! It is not about parking tickets or stealing apples from neighbour’s garden. If anything so serious shows up, it should not come as an “unpleasant surprise” to any normal individual.

Of course, I completely agree that candidates should be guarded against unwarranted outcomes, but at the same time this should not be achieved at the cost of community who, by definition, is unfamiliar with the candidate’s background.

1. *Timing of publication of the name of the candidate(s)*

Related is the point of time when the name of the candidate is published. To date we publish the names of all nominations (Council, Board) as soon as they are received, together with name of the one who nominated the person. This is done to inform the community as early in the process as possible. This allows other ccTLD managers to second the nomination.

Please note that even when a candidate’s name is not listed, at a minimum the nominator and seconder know the candidacy.

If nobody knows who is nominated, 1) we are in a black box and 2) it is up to the potential candidate to find both the nominator and the seconder, because nobody can second an unknown nomination.

1. *Who and how should be informed about the results of the background check?*

First of all, based on my experience and knowledge of GDPR and related matters, the references to it in this case are irrelevant, even if a candidate would be from one of the countries, which are part of the EU. The question of public figure’s data has been discussed in EU already under the previous data protection regulation: “…whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005)”. The Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy provides a possible definition of “public figures”. It states that “Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.” I would say that *potential* ICANN Board members are public figures. We should not use GDPR as a shield to avoid our responsibility.

In addition, the details of what is made public, are limited (see below on what is shared, for the reason to avoid processing potentially sensitive data) and definitely MUST NOT include details of the background check.

1. *Previous discussions*

If you check the Council minutes from Abu Dhabi, October 2017, you will see three arguments that were discussed and later found their way into the current version of the guideline:

1. The Council discussed whether to do the screening of all candidates or only of the elected one. “Peter Vergote noted his understanding of the rationale of the background check, but wondered if there is a way to limit the risk by having the screening for the one candidate after the election, rather than the added risk of screening all candidates before the election.” Vs “Abibu Ntahigiye noted he believes the background check should be done on all candidates”.

Peter was, indeed, talking about reputational risks to candidates. During the Council discussion no clear preference was identified but there was a slight inclination to vet all the candidates.

1. “Debbie Monahan commented that any decision that may come from the screening be made by the ccNSO versus ICANN staff.” There were NO objections to this proposal.

1. Young-Eum and others supported the idea to learn from other SO/ACs.

We consulted with other SOACs, and the main conclusions were:

1. Nominations are public, 2. They screen selected candidates only, not all who had been nominated or stepped forward themselves (I think it’s to lower the costs), 3. The results are received by the appointing organisation, 4. The process takes 3-4 weeks, 5. If a background check fails, the SO/AC in question does not nominate the candidate.

The procedure that seemed most appropriate for the ccNSO, was the one adopted by ASO:

*** ASO: Background check

The elected candidate will be subject to an independent due diligence review conducted by an ICANN provided contractor referred to as due diligence provider. This review will require written consent of the elected candidate, obtained by the due diligence provider before the due diligence review begins. All candidates will provide this consent during the nomination phase. Depending on the region in which the elected candidate is located, this due diligence review process generally takes 3-4 weeks from when the due diligence provider is notified of the elected candidate. The process is meant to ensure that there is nothing in the candidate’s past or the information provided to the ASO AC during the nomination process which would raise any concerns about the candidate serving as a member of the ICANN Board.

Voting ASO AC members (15 at max) will see the results of the due diligence. Although it has never happened before, they “would probably find it helpful to receive some explanation and context from ICANN if their contractor were to come back with a negative result, to understand what the issues were broadly”. ***

This is what largely is included into our guideline with the only difference that all our candidates are vetted before the members vote. As our most recent vote showed, if you know where to look, you can see the results of the vote and make it public, for example, by publishing it on FB. A candidate may step down at any moment for any reason. If a successful candidate steps down, in the eyes of general public it might be a clear indication of a failed due diligence process.

We also included the part that the Council may get more actively involved to protect our candidates.

1. *Proposed guideline section 3.5*

I would urge everyone to read the actual guideline, specifically section 3.5. If the wording of the guideline is not clear, it should be clarified and corrected. But there is no need to claim the guideline says what it does not say. Nor is there a need to look for conspiracy theories.

