Hi all - I posted a new version of the document on the wiki page in clean and redline form. The proposed changes include: 1. To address Malcolm Hutty¹s edit regarding contractual sources of accountability, I made a ³contract² heading and also listed Registry and Registrar Contracts under there. 2. To address David¹s inclusion of SSAC recommendations as a source of accountability, I incorporated a heading under Bylaws that accounted for Advisory Committee inputs. (Note that action is pending on ATRT2 recommendations regarding ICANN¹s obligations on considerate of advice from ACs other than the GAC). Because identifying accountability in terms of advice did not then seem complete without reference to the policy recommendations upon which that advice is often given, I referenced the policy development/Board consideration of policy recommendations for each of the SOs. 3. Inserted summary listings of all ATRT recommendations (1 and 2) In terms of background documentation, I modified the page to make a clear delineation between the background info and the drafting work ongoing. In line with David¹s concern and Bruce¹s suggestion, I excerpted the presentation I previously circulated, and posted only the part that deals with the inventory effort, so as not to bring all the questions in at this stage. I also included an excerpt to the inventory effort undertaken by ICANN in advance of the first postings on Enhancing ICANN Accountability. Please let me know if you have any questions. Sam On 12/13/14, 4:01 PM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Samantha,

Is it possible to split this presentation from London into its two components?

The first few slides list some of the accountability mechanisms available within the ICANN structure. The ATRT2 review identified some improvements to make to these mechanisms.

The slides from 11-28 are a general presentation about accountability from Professor Jan Aart Scholte, School of Global Studies, .University of Gothenburg.

He lists 9 framing questions to consider when looking at accountability mechanisms:

(1) What is accountability?

- processes whereby an actor answers to other actors for the impacts on them of its actions and omissions

(2) with what components?

- transparency

- consultation

- monitoring and evaluation

- correction and redress

(3) for what purpose?

- financial review; 'the accounts'

- performance measurement

- democratic participation/control

- moral probity; ecological integrity; peace; etc.

(4) Accountability by whom?

- challenge of pinning down and specifying impact in the context of complex polycentric governance

(5) for what?

- actual formal mandate

- desired mandate (content? spam? digital access?)

(6) to whom?

- 'the public' of significantly affected people (but metaphysical, ecological?)

- 'the public' not unitary, as different people are differently affected

- constituencies (divisions within and overlaps between)

(7) for whom?

- myth of a universal 'global community' with same interests and equal power

- skewed accountability on lines of age, caste, class, (dis)ability, faith, gender, geography, language, nationality, race, sexuality

(8) via what channels?

- hegemonic veto

- intergovernmental multilateralism

- (global) political parties and parliaments

- multi-stakeholder arrangements

- civil society deliberation and mobilization

- judiciary (court, inspection panel, evaluation exercises, ombudsman)

- mass media

(9) how accountably?

- 'When you point a finger, you need to do it with a clean hand'

- transparency, consultation, monitoring and redress of those who (claim to) speak for affected publics

Regards, Bruce Tonkin

Colleagues, Listening to the discussion, I propose think that one of the new refined tasks that we could undertake would be, for each mechanism that we’ve identified on the inventory, first try to answer the questions of: 1) To whom does this mechanism seek to make ICANN accountable; and 2) For what This could be a starting point for parsing through the next wave of issues that we are agreeing to take on. Best, Sam On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote:

Thanks, Samantha. On the subject of contractual sources of accountability, it should be noted that the proposed withdrawal of NTIA from IANA functions will remove NTIA as a source of accountability enforcement. I propose that the Sub Group look for other contractual sources and at the same time explore the possibility of broadening the scope of accountability enforceable by contract. For example, the registries and registrars could enter into contracts with ICANN covering the IANA functions in addition to the following: 1. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that are not supported by a demonstrated consensus among affected parties. 2. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that do not relate to issues the uniform resolution of which is necessary to assure sound operation of the domain name system. 3. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that relate to online content or to online behavior that does not threaten the sound operation of the domain name system? 4. ICANN could agree that any claim that it has not complied with the previous three obligations may be brought by any adversely affected party before an independent review panel that can issue decisions that are binding on ICANN.

David

David W. Maher Senior Vice President ­ Law & Policy Public Interest Registry 312 375 4849

On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:

...

Hi all -

I posted a new version of the document on the wiki page in clean and redline form. The proposed changes include: 1. To address Malcolm Hutty¹s edit regarding contractual sources of accountability, I made a ³contract² heading and also listed Registry and Registrar Contracts under there. 2. To address David¹s inclusion of SSAC recommendations as a source of accountability, I incorporated a heading under Bylaws that accounted for Advisory Committee inputs. (Note that action is pending on ATRT2 recommendations regarding ICANN¹s obligations on considerate of advice from ACs other than the GAC). Because identifying accountability in terms of advice did not then seem complete without reference to the policy recommendations upon which that advice is often given, I referenced the policy development/Board consideration of policy recommendations for each of the SOs. 3. Inserted summary listings of all ATRT recommendations (1 and 2)

In terms of background documentation, I modified the page to make a clear delineation between the background info and the drafting work ongoing. In line with David¹s concern and Bruce¹s suggestion, I excerpted the presentation I previously circulated, and posted only the part that deals with the inventory effort, so as not to bring all the questions in at this stage.

I also included an excerpt to the inventory effort undertaken by ICANN in advance of the first postings on Enhancing ICANN Accountability.

Please let me know if you have any questions.

Sam

On 12/13/14, 4:01 PM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

...

Hello Samantha,

Is it possible to split this presentation from London into its two components?

The first few slides list some of the accountability mechanisms available within the ICANN structure. The ATRT2 review identified some improvements to make to these mechanisms.

The slides from 11-28 are a general presentation about accountability from Professor Jan Aart Scholte, School of Global Studies, .University of Gothenburg.

He lists 9 framing questions to consider when looking at accountability mechanisms:

(1) What is accountability?

- processes whereby an actor answers to other actors for the impacts on them of its actions and omissions

(2) with what components?

- transparency

- consultation

- monitoring and evaluation

- correction and redress

(3) for what purpose?

- financial review; 'the accounts'

- performance measurement

- democratic participation/control

- moral probity; ecological integrity; peace; etc.

(4) Accountability by whom?

- challenge of pinning down and specifying impact in the context of complex polycentric governance

(5) for what?

- actual formal mandate

- desired mandate (content? spam? digital access?)

(6) to whom?

- 'the public' of significantly affected people (but metaphysical, ecological?)

- 'the public' not unitary, as different people are differently affected

- constituencies (divisions within and overlaps between)

(7) for whom?

- myth of a universal 'global community' with same interests and equal power

- skewed accountability on lines of age, caste, class, (dis)ability, faith, gender, geography, language, nationality, race, sexuality

(8) via what channels?

- hegemonic veto

- intergovernmental multilateralism

- (global) political parties and parliaments

- multi-stakeholder arrangements

- civil society deliberation and mobilization

- judiciary (court, inspection panel, evaluation exercises, ombudsman)

- mass media

(9) how accountably?

- 'When you point a finger, you need to do it with a clean hand'

- transparency, consultation, monitoring and redress of those who (claim to) speak for affected publics

Regards, Bruce Tonkin

I agree David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

Samantha, Colleagues,

That is indeed what I understand from the discussion. You could also add a 3) is it review, redress or check & balance (see Netmundial definition of Accountability).

Best Mathieu

Le 16/12/2014 13:04, Samantha Eisner a écrit :

...

Colleagues,

Listening to the discussion, I propose think that one of the new refined tasks that we could undertake would be, for each mechanism that we’ve identified on the inventory, first try to answer the questions of:

1) To whom does this mechanism seek to make ICANN accountable; and 2) For what

This could be a starting point for parsing through the next wave of issues that we are agreeing to take on.

Best,

Sam

On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote:

...

Thanks, Samantha. On the subject of contractual sources of accountability, it should be noted that the proposed withdrawal of NTIA from IANA functions will remove NTIA as a source of accountability enforcement. I propose that the Sub Group look for other contractual sources and at the same time explore the possibility of broadening the scope of accountability enforceable by contract. For example, the registries and registrars could enter into contracts with ICANN covering the IANA functions in addition to the following: 1. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that are not supported by a demonstrated consensus among affected parties. 2. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that do not relate to issues the uniform resolution of which is necessary to assure sound operation of the domain name system. 3. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that relate to online content or to online behavior that does not threaten the sound operation of the domain name system? 4. ICANN could agree that any claim that it has not complied with the previous three obligations may be brought by any adversely affected party before an independent review panel that can issue decisions that are binding on ICANN.

David

David W. Maher Senior Vice President ­ Law & Policy Public Interest Registry 312 375 4849

On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:

...

Hi all -

I posted a new version of the document on the wiki page in clean and redline form. The proposed changes include: 1. To address Malcolm Hutty¹s edit regarding contractual sources of accountability, I made a ³contract² heading and also listed Registry and Registrar Contracts under there. 2. To address David¹s inclusion of SSAC recommendations as a source of accountability, I incorporated a heading under Bylaws that accounted for Advisory Committee inputs. (Note that action is pending on ATRT2 recommendations regarding ICANN¹s obligations on considerate of advice from ACs other than the GAC). Because identifying accountability in terms of advice did not then seem complete without reference to the policy recommendations upon which that advice is often given, I referenced the policy development/Board consideration of policy recommendations for each of the SOs. 3. Inserted summary listings of all ATRT recommendations (1 and 2)

In terms of background documentation, I modified the page to make a clear delineation between the background info and the drafting work ongoing. In line with David¹s concern and Bruce¹s suggestion, I excerpted the presentation I previously circulated, and posted only the part that deals with the inventory effort, so as not to bring all the questions in at this stage.

I also included an excerpt to the inventory effort undertaken by ICANN in advance of the first postings on Enhancing ICANN Accountability.

Please let me know if you have any questions.

Sam

On 12/13/14, 4:01 PM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

...

Hello Samantha,

Is it possible to split this presentation from London into its two components?

The first few slides list some of the accountability mechanisms available within the ICANN structure. The ATRT2 review identified some improvements to make to these mechanisms.

The slides from 11-28 are a general presentation about accountability from Professor Jan Aart Scholte, School of Global Studies, .University of Gothenburg.

He lists 9 framing questions to consider when looking at accountability mechanisms:

(1) What is accountability?

- processes whereby an actor answers to other actors for the impacts on them of its actions and omissions

(2) with what components?

- transparency

- consultation

- monitoring and evaluation

- correction and redress

(3) for what purpose?

- financial review; 'the accounts'

- performance measurement

- democratic participation/control

- moral probity; ecological integrity; peace; etc.

(4) Accountability by whom?

- challenge of pinning down and specifying impact in the context of complex polycentric governance

(5) for what?

- actual formal mandate

- desired mandate (content? spam? digital access?)

(6) to whom?

- 'the public' of significantly affected people (but metaphysical, ecological?)

- 'the public' not unitary, as different people are differently affected

- constituencies (divisions within and overlaps between)

(7) for whom?

- myth of a universal 'global community' with same interests and equal power

- skewed accountability on lines of age, caste, class, (dis)ability, faith, gender, geography, language, nationality, race, sexuality

(8) via what channels?

- hegemonic veto

- intergovernmental multilateralism

- (global) political parties and parliaments

- multi-stakeholder arrangements

- civil society deliberation and mobilization

- judiciary (court, inspection panel, evaluation exercises, ombudsman)

- mass media

(9) how accountably?

- 'When you point a finger, you need to do it with a clean hand'

- transparency, consultation, monitoring and redress of those who (claim to) speak for affected publics

Regards, Bruce Tonkin

---

Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1

-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

_______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1

Thanks Samantha, Just adding a link to the resource for everyone to access easily : DOC version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... PDF version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... Mathieu Le 23/12/2014 02:57, Samantha Eisner a écrit :

Hi -

I’ve done a first attempt (which is by no means comprehensive) of our assigned task and uploaded to the wiki. I think we’d benefit from seeing what other detail we’d like in there, so I put this out to start the conversation.

Best,

Sam

On 12/16/14, 1:43 PM, "David W. Maher" <dmaher@pir.org> wrote:

...

I agree David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849

On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

...

Samantha, Colleagues,

That is indeed what I understand from the discussion. You could also add a 3) is it review, redress or check & balance (see Netmundial definition of Accountability).

Best Mathieu

Le 16/12/2014 13:04, Samantha Eisner a écrit :

...

Colleagues,

Listening to the discussion, I propose think that one of the new refined tasks that we could undertake would be, for each mechanism that we’ve identified on the inventory, first try to answer the questions of:

1) To whom does this mechanism seek to make ICANN accountable; and 2) For what

This could be a starting point for parsing through the next wave of issues that we are agreeing to take on.

Best,

Sam

On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote:

...

Thanks, Samantha. On the subject of contractual sources of accountability, it should be noted that the proposed withdrawal of NTIA from IANA functions will remove NTIA as a source of accountability enforcement. I propose that the Sub Group look for other contractual sources and at the same time explore the possibility of broadening the scope of accountability enforceable by contract. For example, the registries and registrars could enter into contracts with ICANN covering the IANA functions in addition to the following: 1. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that are not supported by a demonstrated consensus among affected parties. 2. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that do not relate to issues the uniform resolution of which is necessary to assure sound operation of the domain name system. 3. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that relate to online content or to online behavior that does not threaten the sound operation of the domain name system? 4. ICANN could agree that any claim that it has not complied with the previous three obligations may be brought by any adversely affected party before an independent review panel that can issue decisions that are binding on ICANN.

David

David W. Maher Senior Vice President ­ Law & Policy Public Interest Registry 312 375 4849

On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:

...

Hi all -

I posted a new version of the document on the wiki page in clean and redline form. The proposed changes include: 1. To address Malcolm Hutty¹s edit regarding contractual sources of accountability, I made a ³contract² heading and also listed Registry and Registrar Contracts under there. 2. To address David¹s inclusion of SSAC recommendations as a source of accountability, I incorporated a heading under Bylaws that accounted for Advisory Committee inputs. (Note that action is pending on ATRT2 recommendations regarding ICANN¹s obligations on considerate of advice from ACs other than the GAC). Because identifying accountability in terms of advice did not then seem complete without reference to the policy recommendations upon which that advice is often given, I referenced the policy development/Board consideration of policy recommendations for each of the SOs. 3. Inserted summary listings of all ATRT recommendations (1 and 2)

In terms of background documentation, I modified the page to make a clear delineation between the background info and the drafting work ongoing. In line with David¹s concern and Bruce¹s suggestion, I excerpted the presentation I previously circulated, and posted only the part that deals with the inventory effort, so as not to bring all the questions in at this stage.

I also included an excerpt to the inventory effort undertaken by ICANN in advance of the first postings on Enhancing ICANN Accountability.

Please let me know if you have any questions.

Sam

On 12/13/14, 4:01 PM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

> Hello Samantha, > > Is it possible to split this presentation from London into its two > components? > > The first few slides list some of the accountability mechanisms > available > within the ICANN structure. The ATRT2 review identified some > improvements to make to these mechanisms. > > The slides from 11-28 are a general presentation about > accountability >from Professor Jan Aart Scholte, School of Global Studies, .University > of > Gothenburg. > > He lists 9 framing questions to consider when looking at > accountability > mechanisms: > > (1) What is accountability? > > - processes whereby an actor answers to other actors for the > impacts on > them of its actions and omissions > > (2) with what components? > > - transparency > > - consultation > > - monitoring and evaluation > > - correction and redress > > > (3) for what purpose? > > - financial review; 'the accounts' > > - performance measurement > > - democratic participation/control > > - moral probity; ecological integrity; peace; etc. > > > (4) Accountability by whom? > > - challenge of pinning down and specifying impact in the context of > complex polycentric governance > > > (5) for what? > > - actual formal mandate > > - desired mandate (content? spam? digital access?) > > > (6) to whom? > > - 'the public' of significantly affected people (but metaphysical, > ecological?) > > - 'the public' not unitary, as different people are differently > affected > > - constituencies (divisions within and overlaps between) > > > (7) for whom? > > - myth of a universal 'global community' with same interests and > equal > power > > - skewed accountability on lines of age, caste, class, > (dis)ability, > faith, gender, geography, language, nationality, race, sexuality > > > (8) via what channels? > > - hegemonic veto > > - intergovernmental multilateralism > > - (global) political parties and parliaments > > - multi-stakeholder arrangements > > - civil society deliberation and mobilization > > - judiciary (court, inspection panel, evaluation exercises, > ombudsman) > > - mass media > > > (9) how accountably? > > - 'When you point a finger, you need to do it with a clean hand' > > - transparency, consultation, monitoring and redress of those who > (claim to) speak for affected publics > > Regards, > Bruce Tonkin

---

Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1 --

---

Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

_______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1

---

Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1

-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

Dear Samantha Tks for information. I could not find your doc. on the wiki WG1 May you pls either direct me to the area that I could find that last doc. or send me the doc. Regards Kavouss 2014-12-23 15:19 GMT+01:00 Roelof Meijer <Roelof.Meijer@sidn.nl>:

Dear all,

As discussed, I suggest the table to be expanded with at least one column „final say” or „stops the buck” or something, that states where the final decision lies. I bet that in most cases we will find that this is the ICANN Board. Which is not a flaw in the system, but -as I am sure you are all aware- just the logic result of the present (common) governance structure of the corporation, whereby board members have a fiduciary duty and ultimately (only) serve the best interests of the corporation.

As long as the best interests of ICANN the corporation and the „public interest” are aligned (or are so in the opinion of the board) all is probably well. If they are not, if the are not in the opinion of the board, or if the board misinterprets the public interests and/or the corporations interests, problems arise.

It surely has not always been the case, but in my opinion the board and CEO have done pretty well over the last years in finding the right balance (or alignment) between corporate and public/community interests. No guarantee that that will remain the case indefinitely however, especially if there’s no longer the NTIA/USG to subtly threaten with corrective measures...

As far as I understand it, we mean by „enhanced accountability” that ultimately, when the *stuff* hits the fan, the public interest will be the decisive interest and NOT the corporation's.

I do not think that can be demanded from the board. I agree that we should consider multiple solutions to this challenge. One of which might be assigning the task and the authority required for it, to an external or semi-external structure, through the bylaws of that corporation. In such a situation, the members of that structure should obviously not be appointed by (the board of) the corporation. But by those representing the public interest.

Cheers,

Roelof Meijer

SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 roelof.meijer@sidn.nl | www.sidn.nl <http://www.sidn.nl/>

On 23-12-14 06:18, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

...

Thanks Samantha,

Just adding a link to the resource for everyone to access easily : DOC version :

https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun

...

tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

PDF version :

https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun

...

tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

Mathieu

Le 23/12/2014 02:57, Samantha Eisner a écrit :

...

Hi -

I’ve done a first attempt (which is by no means comprehensive) of our assigned task and uploaded to the wiki. I think we’d benefit from seeing what other detail we’d like in there, so I put this out to start the conversation.

Best,

Sam

On 12/16/14, 1:43 PM, "David W. Maher" <dmaher@pir.org> wrote:

...

I agree David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849

On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

...

Samantha, Colleagues,

That is indeed what I understand from the discussion. You could also add a 3) is it review, redress or check & balance (see Netmundial definition of Accountability).

Best Mathieu

Le 16/12/2014 13:04, Samantha Eisner a écrit :

...

Colleagues,

Listening to the discussion, I propose think that one of the new refined tasks that we could undertake would be, for each mechanism that we’ve identified on the inventory, first try to answer the questions of:

1) To whom does this mechanism seek to make ICANN accountable; and 2) For what

This could be a starting point for parsing through the next wave of issues that we are agreeing to take on.

Best,

Sam

On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote:

> Thanks, Samantha. > On the subject of contractual sources of accountability, it should >be > noted that the proposed withdrawal of NTIA from IANA functions will > remove > NTIA as a source of accountability enforcement. > I propose that the Sub Group look for other contractual sources and >at > the > same time explore the possibility of broadening the scope of > accountability enforceable by contract. > For example, the registries and registrars could enter into >contracts > with > ICANN covering the IANA functions in addition to the following: > 1. ICANN could agree by binding contract not to impose rules on >third > parties (by means of policies, accreditation standards, or required > contract terms) that are not supported by a demonstrated consensus > among > affected parties. > 2. ICANN could agree by binding contract not to impose rules on >third > parties (by means of policies, accreditation standards, or required > contract terms) that do not relate to issues the uniform resolution >of > which is necessary to assure sound operation of the domain name > system. > 3. ICANN could agree by binding contract not to impose rules on >third > parties (by means of policies, accreditation standards, or required > contract terms) that relate to online content or to online behavior > that > does not threaten the sound operation of the domain name system? > 4. ICANN could agree that any claim that it has not complied with >the > previous three obligations may be brought by any adversely affected > party > before an independent review panel that can issue decisions that are > binding on ICANN. > > David > > > David W. Maher > Senior Vice President ­ Law & Policy > Public Interest Registry > 312 375 4849 > > > > > > > On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> > wrote: > >> Hi all - >> >> I posted a new version of the document on the wiki page in clean >>and >> redline form. The proposed changes include: >> 1. To address Malcolm Hutty¹s edit regarding contractual sources of >> accountability, I made a ³contract² heading and also listed >>Registry >> and >> Registrar Contracts under there. >> 2. To address David¹s inclusion of SSAC recommendations as a source >> of >> accountability, I incorporated a heading under Bylaws that >>accounted >> for >> Advisory Committee inputs. (Note that action is pending on ATRT2 >> recommendations regarding ICANN¹s obligations on considerate of >> advice > >from ACs other than the GAC). Because identifying accountability >in >> terms >> of advice did not then seem complete without reference to the >>policy >> recommendations upon which that advice is often given, I referenced >> the >> policy development/Board consideration of policy recommendations >>for >> each >> of the SOs. >> 3. Inserted summary listings of all ATRT recommendations (1 and 2) >> >> In terms of background documentation, I modified the page to make a >> clear >> delineation between the background info and the drafting work >> ongoing. >> In >> line with David¹s concern and Bruce¹s suggestion, I excerpted the >> presentation I previously circulated, and posted only the part that >> deals >> with the inventory effort, so as not to bring all the questions in >>at >> this >> stage. >> >> I also included an excerpt to the inventory effort undertaken by >> ICANN in >> advance of the first postings on Enhancing ICANN Accountability. >> >> Please let me know if you have any questions. >> >> Sam >> >> >> >> On 12/13/14, 4:01 PM, "Bruce Tonkin" >> <Bruce.Tonkin@melbourneit.com.au> >> wrote: >> >>> Hello Samantha, >>> >>> Is it possible to split this presentation from London into its two >>> components? >>> >>> The first few slides list some of the accountability mechanisms >>> available >>> within the ICANN structure. The ATRT2 review identified some >>> improvements to make to these mechanisms. >>> >>> The slides from 11-28 are a general presentation about >>> accountability >> >from Professor Jan Aart Scholte, School of Global Studies, >> .University >>> of >>> Gothenburg. >>> >>> He lists 9 framing questions to consider when looking at >>> accountability >>> mechanisms: >>> >>> (1) What is accountability? >>> >>> - processes whereby an actor answers to other actors for the >>> impacts on >>> them of its actions and omissions >>> >>> (2) with what components? >>> >>> - transparency >>> >>> - consultation >>> >>> - monitoring and evaluation >>> >>> - correction and redress >>> >>> >>> (3) for what purpose? >>> >>> - financial review; 'the accounts' >>> >>> - performance measurement >>> >>> - democratic participation/control >>> >>> - moral probity; ecological integrity; peace; etc. >>> >>> >>> (4) Accountability by whom? >>> >>> - challenge of pinning down and specifying impact in the context >>>of >>> complex polycentric governance >>> >>> >>> (5) for what? >>> >>> - actual formal mandate >>> >>> - desired mandate (content? spam? digital access?) >>> >>> >>> (6) to whom? >>> >>> - 'the public' of significantly affected people (but >>>metaphysical, >>> ecological?) >>> >>> - 'the public' not unitary, as different people are differently >>> affected >>> >>> - constituencies (divisions within and overlaps between) >>> >>> >>> (7) for whom? >>> >>> - myth of a universal 'global community' with same interests and >>> equal >>> power >>> >>> - skewed accountability on lines of age, caste, class, >>> (dis)ability, >>> faith, gender, geography, language, nationality, race, sexuality >>> >>> >>> (8) via what channels? >>> >>> - hegemonic veto >>> >>> - intergovernmental multilateralism >>> >>> - (global) political parties and parliaments >>> >>> - multi-stakeholder arrangements >>> >>> - civil society deliberation and mobilization >>> >>> - judiciary (court, inspection panel, evaluation exercises, >>> ombudsman) >>> >>> - mass media >>> >>> >>> (9) how accountably? >>> >>> - 'When you point a finger, you need to do it with a clean hand' >>> >>> - transparency, consultation, monitoring and redress of those >>>who >>> (claim to) speak for affected publics >>> >>> Regards, >>> Bruce Tonkin _______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1 --