The current procedure is as follows:

1. Candidates are nominated and seconded by a ccTLD manager. 2. Candidates formally accept their nominations. 3. All nominations and secondments are public, i.e. published. 4. The names of *all* candidates are given to the independent Due Diligence provider. All candidates undergo background check. 5. Results (red, amber, green flags – not “personal information” as Stephen claims) are given to the Chair, vice-chairs, other designated person who then inform the Council (again, red, amber, green flags) and the Council has to decide what to do (not if everything is green).

On the Council call last week, I specifically asked Stephen to be precise in whatever he is proposing, referring to exact articles of the guideline he is proposing to change. Unfortunately, I cannot find that in the three-page document he sent to the mailing list. I believe that Bart and I have already spent (actually, as it now turns out, wasted) too much time on this guideline. I do not think Stephen should expect us to spend even more time trying to figure out what he means and what he wants to be changed.

Therefore, I invite everyone who wishes to contribute to the discussion to propose their wording to the text of the guideline.

If the changes are significant, I believe we must send it to the community for comments once more.

Kind regards,

]{atrina

*From: *Ccnso-council <ccnso-council-bounces@icann.org> on behalf of Nick Wenban-Smith <Nick.Wenban-Smith@nominet.uk> *Date: *Thursday, 30 May 2019 at 17:19 *To: *Ajay DATA <ajay@xgenplus.com>, "`stephen deerhake @ asnic`" < sdeerhake@nic.as>, ccnso-council <ccnso-council@icann.org> *Subject: *Re: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline

Yes, this would be a more orthodox procedure.

1. Call for nominations makes it clear that background checks clearance (ie the individual is fit and proper to be an officer of a Californian company) is a condition for nomination and the necessary consents are obtained up front. 2. Background checks are done (could be via third party referencing agency). 3. Candidate slate is published after the checks are complete.

In my experience of running the Nominet elections, the main debate was over the extent of the background checks. Should this be limited to matters that at law would disqualify them – criminal convictions, bankruptcy etc, or go further to make an independent factual check on the claimed employment history and other matters included on their CV and nominations papers? Or even whether the candidates have the skills and experience are being sought as a minimum from suitable candidates.

But the point is that ccNSO members should know at the point they cast their votes that the candidates are all appointable, and any issues are resolved prior to publication of the candidate list.

Best wishes

Nick

*From:* Ccnso-council <ccnso-council-bounces@icann.org> *On Behalf Of *Ajay DATA *Sent:* 30 May 2019 12:15 *To:* `stephen deerhake @ asnic` <sdeerhake@nic.as>; ccnso-council < ccnso-council@icann.org> *Subject:* Re: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline

Hello Stephen,

The *way forward* you suggested - "*I suggest a more suitable proposal needs to have prospective candidates submit nominations, with appropriate seconds, acceptances, and a signed release for the background check to an appropriate entity within ICANN.ORG <http://ICANN.ORG> without public disclosure of the candidacy at the time.*"

The above approach is already in practice by Nomcom and I have experienced the same. However I believe ICANN.ORG outsources the same. The entire thing was private and at-least I have not seen any information in public domain. Only after the candidate clears the background check, his name was announced. Before that no one knew in public domain that I applied for any position.

Thanks.

Ajay Data

------------------------------

*From:* "Stephen Deerhake @ ASNIC" <sdeerhake@nic.as> MailId : [91550901] *To:* ccnso-council <ccnso-council@icann.org> *Subject: *[ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline *Date:* 30 May 2019 02:37:21 PM

Greetings,

Please find attached (PDF; A4 format) a detailed explanation of my issues with the proposed Guideline for the Election of Board Seats 11 and 12, as we discussed on our recent tele-conference. I am happy to discuss this further of course.

Best Regards,

/Stephen

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Agree with Alejandra as well. - kind regards, - Young-eum Young-eum Lee Dept. of Media Arts & Sciences <http://mas.knou.ac.kr/>, Korea National Open University <http://www.knou.ac.kr/> Dept. of Media Arts and Visual Contents <http://macgrad.knou.ac.kr/>, KNOU Grad School <http://grad.knou.ac.kr/> ICANN <http://www.icann.org/> ccNSO <http://ccnso.icann.org/> Council member <http://ccnso.icann.org/council-members.htm> On Wed, Jun 5, 2019 at 5:53 AM Demi Getschko <demi@nic.br> wrote:

+1 demi

On 04/06/19 15:51, Pablo Rodriguez wrote:

...