---

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---

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-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

_______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1

_______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1

Dear Colleagues, I have reviewed the document, and confirm that it is certainly going to be a cornerstone of our work. With my CEO hat on, I realized we were not explicitly mentioning any accountability mechanisms regarding the achievement of strategic goals, or delivering certain key projects on time, or within budget. Is it because we just forgot them ? If that is the case, I think it would be valuable to add this kind of accountability mechanism in our overview of the current situation at Icann. I have a feeling that we have naturally been inclined to overlook this kind of "management" accountability mechanisms. To give more examples, within Afnic, the CEO is accountable to the Board to achieve certain goals of the strategic plan. And the Board can dismiss the CEO in case performance is not appropriate. The CEO can delegate some of these goals to staff and has the same kind of power (although under more constraints) regarding staff. And of course, Board members come up for re-election on a regular basis. So if the Board is felt to be not performing correctly, the general assembly can change Board members. Best Mathieu Le 24/12/2014 00:09, Samantha Eisner a écrit :

Dear Kavouss,

The document is on the WG1 draft page at: https://community.icann.org/display/acctcrosscomm/Work+Area+1+-+Draft+Docume...

The link to the document in WORD format: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... and PDF: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta...

Best,

Samantha

From: Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> Date: Tuesday, December 23, 2014 at 2:51 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> Cc: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>>, "David W. Maher" <dmaher@pir.org <mailto:dmaher@pir.org>>, "ccwg-accountability1@icann.org <mailto:ccwg-accountability1@icann.org>" <ccwg-accountability1@icann.org <mailto:ccwg-accountability1@icann.org>> Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft

Dear Samantha Tks for information. I could not find your doc. on the wiki WG1 May you pls either direct me to the area that I could find that last doc. or send me the doc. Regards Kavouss

2014-12-23 15:19 GMT+01:00 Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>>:

Dear all,

As discussed, I suggest the table to be expanded with at least one column „final say” or „stops the buck” or something, that states where the final decision lies. I bet that in most cases we will find that this is the ICANN Board. Which is not a flaw in the system, but -as I am sure you are all aware- just the logic result of the present (common) governance structure of the corporation, whereby board members have a fiduciary duty and ultimately (only) serve the best interests of the corporation.

As long as the best interests of ICANN the corporation and the „public interest” are aligned (or are so in the opinion of the board) all is probably well. If they are not, if the are not in the opinion of the board, or if the board misinterprets the public interests and/or the corporations interests, problems arise.

It surely has not always been the case, but in my opinion the board and CEO have done pretty well over the last years in finding the right balance (or alignment) between corporate and public/community interests. No guarantee that that will remain the case indefinitely however, especially if there’s no longer the NTIA/USG to subtly threaten with corrective measures...

As far as I understand it, we mean by „enhanced accountability” that ultimately, when the *stuff* hits the fan, the public interest will be the decisive interest and NOT the corporation's.

I do not think that can be demanded from the board. I agree that we should consider multiple solutions to this challenge. One of which might be assigning the task and the authority required for it, to an external or semi-external structure, through the bylaws of that corporation. In such a situation, the members of that structure should obviously not be appointed by (the board of) the corporation. But by those representing the public interest.

Cheers,

Roelof Meijer

SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 <tel:%2B31%20%280%2926%20352%2055%2000> | M +31 (0)6 11 395 775 <tel:%2B31%20%280%296%2011%20395%20775> | F +31 (0)26 352 55 05 <tel:%2B31%20%280%2926%20352%2055%2005> roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl> | www.sidn.nl <http://www.sidn.nl> <http://www.sidn.nl/>

On 23-12-14 06:18, "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:

>Thanks Samantha, > >Just adding a link to the resource for everyone to access easily : >DOC version : >https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun >tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 >9299658000 <tel:9299658000>&api=v2 > >PDF version : >https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun >tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 >9299658000 <tel:9299658000>&api=v2 > > >Mathieu > >Le 23/12/2014 02:57, Samantha Eisner a écrit : >> Hi - >> >> I’ve done a first attempt (which is by no means comprehensive) of our >> assigned task and uploaded to the wiki. I think we’d benefit from >>seeing >> what other detail we’d like in there, so I put this out to start the >> conversation. >> >> Best, >> >> Sam >> >> On 12/16/14, 1:43 PM, "David W. Maher" <dmaher@pir.org <mailto:dmaher@pir.org>> wrote: >> >>> I agree >>> David >>> David W. Maher >>> Senior Vice President – Law & Policy >>> Public Interest Registry >>> 312 375 4849 <tel:312%20375%204849> >>> >>> >>> >>> >>> >>> >>> On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote: >>> >>>> Samantha, Colleagues, >>>> >>>> That is indeed what I understand from the discussion. You could also >>>>add >>>> a 3) is it review, redress or check & balance (see Netmundial >>>>definition >>>> of Accountability). >>>> >>>> Best >>>> Mathieu >>>> >>>> Le 16/12/2014 13:04, Samantha Eisner a écrit : >>>>> Colleagues, >>>>> >>>>> Listening to the discussion, I propose think that one of the new >>>>> refined >>>>> tasks that we could undertake would be, for each mechanism that we’ve >>>>> identified on the inventory, first try to answer the questions of: >>>>> >>>>> 1) To whom does this mechanism seek to make ICANN accountable; and >>>>> 2) For what >>>>> >>>>> This could be a starting point for parsing through the next wave of >>>>> issues >>>>> that we are agreeing to take on. >>>>> >>>>> Best, >>>>> >>>>> Sam >>>>> >>>>> On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org <mailto:dmaher@pir.org>> wrote: >>>>> >>>>>> Thanks, Samantha. >>>>>> On the subject of contractual sources of accountability, it should >>>>>>be >>>>>> noted that the proposed withdrawal of NTIA from IANA functions will >>>>>> remove >>>>>> NTIA as a source of accountability enforcement. >>>>>> I propose that the Sub Group look for other contractual sources and >>>>>>at >>>>>> the >>>>>> same time explore the possibility of broadening the scope of >>>>>> accountability enforceable by contract. >>>>>> For example, the registries and registrars could enter into >>>>>>contracts >>>>>> with >>>>>> ICANN covering the IANA functions in addition to the following: >>>>>> 1. ICANN could agree by binding contract not to impose rules on >>>>>>third >>>>>> parties (by means of policies, accreditation standards, or required >>>>>> contract terms) that are not supported by a demonstrated consensus >>>>>> among >>>>>> affected parties. >>>>>> 2. ICANN could agree by binding contract not to impose rules on >>>>>>third >>>>>> parties (by means of policies, accreditation standards, or required >>>>>> contract terms) that do not relate to issues the uniform resolution >>>>>>of >>>>>> which is necessary to assure sound operation of the domain name >>>>>> system. >>>>>> 3. ICANN could agree by binding contract not to impose rules on >>>>>>third >>>>>> parties (by means of policies, accreditation standards, or required >>>>>> contract terms) that relate to online content or to online behavior >>>>>> that >>>>>> does not threaten the sound operation of the domain name system? >>>>>> 4. ICANN could agree that any claim that it has not complied with >>>>>>the >>>>>> previous three obligations may be brought by any adversely affected >>>>>> party >>>>>> before an independent review panel that can issue decisions that are >>>>>> binding on ICANN. >>>>>> >>>>>> David >>>>>> >>>>>> >>>>>> David W. Maher >>>>>> Senior Vice President ­ Law & Policy >>>>>> Public Interest Registry >>>>>> 312 375 4849 <tel:312%20375%204849> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> >>>>>> wrote: >>>>>> >>>>>>> Hi all - >>>>>>> >>>>>>> I posted a new version of the document on the wiki page in clean >>>>>>>and >>>>>>> redline form. The proposed changes include: >>>>>>> 1. To address Malcolm Hutty¹s edit regarding contractual sources of >>>>>>> accountability, I made a ³contract² heading and also listed >>>>>>>Registry >>>>>>> and >>>>>>> Registrar Contracts under there. >>>>>>> 2. To address David¹s inclusion of SSAC recommendations as a source >>>>>>> of >>>>>>> accountability, I incorporated a heading under Bylaws that >>>>>>>accounted >>>>>>> for >>>>>>> Advisory Committee inputs. (Note that action is pending on ATRT2 >>>>>>> recommendations regarding ICANN¹s obligations on considerate of >>>>>>> advice >>>>>> >from ACs other than the GAC). Because identifying accountability >>>>>>in >>>>>>> terms >>>>>>> of advice did not then seem complete without reference to the >>>>>>>policy >>>>>>> recommendations upon which that advice is often given, I referenced >>>>>>> the >>>>>>> policy development/Board consideration of policy recommendations >>>>>>>for >>>>>>> each >>>>>>> of the SOs. >>>>>>> 3. Inserted summary listings of all ATRT recommendations (1 and 2) >>>>>>> >>>>>>> In terms of background documentation, I modified the page to make a >>>>>>> clear >>>>>>> delineation between the background info and the drafting work >>>>>>> ongoing. >>>>>>> In >>>>>>> line with David¹s concern and Bruce¹s suggestion, I excerpted the >>>>>>> presentation I previously circulated, and posted only the part that >>>>>>> deals >>>>>>> with the inventory effort, so as not to bring all the questions in >>>>>>>at >>>>>>> this >>>>>>> stage. >>>>>>> >>>>>>> I also included an excerpt to the inventory effort undertaken by >>>>>>> ICANN in >>>>>>> advance of the first postings on Enhancing ICANN Accountability. >>>>>>> >>>>>>> Please let me know if you have any questions. >>>>>>> >>>>>>> Sam >>>>>>> >>>>>>> >>>>>>> >>>>>>> On 12/13/14, 4:01 PM, "Bruce Tonkin" >>>>>>> <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> >>>>>>> wrote: >>>>>>> >>>>>>>> Hello Samantha, >>>>>>>> >>>>>>>> Is it possible to split this presentation from London into its two >>>>>>>> components? >>>>>>>> >>>>>>>> The first few slides list some of the accountability mechanisms >>>>>>>> available >>>>>>>> within the ICANN structure. The ATRT2 review identified some >>>>>>>> improvements to make to these mechanisms. >>>>>>>> >>>>>>>> The slides from 11-28 are a general presentation about >>>>>>>> accountability >>>>>>> >from Professor Jan Aart Scholte, School of Global Studies, >>>>>>> .University >>>>>>>> of >>>>>>>> Gothenburg. >>>>>>>> >>>>>>>> He lists 9 framing questions to consider when looking at >>>>>>>> accountability >>>>>>>> mechanisms: >>>>>>>> >>>>>>>> (1) What is accountability? >>>>>>>> >>>>>>>> - processes whereby an actor answers to other actors for the >>>>>>>> impacts on >>>>>>>> them of its actions and omissions >>>>>>>> >>>>>>>> (2) with what components? >>>>>>>> >>>>>>>> - transparency >>>>>>>> >>>>>>>> - consultation >>>>>>>> >>>>>>>> - monitoring and evaluation >>>>>>>> >>>>>>>> - correction and redress >>>>>>>> >>>>>>>> >>>>>>>> (3) for what purpose? >>>>>>>> >>>>>>>> - financial review; 'the accounts' >>>>>>>> >>>>>>>> - performance measurement >>>>>>>> >>>>>>>> - democratic participation/control >>>>>>>> >>>>>>>> - moral probity; ecological integrity; peace; etc. >>>>>>>> >>>>>>>> >>>>>>>> (4) Accountability by whom? >>>>>>>> >>>>>>>> - challenge of pinning down and specifying impact in the context >>>>>>>>of >>>>>>>> complex polycentric governance >>>>>>>> >>>>>>>> >>>>>>>> (5) for what? >>>>>>>> >>>>>>>> - actual formal mandate >>>>>>>> >>>>>>>> - desired mandate (content? spam? digital access?) >>>>>>>> >>>>>>>> >>>>>>>> (6) to whom? >>>>>>>> >>>>>>>> - 'the public' of significantly affected people (but >>>>>>>>metaphysical, >>>>>>>> ecological?) >>>>>>>> >>>>>>>> - 'the public' not unitary, as different people are differently >>>>>>>> affected >>>>>>>> >>>>>>>> - constituencies (divisions within and overlaps between) >>>>>>>> >>>>>>>> >>>>>>>> (7) for whom? >>>>>>>> >>>>>>>> - myth of a universal 'global community' with same interests and >>>>>>>> equal >>>>>>>> power >>>>>>>> >>>>>>>> - skewed accountability on lines of age, caste, class, >>>>>>>> (dis)ability, >>>>>>>> faith, gender, geography, language, nationality, race, sexuality >>>>>>>> >>>>>>>> >>>>>>>> (8) via what channels? >>>>>>>> >>>>>>>> - hegemonic veto >>>>>>>> >>>>>>>> - intergovernmental multilateralism >>>>>>>> >>>>>>>> - (global) political parties and parliaments >>>>>>>> >>>>>>>> - multi-stakeholder arrangements >>>>>>>> >>>>>>>> - civil society deliberation and mobilization >>>>>>>> >>>>>>>> - judiciary (court, inspection panel, evaluation exercises, >>>>>>>> ombudsman) >>>>>>>> >>>>>>>> - mass media >>>>>>>> >>>>>>>> >>>>>>>> (9) how accountably? >>>>>>>> >>>>>>>> - 'When you point a finger, you need to do it with a clean hand' >>>>>>>> >>>>>>>> - transparency, consultation, monitoring and redress of those >>>>>>>>who >>>>>>>> (claim to) speak for affected publics >>>>>>>> >>>>>>>> Regards, >>>>>>>> Bruce Tonkin >>>>> _______________________________________________ >>>>> Ccwg-accountability1 mailing list >>>>> Ccwg-accountability1@icann.org <mailto:Ccwg-accountability1@icann.org> >>>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability1 >>>> -- >>>> ***************************** >>>> Mathieu WEILL >>>> AFNIC - directeur général >>>> Tél: +33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006> >>>> mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> >>>> Twitter : @mathieuweill >>>> ***************************** >>>> >>>> _______________________________________________ >>>> Ccwg-accountability1 mailing list >>>> Ccwg-accountability1@icann.org <mailto:Ccwg-accountability1@icann.org> >>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability1 >>> _______________________________________________ >>> Ccwg-accountability1 mailing list >>> Ccwg-accountability1@icann.org <mailto:Ccwg-accountability1@icann.org> >>> https://mm.icann.org/mailman/listinfo/ccwg-accountability1 > >-- >***************************** >Mathieu WEILL >AFNIC - directeur général >Tél: +33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006> >mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> >Twitter : @mathieuweill >***************************** > >_______________________________________________ >Ccwg-accountability1 mailing list >Ccwg-accountability1@icann.org <mailto:Ccwg-accountability1@icann.org> >https://mm.icann.org/mailman/listinfo/ccwg-accountability1

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-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

Hi Samantha, My personal view would be to inventory anything that is specific to icann regarding these "management" accountability mechanisms. That would probably include : - the board selection process, mentioned in the document you shared, as well as it's composition - the CEO selection process, as well as practices to renew / assess / remove the CEO - anything that would identify a specific relationship between some member of the staff and the Board, such as staff members who would report at least in part to the board (in some companies, this is the case for audit directors, sometimes the CFO, etc.) - any external systematic auditors (I know ICANN has its account audited every year) - and finally, probably any accountability mechanism related to strategy definition or execution. Happy to hear other inputs and feedbacks. Happy holidays, Mathieu Weill --------------- Depuis mon mobile, désolé pour le style

Le 24 déc. 2014 à 19:19, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :

Hi Mathieu,

If you take a look at one of the initial inventories that ICANN put together as this accountability conversation was starting after the transition announcement (Inventory of ICANN Accountability Efforts (6 May 2014).pdf) you’ll see that there was some of this more management-based work in there. The Area 1 document that we produced was more about redress mechanisms than the management/operations focus. I agree that having clear goals and performing to those goals (be they in the strategic plan or operating plan – which is derived from the strategic plan) is a really important measure of accountability. The question of “is the organization doing what it says it is going to do” is fundamental.

How deep would you prefer for the Area 1 document to go?

Best,

Sam

From: Mathieu Weill <mathieu.weill@afnic.fr> Reply-To: Mathieu Weill <mathieu.weill@afnic.fr> Date: Wednesday, December 24, 2014 at 5:48 AM To: Samantha Eisner <samantha.eisner@icann.org>, Kavouss Arasteh <kavouss.arasteh@gmail.com>, Roelof Meijer <Roelof.Meijer@sidn.nl> Cc: "David W. Maher" <dmaher@pir.org>, "ccwg-accountability1@icann.org" <ccwg-accountability1@icann.org> Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft

Dear Colleagues,

I have reviewed the document, and confirm that it is certainly going to be a cornerstone of our work.

With my CEO hat on, I realized we were not explicitly mentioning any accountability mechanisms regarding the achievement of strategic goals, or delivering certain key projects on time, or within budget.

Is it because we just forgot them ? If that is the case, I think it would be valuable to add this kind of accountability mechanism in our overview of the current situation at Icann. I have a feeling that we have naturally been inclined to overlook this kind of "management" accountability mechanisms.

To give more examples, within Afnic, the CEO is accountable to the Board to achieve certain goals of the strategic plan. And the Board can dismiss the CEO in case performance is not appropriate. The CEO can delegate some of these goals to staff and has the same kind of power (although under more constraints) regarding staff.

And of course, Board members come up for re-election on a regular basis. So if the Board is felt to be not performing correctly, the general assembly can change Board members.

Best Mathieu

Le 24/12/2014 00:09, Samantha Eisner a écrit :

...

Dear Kavouss,

The document is on the WG1 draft page at: https://community.icann.org/display/acctcrosscomm/Work+Area+1+-+Draft+Docume...

The link to the document in WORD format: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... and PDF: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta...

Best,

Samantha

From: Kavouss Arasteh <kavouss.arasteh@gmail.com> Date: Tuesday, December 23, 2014 at 2:51 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl> Cc: Mathieu Weill <mathieu.weill@afnic.fr>, Samantha Eisner <samantha.eisner@icann.org>, "David W. Maher" <dmaher@pir.org>, "ccwg-accountability1@icann.org" <ccwg-accountability1@icann.org> Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft

Dear Samantha Tks for information. I could not find your doc. on the wiki WG1 May you pls either direct me to the area that I could find that last doc. or send me the doc. Regards Kavouss

2014-12-23 15:19 GMT+01:00 Roelof Meijer <Roelof.Meijer@sidn.nl>:

...

Dear all,

As discussed, I suggest the table to be expanded with at least one column „final say” or „stops the buck” or something, that states where the final decision lies. I bet that in most cases we will find that this is the ICANN Board. Which is not a flaw in the system, but -as I am sure you are all aware- just the logic result of the present (common) governance structure of the corporation, whereby board members have a fiduciary duty and ultimately (only) serve the best interests of the corporation.

As long as the best interests of ICANN the corporation and the „public interest” are aligned (or are so in the opinion of the board) all is probably well. If they are not, if the are not in the opinion of the board, or if the board misinterprets the public interests and/or the corporations interests, problems arise.

It surely has not always been the case, but in my opinion the board and CEO have done pretty well over the last years in finding the right balance (or alignment) between corporate and public/community interests. No guarantee that that will remain the case indefinitely however, especially if there’s no longer the NTIA/USG to subtly threaten with corrective measures...

As far as I understand it, we mean by „enhanced accountability” that ultimately, when the *stuff* hits the fan, the public interest will be the decisive interest and NOT the corporation's.

I do not think that can be demanded from the board. I agree that we should consider multiple solutions to this challenge. One of which might be assigning the task and the authority required for it, to an external or semi-external structure, through the bylaws of that corporation. In such a situation, the members of that structure should obviously not be appointed by (the board of) the corporation. But by those representing the public interest.

Cheers,

Roelof Meijer

SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 roelof.meijer@sidn.nl | www.sidn.nl <http://www.sidn.nl/>

On 23-12-14 06:18, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

...

Thanks Samantha,

Just adding a link to the resource for everyone to access easily : DOC version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

PDF version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

Mathieu

Le 23/12/2014 02:57, Samantha Eisner a écrit :

...

Hi -

I’ve done a first attempt (which is by no means comprehensive) of our assigned task and uploaded to the wiki. I think we’d benefit from seeing what other detail we’d like in there, so I put this out to start the conversation.

Best,

Sam

On 12/16/14, 1:43 PM, "David W. Maher" <dmaher@pir.org> wrote:

...