Alejandra +1

On Tue, Jun 4, 2019 at 9:49 AM Alejandra Reynoso <alejandra.reynoso@cctld.gt <mailto:alejandra.reynoso@cctld.gt>> wrote:

Dear All

After re-reading the guideline and taking into consideration the well founded explanation provided by Katrina, I don't see the need to re-write anything of the process in the guideline. It is very clear: - Everyone in the ccNSO community will have the guideline available. - Anyone who is nominated can decline a nomination. - Nominations need to be public to be able to second them. - Anyone who is nominated and then seconded can decline a nomination. - After accepting a nomination the candidates need to provide consent for the background check; or decline and step down from the process.

Everything is transparent and no surprises should be expected.

Best regards, Alejandra

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On Sun, Jun 2, 2019 at 3:05 PM Katrina Sataki <katrina@nic.lv <mailto:katrina@nic.lv>> wrote:

Dear Councillors,

Thank you for this discussion. Before going into details, I would like to say that I fully support and believe that it is important that we develop and approve a reasonable and workable procedure. We will have to apply it in August when we start the next selection process. However, I cannot say that this discussion is very timely. As I already said on the call, the procedure generally looks like this:

Step 0: discussions with the community and the Council

Step 1: draft developed by the Guidelines Review Committee (GRC)

Step 2: draft submitted and reviewed by the Council (if any comments, the draft goes back to the GRC)

Step 3: draft submitted to the ccNSO members for comments

Step 4: the document is finalised by the GRC

Step 5: the finalised document goes to the Council for approval.

With respect to the Guideline on selection of candidates for Board Seat 11 and 12 - the document or rather one part of the document that is questioned - we currently are at Step 5. To be fair, Stephen did submit a statement at the last day of Step 3 privately to me – no other ccTLD submitted their comments. I responded (I must admit that my response was unprofessionally emotional mainly due to the fact that Stephen is a member of the GRC and the Council and therefore could and, in my view, should have raised his concerns during steps 0-2). In Kobe, during the GRC meeting (Step 4), the document was on the agenda and I specifically asked Stephen if he had any comments. Stephen said that he had no further comments.

We started with Step 0 in Abu Dhabi, October 2017 (!!!). Raising comments that might bring us back to Step 0 at this point (we were supposed to be Step 5, see above), is in my view disrespectful to the time and contributions of everyone who has been involved in developing the document.

Having explained the process to date with respect to the changes of section 3.5, I’ll now get more to the point with respect to the concerns raised.

1. *List of items against which a candidate is vetted*

First, in particular for our new Councillors, let me share with you the list of checks, against which a candidate’s background is vetted. The list was shared with the Council in December 2017:

* Employment History Verification (via news articles, press releases, regulatory and securities documents and reputational sources) * Academic Verification (via news articles, press releases, regulatory and securities documents and reputational sources) * Verification of Professional Memberships/Licenses * Local & International media search (first 50 articles; flag adverse articles for our attention) * Internet search (first 50 articles; flag adverse articles for our attention) * Financial Regulatory Registration & Status (confirm whether the selectee is registered with the Securities & Exchange Commission, or Financial Services authority and whether they have any adverse proceedings or are not disqualified) * Verification of Other Business Interests (check against information in SOI and public records) * Disqualified Directors search (establish whether the selectee is, or has been disqualified from being a company director) * Insolvency/Bankruptcy check (check against relevant public records) * Civil litigation (check against relevant public records) * Fraud/Corruption/Terrorist and Compliance Searches (check against international risk databases) * Criminal Records Search (check against relevant public records or Police records with consent of the selectee, in nations where criminal record searches are legal) * Global Risk Compliance Database Search

The background check is run by an ICANN contracted due diligence provider. Currently - James Mintz Group, which is also used by the NomCom and the other SO/ACs who conduct a background check.

2. *The candidates*

It is not entirely clear to me, why the candidates should be viewed as people who suffer from amnesia, concussion or a severe case of Alzheimer’s disease. Each candidate is pre-warned that a background check is taking place and has to agree to it. Details about the background check are available, and the candidate can end their candidacy (or even not accept the nomination) at any time during the process (even before the ICANN org or anybody else is informed).