I agree David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849

On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

> Samantha, Colleagues, > > That is indeed what I understand from the discussion. You could also >add > a 3) is it review, redress or check & balance (see Netmundial >definition > of Accountability). > > Best > Mathieu > > Le 16/12/2014 13:04, Samantha Eisner a écrit : >> Colleagues, >> >> Listening to the discussion, I propose think that one of the new >> refined >> tasks that we could undertake would be, for each mechanism that we’ve >> identified on the inventory, first try to answer the questions of: >> >> 1) To whom does this mechanism seek to make ICANN accountable; and >> 2) For what >> >> This could be a starting point for parsing through the next wave of >> issues >> that we are agreeing to take on. >> >> Best, >> >> Sam >> >> On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote: >> >>> Thanks, Samantha. >>> On the subject of contractual sources of accountability, it should >>>be >>> noted that the proposed withdrawal of NTIA from IANA functions will >>> remove >>> NTIA as a source of accountability enforcement. >>> I propose that the Sub Group look for other contractual sources and >>>at >>> the >>> same time explore the possibility of broadening the scope of >>> accountability enforceable by contract. >>> For example, the registries and registrars could enter into >>>contracts >>> with >>> ICANN covering the IANA functions in addition to the following: >>> 1. ICANN could agree by binding contract not to impose rules on >>>third >>> parties (by means of policies, accreditation standards, or required >>> contract terms) that are not supported by a demonstrated consensus >>> among >>> affected parties. >>> 2. ICANN could agree by binding contract not to impose rules on >>>third >>> parties (by means of policies, accreditation standards, or required >>> contract terms) that do not relate to issues the uniform resolution >>>of >>> which is necessary to assure sound operation of the domain name >>> system. >>> 3. ICANN could agree by binding contract not to impose rules on >>>third >>> parties (by means of policies, accreditation standards, or required >>> contract terms) that relate to online content or to online behavior >>> that >>> does not threaten the sound operation of the domain name system? >>> 4. ICANN could agree that any claim that it has not complied with >>>the >>> previous three obligations may be brought by any adversely affected >>> party >>> before an independent review panel that can issue decisions that are >>> binding on ICANN. >>> >>> David >>> >>> >>> David W. Maher >>> Senior Vice President ­ Law & Policy >>> Public Interest Registry >>> 312 375 4849 >>> >>> >>> >>> >>> >>> >>> On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> >>> wrote: >>> >>>> Hi all - >>>> >>>> I posted a new version of the document on the wiki page in clean >>>>and >>>> redline form. The proposed changes include: >>>> 1. To address Malcolm Hutty¹s edit regarding contractual sources of >>>> accountability, I made a ³contract² heading and also listed >>>>Registry >>>> and >>>> Registrar Contracts under there. >>>> 2. To address David¹s inclusion of SSAC recommendations as a source >>>> of >>>> accountability, I incorporated a heading under Bylaws that >>>>accounted >>>> for >>>> Advisory Committee inputs. (Note that action is pending on ATRT2 >>>> recommendations regarding ICANN¹s obligations on considerate of >>>> advice >>> >from ACs other than the GAC). Because identifying accountability >>>in >>>> terms >>>> of advice did not then seem complete without reference to the >>>>policy >>>> recommendations upon which that advice is often given, I referenced >>>> the >>>> policy development/Board consideration of policy recommendations >>>>for >>>> each >>>> of the SOs. >>>> 3. Inserted summary listings of all ATRT recommendations (1 and 2) >>>> >>>> In terms of background documentation, I modified the page to make a >>>> clear >>>> delineation between the background info and the drafting work >>>> ongoing. >>>> In >>>> line with David¹s concern and Bruce¹s suggestion, I excerpted the >>>> presentation I previously circulated, and posted only the part that >>>> deals >>>> with the inventory effort, so as not to bring all the questions in >>>>at >>>> this >>>> stage. >>>> >>>> I also included an excerpt to the inventory effort undertaken by >>>> ICANN in >>>> advance of the first postings on Enhancing ICANN Accountability. >>>> >>>> Please let me know if you have any questions. >>>> >>>> Sam >>>> >>>> >>>> >>>> On 12/13/14, 4:01 PM, "Bruce Tonkin" >>>> <Bruce.Tonkin@melbourneit.com.au> >>>> wrote: >>>> >>>>> Hello Samantha, >>>>> >>>>> Is it possible to split this presentation from London into its two >>>>> components? >>>>> >>>>> The first few slides list some of the accountability mechanisms >>>>> available >>>>> within the ICANN structure. The ATRT2 review identified some >>>>> improvements to make to these mechanisms. >>>>> >>>>> The slides from 11-28 are a general presentation about >>>>> accountability >>>> >from Professor Jan Aart Scholte, School of Global Studies, >>>> .University >>>>> of >>>>> Gothenburg. >>>>> >>>>> He lists 9 framing questions to consider when looking at >>>>> accountability >>>>> mechanisms: >>>>> >>>>> (1) What is accountability? >>>>> >>>>> - processes whereby an actor answers to other actors for the >>>>> impacts on >>>>> them of its actions and omissions >>>>> >>>>> (2) with what components? >>>>> >>>>> - transparency >>>>> >>>>> - consultation >>>>> >>>>> - monitoring and evaluation >>>>> >>>>> - correction and redress >>>>> >>>>> >>>>> (3) for what purpose? >>>>> >>>>> - financial review; 'the accounts' >>>>> >>>>> - performance measurement >>>>> >>>>> - democratic participation/control >>>>> >>>>> - moral probity; ecological integrity; peace; etc. >>>>> >>>>> >>>>> (4) Accountability by whom? >>>>> >>>>> - challenge of pinning down and specifying impact in the context >>>>>of >>>>> complex polycentric governance >>>>> >>>>> >>>>> (5) for what? >>>>> >>>>> - actual formal mandate >>>>> >>>>> - desired mandate (content? spam? digital access?) >>>>> >>>>> >>>>> (6) to whom? >>>>> >>>>> - 'the public' of significantly affected people (but >>>>>metaphysical, >>>>> ecological?) >>>>> >>>>> - 'the public' not unitary, as different people are differently >>>>> affected >>>>> >>>>> - constituencies (divisions within and overlaps between) >>>>> >>>>> >>>>> (7) for whom? >>>>> >>>>> - myth of a universal 'global community' with same interests and >>>>> equal >>>>> power >>>>> >>>>> - skewed accountability on lines of age, caste, class, >>>>> (dis)ability, >>>>> faith, gender, geography, language, nationality, race, sexuality >>>>> >>>>> >>>>> (8) via what channels? >>>>> >>>>> - hegemonic veto >>>>> >>>>> - intergovernmental multilateralism >>>>> >>>>> - (global) political parties and parliaments >>>>> >>>>> - multi-stakeholder arrangements >>>>> >>>>> - civil society deliberation and mobilization >>>>> >>>>> - judiciary (court, inspection panel, evaluation exercises, >>>>> ombudsman) >>>>> >>>>> - mass media >>>>> >>>>> >>>>> (9) how accountably? >>>>> >>>>> - 'When you point a finger, you need to do it with a clean hand' >>>>> >>>>> - transparency, consultation, monitoring and redress of those >>>>>who >>>>> (claim to) speak for affected publics >>>>> >>>>> Regards, >>>>> Bruce Tonkin >> _______________________________________________ >> Ccwg-accountability1 mailing list >> Ccwg-accountability1@icann.org >> https://mm.icann.org/mailman/listinfo/ccwg-accountability1 > -- > ***************************** > Mathieu WEILL > AFNIC - directeur général > Tél: +33 1 39 30 83 06 > mathieu.weill@afnic.fr > Twitter : @mathieuweill > ***************************** > > _______________________________________________ > Ccwg-accountability1 mailing list > Ccwg-accountability1@icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability1 _______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1

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Hi Mathieu, Samantha, WG participants, Happy holidays. I am very much in agreement with this top down strategic, budgetary control approach to identify “management” accountability mechanisms currently in place and those that will be required in the future. I think we are all agreed that ICANN is currently a one off hybrid non for profit organisation. With ICANN contracting with 1400+ new TLD Registries over the coming two years ( rather than originally only 22 pre 2013), the whole organisation will have to adapt to a more traditional for profit corporate reporting , accountability environment with the huge increase in reported revenues and the ways to spend it ! With already $357 M received from applications , probably another $100- 200M from auctions , let alone fixed and variable per registration fees ( ICANN is projecting 15M gTLD registrations by close 2016 ) it is clearly imperative that a new accountability structure needs to be put in place. Can I suggest ( or has it already been done) that a corporate tree diagram is draw up , showing the current check and balances that are in place. As I said before, I would “ring fence” the whole gTLD programme, which would aid in the requirement of the AOC to report on the 60 GNSO metrics on its success or otherwise and whether there should be a Round 2 . Hope that helps and is not too deep at this stage. Regards, Phil From: ccwg-accountability1-bounces@icann.org [mailto:ccwg-accountability1-bounces@icann.org] On Behalf Of Mathieu Weill Sent: 25 December 2014 20:31 To: Samantha Eisner Cc: ccwg-accountability1@icann.org Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft Hi Samantha, My personal view would be to inventory anything that is specific to icann regarding these "management" accountability mechanisms. That would probably include : - the board selection process, mentioned in the document you shared, as well as it's composition - the CEO selection process, as well as practices to renew / assess / remove the CEO - anything that would identify a specific relationship between some member of the staff and the Board, such as staff members who would report at least in part to the board (in some companies, this is the case for audit directors, sometimes the CFO, etc.) - any external systematic auditors (I know ICANN has its account audited every year) - and finally, probably any accountability mechanism related to strategy definition or execution. Happy to hear other inputs and feedbacks. Happy holidays, Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 24 déc. 2014 à 19:19, Samantha Eisner <Samantha.Eisner@icann.org> a écrit : Hi Mathieu, If you take a look at one of the initial inventories that ICANN put together as this accountability conversation was starting after the transition announcement ( <https://community.icann.org/download/attachments/51414329/Inventory%20of%C2%...> Inventory of ICANN Accountability Efforts (6 May 2014).pdf) you’ll see that there was some of this more management-based work in there. The Area 1 document that we produced was more about redress mechanisms than the management/operations focus. I agree that having clear goals and performing to those goals (be they in the strategic plan or operating plan – which is derived from the strategic plan) is a really important measure of accountability. The question of “is the organization doing what it says it is going to do” is fundamental. How deep would you prefer for the Area 1 document to go? Best, Sam From: Mathieu Weill <mathieu.weill@afnic.fr> Reply-To: Mathieu Weill <mathieu.weill@afnic.fr> Date: Wednesday, December 24, 2014 at 5:48 AM To: Samantha Eisner <samantha.eisner@icann.org>, Kavouss Arasteh <kavouss.arasteh@gmail.com>, Roelof Meijer <Roelof.Meijer@sidn.nl> Cc: "David W. Maher" <dmaher@pir.org>, "ccwg-accountability1@icann.org" <ccwg-accountability1@icann.org> Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft Dear Colleagues, I have reviewed the document, and confirm that it is certainly going to be a cornerstone of our work. With my CEO hat on, I realized we were not explicitly mentioning any accountability mechanisms regarding the achievement of strategic goals, or delivering certain key projects on time, or within budget. Is it because we just forgot them ? If that is the case, I think it would be valuable to add this kind of accountability mechanism in our overview of the current situation at Icann. I have a feeling that we have naturally been inclined to overlook this kind of "management" accountability mechanisms. To give more examples, within Afnic, the CEO is accountable to the Board to achieve certain goals of the strategic plan. And the Board can dismiss the CEO in case performance is not appropriate. The CEO can delegate some of these goals to staff and has the same kind of power (although under more constraints) regarding staff. And of course, Board members come up for re-election on a regular basis. So if the Board is felt to be not performing correctly, the general assembly can change Board members. Best Mathieu Le 24/12/2014 00:09, Samantha Eisner a écrit : Dear Kavouss, The document is on the WG1 draft page at: https://community.icann.org/display/acctcrosscomm/Work+Area+1+-+Draft+Docume... The link to the document in WORD format: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... <https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta...> &modificationDate=1419299658000&api=v2 and PDF: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... <https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta...> &modificationDate=1419299650000&api=v2 Best, Samantha From: Kavouss Arasteh <kavouss.arasteh@gmail.com> Date: Tuesday, December 23, 2014 at 2:51 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl> Cc: Mathieu Weill <mathieu.weill@afnic.fr>, Samantha Eisner <samantha.eisner@icann.org>, "David W. Maher" <dmaher@pir.org>, "ccwg-accountability1@icann.org" <ccwg-accountability1@icann.org> Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft Dear Samantha Tks for information. I could not find your doc. on the wiki WG1 May you pls either direct me to the area that I could find that last doc. or send me the doc. Regards Kavouss 2014-12-23 15:19 GMT+01:00 Roelof Meijer <Roelof.Meijer@sidn.nl>: Dear all, As discussed, I suggest the table to be expanded with at least one column „final say” or „stops the buck” or something, that states where the final decision lies. I bet that in most cases we will find that this is the ICANN Board. Which is not a flaw in the system, but -as I am sure you are all aware- just the logic result of the present (common) governance structure of the corporation, whereby board members have a fiduciary duty and ultimately (only) serve the best interests of the corporation. As long as the best interests of ICANN the corporation and the „public interest” are aligned (or are so in the opinion of the board) all is probably well. If they are not, if the are not in the opinion of the board, or if the board misinterprets the public interests and/or the corporations interests, problems arise. It surely has not always been the case, but in my opinion the board and CEO have done pretty well over the last years in finding the right balance (or alignment) between corporate and public/community interests. No guarantee that that will remain the case indefinitely however, especially if there’s no longer the NTIA/USG to subtly threaten with corrective measures... As far as I understand it, we mean by „enhanced accountability” that ultimately, when the *stuff* hits the fan, the public interest will be the decisive interest and NOT the corporation's. I do not think that can be demanded from the board. I agree that we should consider multiple solutions to this challenge. One of which might be assigning the task and the authority required for it, to an external or semi-external structure, through the bylaws of that corporation. In such a situation, the members of that structure should obviously not be appointed by (the board of) the corporation. But by those representing the public interest. Cheers, Roelof Meijer SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 <tel:%2B31%20%280%2926%20352%2055%2000> | M +31 (0)6 11 395 775 <tel:%2B31%20%280%296%2011%20395%20775> | F +31 (0)26 352 55 05 <tel:%2B31%20%280%2926%20352%2055%2005> roelof.meijer@sidn.nl | www.sidn.nl <http://www.sidn.nl/> On 23-12-14 06:18, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

Thanks Samantha,

Just adding a link to the resource for everyone to access easily : DOC version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

PDF version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

Mathieu

Le 23/12/2014 02:57, Samantha Eisner a écrit :

...

Hi -

I’ve done a first attempt (which is by no means comprehensive) of our assigned task and uploaded to the wiki. I think we’d benefit from seeing what other detail we’d like in there, so I put this out to start the conversation.

Best,

Sam

On 12/16/14, 1:43 PM, "David W. Maher" <dmaher@pir.org> wrote:

...

I agree David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 <tel:312%20375%204849>

On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

...

Samantha, Colleagues,

That is indeed what I understand from the discussion. You could also add a 3) is it review, redress or check & balance (see Netmundial definition of Accountability).

Best Mathieu

Le 16/12/2014 13:04, Samantha Eisner a écrit :

...

Colleagues,

Listening to the discussion, I propose think that one of the new refined tasks that we could undertake would be, for each mechanism that we’ve identified on the inventory, first try to answer the questions of:

1) To whom does this mechanism seek to make ICANN accountable; and 2) For what

This could be a starting point for parsing through the next wave of issues that we are agreeing to take on.

Best,

Sam

On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote:

...

Thanks, Samantha. On the subject of contractual sources of accountability, it should be noted that the proposed withdrawal of NTIA from IANA functions will remove NTIA as a source of accountability enforcement. I propose that the Sub Group look for other contractual sources and at the same time explore the possibility of broadening the scope of accountability enforceable by contract. For example, the registries and registrars could enter into contracts with ICANN covering the IANA functions in addition to the following: 1. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that are not supported by a demonstrated consensus among affected parties. 2. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that do not relate to issues the uniform resolution of which is necessary to assure sound operation of the domain name system. 3. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that relate to online content or to online behavior that does not threaten the sound operation of the domain name system? 4. ICANN could agree that any claim that it has not complied with the previous three obligations may be brought by any adversely affected party before an independent review panel that can issue decisions that are binding on ICANN.

David

David W. Maher Senior Vice President ­ Law & Policy Public Interest Registry 312 375 4849 <tel:312%20375%204849>

On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:

> Hi all - > > I posted a new version of the document on the wiki page in clean >and > redline form. The proposed changes include: > 1. To address Malcolm Hutty¹s edit regarding contractual sources of > accountability, I made a ³contract² heading and also listed >Registry > and > Registrar Contracts under there. > 2. To address David¹s inclusion of SSAC recommendations as a source > of > accountability, I incorporated a heading under Bylaws that >accounted > for > Advisory Committee inputs. (Note that action is pending on ATRT2 > recommendations regarding ICANN¹s obligations on considerate of > advice >from ACs other than the GAC). Because identifying accountability in > terms > of advice did not then seem complete without reference to the >policy > recommendations upon which that advice is often given, I referenced > the > policy development/Board consideration of policy recommendations >for > each > of the SOs. > 3. Inserted summary listings of all ATRT recommendations (1 and 2) > > In terms of background documentation, I modified the page to make a > clear > delineation between the background info and the drafting work > ongoing. > In > line with David¹s concern and Bruce¹s suggestion, I excerpted the > presentation I previously circulated, and posted only the part that > deals > with the inventory effort, so as not to bring all the questions in >at > this > stage. > > I also included an excerpt to the inventory effort undertaken by > ICANN in > advance of the first postings on Enhancing ICANN Accountability. > > Please let me know if you have any questions. > > Sam > > > > On 12/13/14, 4:01 PM, "Bruce Tonkin" > <Bruce.Tonkin@melbourneit.com.au> > wrote: > >> Hello Samantha, >> >> Is it possible to split this presentation from London into its two >> components? >> >> The first few slides list some of the accountability mechanisms >> available >> within the ICANN structure. The ATRT2 review identified some >> improvements to make to these mechanisms. >> >> The slides from 11-28 are a general presentation about >> accountability > >from Professor Jan Aart Scholte, School of Global Studies, > .University >> of >> Gothenburg. >> >> He lists 9 framing questions to consider when looking at >> accountability >> mechanisms: >> >> (1) What is accountability? >> >> - processes whereby an actor answers to other actors for the >> impacts on >> them of its actions and omissions >> >> (2) with what components? >> >> - transparency >> >> - consultation >> >> - monitoring and evaluation >> >> - correction and redress >> >> >> (3) for what purpose? >> >> - financial review; 'the accounts' >> >> - performance measurement >> >> - democratic participation/control >> >> - moral probity; ecological integrity; peace; etc. >> >> >> (4) Accountability by whom? >> >> - challenge of pinning down and specifying impact in the context >>of >> complex polycentric governance >> >> >> (5) for what? >> >> - actual formal mandate >> >> - desired mandate (content? spam? digital access?) >> >> >> (6) to whom? >> >> - 'the public' of significantly affected people (but >>metaphysical, >> ecological?) >> >> - 'the public' not unitary, as different people are differently >> affected >> >> - constituencies (divisions within and overlaps between) >> >> >> (7) for whom? >> >> - myth of a universal 'global community' with same interests and >> equal >> power >> >> - skewed accountability on lines of age, caste, class, >> (dis)ability, >> faith, gender, geography, language, nationality, race, sexuality >> >> >> (8) via what channels? >> >> - hegemonic veto >> >> - intergovernmental multilateralism >> >> - (global) political parties and parliaments >> >> - multi-stakeholder arrangements >> >> - civil society deliberation and mobilization >> >> - judiciary (court, inspection panel, evaluation exercises, >> ombudsman) >> >> - mass media >> >> >> (9) how accountably? >> >> - 'When you point a finger, you need to do it with a clean hand' >> >> - transparency, consultation, monitoring and redress of those >>who >> (claim to) speak for affected publics >> >> Regards, >> Bruce Tonkin

---

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_______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1 -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

Dear All, Thank you very much for the usefull materials provided As I see it, this is no more than an inventory and tghus should not go Under a piecemeal approach We should look at the other outputs from other groups and take all these inventory and rearrange the whole things The current situation stemmed from the strong link with NTIA .Once (if and only if,) the transition occurrshe whole thing would change.tHE CONCEPT IS ENTIRELY DIFFERENT AND BY SUCH A CUT AND PASTE it would not work at all See some comments as attached 2014-12-24 0:09 GMT+01:00 Samantha Eisner <Samantha.Eisner@icann.org>:

Dear Kavouss,

The document is on the WG1 draft page at: https://community.icann.org/display/acctcrosscomm/Work+Area+1+-+Draft+Docume...

The link to the document in WORD format: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... and PDF: https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta...

Best,

Samantha

From: Kavouss Arasteh <kavouss.arasteh@gmail.com> Date: Tuesday, December 23, 2014 at 2:51 PM To: Roelof Meijer <Roelof.Meijer@sidn.nl> Cc: Mathieu Weill <mathieu.weill@afnic.fr>, Samantha Eisner < samantha.eisner@icann.org>, "David W. Maher" <dmaher@pir.org>, " ccwg-accountability1@icann.org" <ccwg-accountability1@icann.org> Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft

Dear Samantha Tks for information. I could not find your doc. on the wiki WG1 May you pls either direct me to the area that I could find that last doc. or send me the doc. Regards Kavouss

2014-12-23 15:19 GMT+01:00 Roelof Meijer <Roelof.Meijer@sidn.nl>:

...

Dear all,

As discussed, I suggest the table to be expanded with at least one column „final say” or „stops the buck” or something, that states where the final decision lies. I bet that in most cases we will find that this is the ICANN Board. Which is not a flaw in the system, but -as I am sure you are all aware- just the logic result of the present (common) governance structure of the corporation, whereby board members have a fiduciary duty and ultimately (only) serve the best interests of the corporation.

As long as the best interests of ICANN the corporation and the „public interest” are aligned (or are so in the opinion of the board) all is probably well. If they are not, if the are not in the opinion of the board, or if the board misinterprets the public interests and/or the corporations interests, problems arise.

It surely has not always been the case, but in my opinion the board and CEO have done pretty well over the last years in finding the right balance (or alignment) between corporate and public/community interests. No guarantee that that will remain the case indefinitely however, especially if there’s no longer the NTIA/USG to subtly threaten with corrective measures...

As far as I understand it, we mean by „enhanced accountability” that ultimately, when the *stuff* hits the fan, the public interest will be the decisive interest and NOT the corporation's.