Look at the list! It is not about parking tickets or stealing apples from neighbour’s garden. If anything so serious shows up, it should not come as an “unpleasant surprise” to any normal individual.

Of course, I completely agree that candidates should be guarded against unwarranted outcomes, but at the same time this should not be achieved at the cost of community who, by definition, is unfamiliar with the candidate’s background.

3. *Timing of publication of the name of the candidate(s)*

Related is the point of time when the name of the candidate is published. To date we publish the names of all nominations (Council, Board) as soon as they are received, together with name of the one who nominated the person. This is done to inform the community as early in the process as possible. This allows other ccTLD managers to second the nomination.

Please note that even when a candidate’s name is not listed, at a minimum the nominator and seconder know the candidacy.

If nobody knows who is nominated, 1) we are in a black box and 2) it is up to the potential candidate to find both the nominator and the seconder, because nobody can second an unknown nomination.

4. *Who and how should be informed about the results of the background check?*

First of all, based on my experience and knowledge of GDPR and related matters, the references to it in this case are irrelevant, even if a candidate would be from one of the countries, which are part of the EU. The question of public figure’s data has been discussed in EU already under the previous data protection regulation: “…whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005)”. The Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy provides a possible definition of “public figures”. It states that “Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.” I would say that /potential/ ICANN Board members are public figures. We should not use GDPR as a shield to avoid our responsibility.

In addition, the details of what is made public, are limited (see below on what is shared, for the reason to avoid processing potentially sensitive data) and definitely MUST NOT include details of the background check.

5. *Previous discussions*

If you check the Council minutes from Abu Dhabi, October 2017, you will see three arguments that were discussed and later found their way into the current version of the guideline:

1. The Council discussed whether to do the screening of all candidates or only of the elected one. “Peter Vergote noted his understanding of the rationale of the background check, but wondered if there is a way to limit the risk by having the screening for the one candidate after the election, rather than the added risk of screening all candidates before the election.” Vs “Abibu Ntahigiye noted he believes the background check should be done on all candidates”.

Peter was, indeed, talking about reputational risks to candidates. During the Council discussion no clear preference was identified but there was a slight inclination to vet all the candidates.

2. “Debbie Monahan commented that any decision that may come from the screening be made by the ccNSO versus ICANN staff.” There were NO objections to this proposal.

3. Young-Eum and others supported the idea to learn from other SO/ACs.

We consulted with other SOACs, and the main conclusions were:

1. Nominations are public, 2. They screen selected candidates only, not all who had been nominated or stepped forward themselves (I think it’s to lower the costs), 3. The results are received by the appointing organisation, 4. The process takes 3-4 weeks, 5. If a background check fails, the SO/AC in question does not nominate the candidate.

The procedure that seemed most appropriate for the ccNSO, was the one adopted by ASO:

*** ASO: Background check

The elected candidate will be subject to an independent due diligence review conducted by an ICANN provided contractor referred to as due diligence provider. This review will require written consent of the elected candidate, obtained by the due diligence provider before the due diligence review begins. All candidates will provide this consent during the nomination phase. Depending on the region in which the elected candidate is located, this due diligence review process generally takes 3-4 weeks from when the due diligence provider is notified of the elected candidate. The process is meant to ensure that there is nothing in the candidate’s past or the information provided to the ASO AC during the nomination process which would raise any concerns about the candidate serving as a member of the ICANN Board.

Voting ASO AC members (15 at max) will see the results of the due diligence. Although it has never happened before, they “would probably find it helpful to receive some explanation and context from ICANN if their contractor were to come back with a negative result, to understand what the issues were broadly”. ***

This is what largely is included into our guideline with the only difference that all our candidates are vetted before the members vote. As our most recent vote showed, if you know where to look, you can see the results of the vote and make it public, for example, by publishing it on FB. A candidate may step down at any moment for any reason. If a successful candidate steps down, in the eyes of general public it might be a clear indication of a failed due diligence process.

We also included the part that the Council may get more actively involved to protect our candidates.

6. *Proposed guideline section 3.5*

I would urge everyone to read the actual guideline, specifically section 3.5. If the wording of the guideline is not clear, it should be clarified and corrected. But there is no need to claim the guideline says what it does not say. Nor is there a need to look for conspiracy theories.