I do not think that can be demanded from the board. I agree that we should consider multiple solutions to this challenge. One of which might be assigning the task and the authority required for it, to an external or semi-external structure, through the bylaws of that corporation. In such a situation, the members of that structure should obviously not be appointed by (the board of) the corporation. But by those representing the public interest.

Cheers,

Roelof Meijer

SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 roelof.meijer@sidn.nl | www.sidn.nl <http://www.sidn.nl/>

On 23-12-14 06:18, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

...

Thanks Samantha,

Just adding a link to the resource for everyone to access easily : DOC version :

https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun

...

tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

PDF version :

https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun

...

tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141 9299658000&api=v2

Mathieu

Le 23/12/2014 02:57, Samantha Eisner a écrit :

...

Hi -

I’ve done a first attempt (which is by no means comprehensive) of our assigned task and uploaded to the wiki. I think we’d benefit from seeing what other detail we’d like in there, so I put this out to start the conversation.

Best,

Sam

On 12/16/14, 1:43 PM, "David W. Maher" <dmaher@pir.org> wrote:

...

I agree David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849

On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

...

Samantha, Colleagues,

That is indeed what I understand from the discussion. You could also add a 3) is it review, redress or check & balance (see Netmundial definition of Accountability).

Best Mathieu

Le 16/12/2014 13:04, Samantha Eisner a écrit : > Colleagues, > > Listening to the discussion, I propose think that one of the new > refined > tasks that we could undertake would be, for each mechanism that we’ve > identified on the inventory, first try to answer the questions of: > > 1) To whom does this mechanism seek to make ICANN accountable; and > 2) For what > > This could be a starting point for parsing through the next wave of > issues > that we are agreeing to take on. > > Best, > > Sam > > On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote: > >> Thanks, Samantha. >> On the subject of contractual sources of accountability, it should >>be >> noted that the proposed withdrawal of NTIA from IANA functions will >> remove >> NTIA as a source of accountability enforcement. >> I propose that the Sub Group look for other contractual sources and >>at >> the >> same time explore the possibility of broadening the scope of >> accountability enforceable by contract. >> For example, the registries and registrars could enter into >>contracts >> with >> ICANN covering the IANA functions in addition to the following: >> 1. ICANN could agree by binding contract not to impose rules on >>third >> parties (by means of policies, accreditation standards, or required >> contract terms) that are not supported by a demonstrated consensus >> among >> affected parties. >> 2. ICANN could agree by binding contract not to impose rules on >>third >> parties (by means of policies, accreditation standards, or required >> contract terms) that do not relate to issues the uniform resolution >>of >> which is necessary to assure sound operation of the domain name >> system. >> 3. ICANN could agree by binding contract not to impose rules on >>third >> parties (by means of policies, accreditation standards, or required >> contract terms) that relate to online content or to online behavior >> that >> does not threaten the sound operation of the domain name system? >> 4. ICANN could agree that any claim that it has not complied with >>the >> previous three obligations may be brought by any adversely affected >> party >> before an independent review panel that can issue decisions that are >> binding on ICANN. >> >> David >> >> >> David W. Maher >> Senior Vice President ­ Law & Policy >> Public Interest Registry >> 312 375 4849 >> >> >> >> >> >> >> On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> >> wrote: >> >>> Hi all - >>> >>> I posted a new version of the document on the wiki page in clean >>>and >>> redline form. The proposed changes include: >>> 1. To address Malcolm Hutty¹s edit regarding contractual sources of >>> accountability, I made a ³contract² heading and also listed >>>Registry >>> and >>> Registrar Contracts under there. >>> 2. To address David¹s inclusion of SSAC recommendations as a source >>> of >>> accountability, I incorporated a heading under Bylaws that >>>accounted >>> for >>> Advisory Committee inputs. (Note that action is pending on ATRT2 >>> recommendations regarding ICANN¹s obligations on considerate of >>> advice >> >from ACs other than the GAC). Because identifying accountability >>in >>> terms >>> of advice did not then seem complete without reference to the >>>policy >>> recommendations upon which that advice is often given, I referenced >>> the >>> policy development/Board consideration of policy recommendations >>>for >>> each >>> of the SOs. >>> 3. Inserted summary listings of all ATRT recommendations (1 and 2) >>> >>> In terms of background documentation, I modified the page to make a >>> clear >>> delineation between the background info and the drafting work >>> ongoing. >>> In >>> line with David¹s concern and Bruce¹s suggestion, I excerpted the >>> presentation I previously circulated, and posted only the part that >>> deals >>> with the inventory effort, so as not to bring all the questions in >>>at >>> this >>> stage. >>> >>> I also included an excerpt to the inventory effort undertaken by >>> ICANN in >>> advance of the first postings on Enhancing ICANN Accountability. >>> >>> Please let me know if you have any questions. >>> >>> Sam >>> >>> >>> >>> On 12/13/14, 4:01 PM, "Bruce Tonkin" >>> <Bruce.Tonkin@melbourneit.com.au> >>> wrote: >>> >>>> Hello Samantha, >>>> >>>> Is it possible to split this presentation from London into its two >>>> components? >>>> >>>> The first few slides list some of the accountability mechanisms >>>> available >>>> within the ICANN structure. The ATRT2 review identified some >>>> improvements to make to these mechanisms. >>>> >>>> The slides from 11-28 are a general presentation about >>>> accountability >>> >from Professor Jan Aart Scholte, School of Global Studies, >>> .University >>>> of >>>> Gothenburg. >>>> >>>> He lists 9 framing questions to consider when looking at >>>> accountability >>>> mechanisms: >>>> >>>> (1) What is accountability? >>>> >>>> - processes whereby an actor answers to other actors for the >>>> impacts on >>>> them of its actions and omissions >>>> >>>> (2) with what components? >>>> >>>> - transparency >>>> >>>> - consultation >>>> >>>> - monitoring and evaluation >>>> >>>> - correction and redress >>>> >>>> >>>> (3) for what purpose? >>>> >>>> - financial review; 'the accounts' >>>> >>>> - performance measurement >>>> >>>> - democratic participation/control >>>> >>>> - moral probity; ecological integrity; peace; etc. >>>> >>>> >>>> (4) Accountability by whom? >>>> >>>> - challenge of pinning down and specifying impact in the context >>>>of >>>> complex polycentric governance >>>> >>>> >>>> (5) for what? >>>> >>>> - actual formal mandate >>>> >>>> - desired mandate (content? spam? digital access?) >>>> >>>> >>>> (6) to whom? >>>> >>>> - 'the public' of significantly affected people (but >>>>metaphysical, >>>> ecological?) >>>> >>>> - 'the public' not unitary, as different people are differently >>>> affected >>>> >>>> - constituencies (divisions within and overlaps between) >>>> >>>> >>>> (7) for whom? >>>> >>>> - myth of a universal 'global community' with same interests and >>>> equal >>>> power >>>> >>>> - skewed accountability on lines of age, caste, class, >>>> (dis)ability, >>>> faith, gender, geography, language, nationality, race, sexuality >>>> >>>> >>>> (8) via what channels? >>>> >>>> - hegemonic veto >>>> >>>> - intergovernmental multilateralism >>>> >>>> - (global) political parties and parliaments >>>> >>>> - multi-stakeholder arrangements >>>> >>>> - civil society deliberation and mobilization >>>> >>>> - judiciary (court, inspection panel, evaluation exercises, >>>> ombudsman) >>>> >>>> - mass media >>>> >>>> >>>> (9) how accountably? >>>> >>>> - 'When you point a finger, you need to do it with a clean hand' >>>> >>>> - transparency, consultation, monitoring and redress of those >>>>who >>>> (claim to) speak for affected publics >>>> >>>> Regards, >>>> Bruce Tonkin > _______________________________________________ > Ccwg-accountability1 mailing list > Ccwg-accountability1@icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability1 -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

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-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

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On 25-Dec-14 20:13, Bruce Tonkin wrote:

The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors. Bruce,

How do you see the rest of the community figuring into the determination of the Public Interest especially if it is subject to the culturally based subjectivity of the Board members? avri

Which is exactly why, in my opinion, there is no such thing as (a single, global) public interest… Cheers, Roelof From: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Date: vrijdag 26 december 2014 05:45 To: "ccwg-accountability1@icann.org<mailto:ccwg-accountability1@icann.org>" <ccwg-accountability1@icann.org<mailto:ccwg-accountability1@icann.org>> Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft On 25-Dec-14 20:13, Bruce Tonkin wrote: The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors. Bruce, How do you see the rest of the community figuring into the determination of the Public Interest especially if it is subject to the culturally based subjectivity of the Board members? avri

Bruce: Thank you for your contribution to the dialogue. This email addresses two issues, the first of which is the propriety of the Board as a whole and individual members weighing in on the discussion taking place within stewardship and accountability work streams. Noting that in the "ICANN Board Comments on Cross Community Working Group (CWG) Draft Transition Proposal for Naming Related Functions" http://forum.icann.org/lists/comments-cwg-naming-transition-01dec14/pdf20pTv... states "We have been conscious of two guideposts during this process: to remain fairly silent so as not to attempt or seem to be attempting to inappropriately influence the process, and, at the same time to share our thinking with the community." That appears to be as reasonable a description as any of the proper bounds of collective Board and individual member input, although I would think that the community would benefit from the Board's actual experience as well as its thinking. I have no doubt that if the Board's participation is ever perceived as attempting to inappropriately influence the process the community participants will have no hesitation in pointing that out. Of more substantive concern are your comments that " the most difficult decisions for Board directors have been on matters in the public interest" and that " The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors". The Board's October 16th Resolution, "Board Consideration of Recommendations from the Cross Community Working Group on Enhancing ICANN Accountability" https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d states " 2.If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board." This means that the final work product of this CCWG will, by your own evaluation, be evaluated -- and significant provisions possibly rejected -- based upon a subjective standard subject to the individual cultural backgrounds and experiences of Board members. That is concerning, although hopefully the final recommendations will be so broadly supported within the community that Board cherry-picking will be limited or nonexistent. What is most concerning is that the community has little or any information by which to judge how the Board has reached difficult decisions on public interest matters in the past. As you note in regard to the .XXX decision, "Several directors spent considerable time preparing their own personal statements on that matter that were delivered in the public forum." Similarly, I remember a vigorous public debate and statements when the Board voted to let the new gTLD program proceed and accept applications. But we no longer have public Board meetings, and the materials released pertaining to Board meetings are quite opaque regarding how decisions are reached or whether dissents took place, and of course we have no transcripts of Board meetings or access to other relevant communications related to Board decision-making. I do note that the October 16th resolution further states that a rationale will be provided for any Board rejection of CCWG recommendations, and a further dialogue initiated, but that is still inferior to being able to witness or at least read the full Board debate on such matters. It has been widely recognized that transparency is a fundamental requirement for accountability, yet the transparency of the Board's decision-making process is greatly lacking at present. I know that view prevails within the Commercial Stakeholders Group, and my perception is that other parts of the community share it as well. It is my hope that this CCWG process will lead to much greater transparency in that area and that the Board will recognize that such transparency is very much in the global public interest. With best regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC   "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: ccwg-accountability1-bounces@icann.org [mailto:ccwg-accountability1-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Thursday, December 25, 2014 8:13 PM To: ccwg-accountability1@icann.org Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft Hello Roelof,

...

As long as the best interests of ICANN the corporation and the „public interest” are aligned (or are so in the opinion of the board) all is probably well. If they are not, if the are not in the opinion of the board, or if the board misinterprets the public interests and/or the corporations interests, problems arise.