The current procedure is as follows:

1. Candidates are nominated and seconded by a ccTLD manager. 2. Candidates formally accept their nominations. 3. All nominations and secondments are public, i.e. published. 4. The names of *all* candidates are given to the independent Due Diligence provider. All candidates undergo background check. 5. Results (red, amber, green flags – not “personal information” as Stephen claims) are given to the Chair, vice-chairs, other designated person who then inform the Council (again, red, amber, green flags) and the Council has to decide what to do (not if everything is green).

On the Council call last week, I specifically asked Stephen to be precise in whatever he is proposing, referring to exact articles of the guideline he is proposing to change. Unfortunately, I cannot find that in the three-page document he sent to the mailing list. I believe that Bart and I have already spent (actually, as it now turns out, wasted) too much time on this guideline. I do not think Stephen should expect us to spend even more time trying to figure out what he means and what he wants to be changed.

Therefore, I invite everyone who wishes to contribute to the discussion to propose their wording to the text of the guideline.

If the changes are significant, I believe we must send it to the community for comments once more.

Kind regards,

]{atrina

*From: *Ccnso-council <ccnso-council-bounces@icann.org <mailto:ccnso-council-bounces@icann.org>> on behalf of Nick Wenban-Smith <Nick.Wenban-Smith@nominet.uk <mailto:Nick.Wenban-Smith@nominet.uk>> *Date: *Thursday, 30 May 2019 at 17:19 *To: *Ajay DATA <ajay@xgenplus.com <mailto:ajay@xgenplus.com>>, "`stephen deerhake @ asnic`" <sdeerhake@nic.as <mailto:sdeerhake@nic.as>>, ccnso-council <ccnso-council@icann.org <mailto:ccnso-council@icann.org>> *Subject: *Re: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline

Yes, this would be a more orthodox procedure.

1. Call for nominations makes it clear that background checks clearance (ie the individual is fit and proper to be an officer of a Californian company) is a condition for nomination and the necessary consents are obtained up front. 2. Background checks are done (could be via third party referencing agency). 3. Candidate slate is published after the checks are complete.

In my experience of running the Nominet elections, the main debate was over the extent of the background checks. Should this be limited to matters that at law would disqualify them – criminal convictions, bankruptcy etc, or go further to make an independent factual check on the claimed employment history and other matters included on their CV and nominations papers? Or even whether the candidates have the skills and experience are being sought as a minimum from suitable candidates.

But the point is that ccNSO members should know at the point they cast their votes that the candidates are all appointable, and any issues are resolved prior to publication of the candidate list.

Best wishes

Nick

*From:* Ccnso-council <ccnso-council-bounces@icann.org <mailto:ccnso-council-bounces@icann.org>> *On Behalf Of *Ajay DATA *Sent:* 30 May 2019 12:15 *To:* `stephen deerhake @ asnic` <sdeerhake@nic.as <mailto:sdeerhake@nic.as>>; ccnso-council <ccnso-council@icann.org <mailto:ccnso-council@icann.org>> *Subject:* Re: [ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline

Hello Stephen,

The *way forward* you suggested - "/I suggest a more suitable proposal needs to have prospective candidates submit nominations, with appropriate seconds, acceptances, and a signed release for the background check to an appropriate entity within ICANN.ORG <http://ICANN.ORG> without public disclosure of the candidacy at the time./"

The above approach is already in practice by Nomcom and I have experienced the same. However I believe ICANN.ORG <http://ICANN.ORG> outsources the same. The entire thing was private and at-least I have not seen any information in public domain. Only after the candidate clears the background check, his name was announced. Before that no one knew in public domain that I applied for any position.

Thanks.

Ajay Data

------------------------------------------------------------------------

...

*From:* "Stephen Deerhake @ ASNIC" <sdeerhake@nic.as <mailto:sdeerhake@nic.as>> MailId : [91550901] *To:* ccnso-council <ccnso-council@icann.org <mailto:ccnso-council@icann.org>> *Subject: *[ccnso-council] Action item regarding my issue with the proposed Board Seat 11 and 12 Guideline *Date:* 30 May 2019 02:37:21 PM

Greetings,

Please find attached (PDF; A4 format) a detailed explanation of my issues with the proposed Guideline for the Election of Board Seats 11 and 12, as we discussed on our recent tele-conference. I am happy to discuss this further of course.

Best Regards,

/Stephen

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