Just reflecting on your statement above. I have been on the ICANN Board now as a director for approximately 7 years. In that time the most difficult decisions for Board directors have been on matters in the public interest. The decisions related to the "corporation", such as appointing auditors, CEOs etc have usually been unanimous. The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors. For example after the decision of the Independent Review panel on .xxx, the easiest thing for the Board to do would have been to just endorse the decision. However individual Board directors still spent considerable time considering the issue from a public interest perspective. The final decision was not unanimous, yet each of the individual Board directors felt they were making a decision in the public interest. Several directors spent considerable time preparing their own personal statements on that matter that were delivered in the public forum. Ultimately one of the strengths of the Board is that it is quite big - (16 voting members) and also quite diverse (people from 5 geographic regions with a range of cultural backgrounds and a range of life experience). The exact cultural composition of the Board varies from year to year, but on matters of public interest there has always been a great diversity of viewpoints. For me it has always been a privilege to spend time with such a group of people that are devoted to the public interest. Regards, Bruce Tonkin _______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5577 / Virus Database: 4253/8773 - Release Date: 12/20/14

Dear All, Please find below/ attached my comment as participants to the ICANN comments on CWG activities I have converted the PDF in word but some times it did not properly converted . I am sorry for that Kavouss 2014-12-26 10:00 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:

Dear All, I support Mathieu . Moreover, there is now a relase from Board for public comments on the activities of CWG( NOT CCWG) That document has elements which seems highly criticising the works being done by CWG. I strongly recommand to put that document for review by all 4 working groups. Now a comment to Thomas and Mathieu I have reviewed that Board doc. I will send you my comments However, after the establishment of CCWG, hard works of you two dear colleagues Hard works of WG chairs Hard works of contributing persons MORE THAN 10 SESSIONS iF FINALLY board would have a VETO on that entire work I suggest we stop any activity on CCWG There is senseless and counterproductive ,if we spent hours and hours to discuss, participation in Calls at 0100 or 06,00 UTC and other calls , reviewing many background doc. watching all ICANN ALLERT preparing documents , discussing them, revising them, correcting them and at the end Board sasy NO THIS IS AGAINST PUBLIC INTEREST. That working method is totally unacceptable. Pls put the issue of Board Veto to the output of CCWG at our next meetings agenda. Kavouss

2014-12-26 9:36 GMT+01:00 Phil Corwin <psc@vlaw-dc.com>:

...

Bruce:

Thank you for your contribution to the dialogue.

This email addresses two issues, the first of which is the propriety of the Board as a whole and individual members weighing in on the discussion taking place within stewardship and accountability work streams. Noting that in the "ICANN Board Comments on Cross Community Working Group (CWG) Draft Transition Proposal for Naming Related Functions" http://forum.icann.org/lists/comments-cwg-naming-transition-01dec14/pdf20pTv... states "We have been conscious of two guideposts during this process: to remain fairly silent so as not to attempt or seem to be attempting to inappropriately influence the process, and, at the same time to share our thinking with the community." That appears to be as reasonable a description as any of the proper bounds of collective Board and individual member input, although I would think that the community would benefit from the Board's actual experience as well as its thinking. I have no doubt that if the Board's participation is ever perceived as attempting to inappropriately influence the process the community participants will have no hesitation in pointing that out.

Of more substantive concern are your comments that " the most difficult decisions for Board directors have been on matters in the public interest" and that " The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors". The Board's October 16th Resolution, "Board Consideration of Recommendations from the Cross Community Working Group on Enhancing ICANN Accountability" https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d states " 2.If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board." This means that the final work product of this CCWG will, by your own evaluation, be evaluated -- and significant provisions possibly rejected -- based upon a subjective standard subject to the individual cultural backgrounds and experiences of Board members. That is concerning, although hopefully the final recommendations will be so broadly supported within the community that Board cherry-picking will be limited or nonexistent.

What is most concerning is that the community has little or any information by which to judge how the Board has reached difficult decisions on public interest matters in the past. As you note in regard to the .XXX decision, "Several directors spent considerable time preparing their own personal statements on that matter that were delivered in the public forum." Similarly, I remember a vigorous public debate and statements when the Board voted to let the new gTLD program proceed and accept applications. But we no longer have public Board meetings, and the materials released pertaining to Board meetings are quite opaque regarding how decisions are reached or whether dissents took place, and of course we have no transcripts of Board meetings or access to other relevant communications related to Board decision-making. I do note that the October 16th resolution further states that a rationale will be provided for any Board rejection of CCWG recommendations, and a further dialogue initiated, but that is still inferior to being able to witness or at least read the full Board debate on such matters.

It has been widely recognized that transparency is a fundamental requirement for accountability, yet the transparency of the Board's decision-making process is greatly lacking at present. I know that view prevails within the Commercial Stakeholders Group, and my perception is that other parts of the community share it as well. It is my hope that this CCWG process will lead to much greater transparency in that area and that the Board will recognize that such transparency is very much in the global public interest.

With best regards, Philip

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

-----Original Message----- From: ccwg-accountability1-bounces@icann.org [mailto: ccwg-accountability1-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Thursday, December 25, 2014 8:13 PM To: ccwg-accountability1@icann.org Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft

Hello Roelof,

...

...

As long as the best interests of ICANN the corporation and the „public interest” are aligned (or are so in the opinion of the board) all is probably well. If they are not, if the are not in the opinion of the board, or if the board misinterprets the public interests and/or the corporations interests, problems arise.

Just reflecting on your statement above. I have been on the ICANN Board now as a director for approximately 7 years. In that time the most difficult decisions for Board directors have been on matters in the public interest. The decisions related to the "corporation", such as appointing auditors, CEOs etc have usually been unanimous.

The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors.

For example after the decision of the Independent Review panel on .xxx, the easiest thing for the Board to do would have been to just endorse the decision. However individual Board directors still spent considerable time considering the issue from a public interest perspective. The final decision was not unanimous, yet each of the individual Board directors felt they were making a decision in the public interest. Several directors spent considerable time preparing their own personal statements on that matter that were delivered in the public forum.

Ultimately one of the strengths of the Board is that it is quite big - (16 voting members) and also quite diverse (people from 5 geographic regions with a range of cultural backgrounds and a range of life experience). The exact cultural composition of the Board varies from year to year, but on matters of public interest there has always been a great diversity of viewpoints.

For me it has always been a privilege to spend time with such a group of people that are devoted to the public interest.

Regards, Bruce Tonkin

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Thanks Bruce, and glad you found the feedback useful. And thanks as well for referencing the minutes of the 10/28 Board meeting. That is more detail than I have seen in the past. But the community would still benefit from knowing more about the views expressed by Board members during the discussion, and why Gonzalo Navarro and Mike Silber ultimately voted against the Resolutions. I agree with your view that " It would certainly be helpful if the CCWG on accountability did articulate what they would like to see in terms of transparency from Board meetings.", and I intend to make that a focus of my participation over coming months. I recognize that certain subjects may not be appropriate for full revelation, and that redaction of the transcript or a simple notation of an omitted portion of the discussion may be acceptable for some subjects. More challenging will be how to deal with the fact, as you describe it, " that in many cases significant discussion on a controversial topic occurs over several months - with much of the dialogue occurring in Board workshops...In many ways the Board functions like a GNSO or IETF working group - with numerous discussions, before a topic reaches decision. The current chair - Steve Crocker - tries as much as possible to ensure that a Board resolution has matured to the point where it can be approved unanimously." That seems like an efficient way to operate, but it results in a situation where " the community sees the end product, and not the intermediate steps". We don't want to inhibit candid Board discussion and proper extended consideration and deliberation on some matters. I suspect that there is a middle ground between present Board disclosure practice and a revision that satisfies the community's need for greater understanding of the basis for Board decisions without disrupting or unduly circumscribing candid Board discussion. Let's see what the community can come up with over the course of this CCWG in regard to a procedural reforms that can enhance the transparency base for accountable decision-making. Best regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC   "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: ccwg-accountability1-bounces@icann.org [mailto:ccwg-accountability1-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Friday, December 26, 2014 4:01 AM To: ccwg-accountability1@icann.org Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft Hello Phil,

...

hopefully the final recommendations will be so broadly supported within the community that Board cherry-picking will be limited or nonexistent.

Yes - that is the Board's hope also.

...

What is most concerning is that the community has little or any information by which to judge how the Board has reached difficult decisions on public interest matters in the past. As you note in regard to the .XXX decision, "Several directors spent considerable time preparing their own personal statements on that matter that were delivered in the public forum." Similarly, I remember a vigorous public debate and statements when the Board voted to let the new gTLD program proceed and accept applications. But we no longer have public Board meetings, and the materials released pertaining to Board meetings are quite opaque regarding how decisions are reached or whether dissents took place, and of course we have no transcripts of Board meetings or access to other relevant communications related to Board decision-making. I do note that the October 16th resolution further states that a rationale will be provided for any Board rejection of CCWG recommendations, and a further dialo gue initiated, but that is still inferior to being able to witness or at least read the full Board debate on such matters.

...

It has been widely recognized that transparency is a fundamental requirement for accountability, yet the transparency of the Board's decision-making process is greatly lacking at present. I know that view prevails within the Commercial Stakeholders Group, and my perception is that other parts of the community share it as well. It is my hope that this CCWG process will lead to much greater transparency in that area and that the Board will recognize that such transparency is very much in the global public interest.

That is good feedback. I was at one time the Chair of the DNSO and then later chair of the GNSO. Over the time I was chair we put in place transparency steps including making recordings of the meetings available publicly and also transcripts. In my time there was only about two people in the community that ever listed to the audio recordings - but in principle they were available to everyone. I personally support that approach in principle, but it is not yet a Board view. I just reviewed the minutes of the Board meeting of 28 Oct 2014: https://www.icann.org/resources/board-material/minutes-2014-10-28-en The minutes state with respect to moving the meeting location in Feb 2015: " The Board engaged in an intense conversation on the topic, with some Board members noting their personal preference that the meeting proceed in Marrakech as scheduled, given that it is difficult to know what the situation will be in Marrakech in February. However, even with a personal preference to keep the meeting location, there are risks to proceeding with that decision that may require the meeting to be postponed." The minutes also note that the decision was not unanimous: " Twelve Board members voted in favor of Resolutions 2014.10.28.02, 2014.10.28.03, 2014.10.28.04, 2014.10.28.05, 2014.10.28.06 and 2014.10.28.07. Gonzalo Navarro and Mike Silber were opposed to the Resolutions. Markus Kummer abstained from voting on the resolutions. Kuo-Wei Wu was unavailable to vote. The Resolutions carried." In that meeting I recall that nearly every Board member spoke on the topic - some in favour of moving the location, and some in favour of keeping it in the original location. There were well articulated views that could have been made public in my own personal view. It would certainly be helpful if the CCWG on accountability did articulate what they would like to see in terms of transparency from Board meetings. Note however - that in many cases significant discussion on a controversial topic occurs over several months - with much of the dialogue occurring in Board workshops (for example the Board holds at least two face-to-face workshops during the year, and also meets on the weekend prior to the ICNAN public meeting week, as well as during the week in workshop format). In many ways the Board functions like a GNSO or IETF working group - with numerous discussions, before a topic reaches decision. The current chair - Steve Crocker - tries as much as possible to ensure that a Board resolution has matured to the point where it can be approved unanimously. I agree however that the community sees the end product, and not the intermediate steps. Regards, Bruce Tonkin _______________________________________________ Ccwg-accountability1 mailing list Ccwg-accountability1@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability1 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5577 / Virus Database: 4253/8773 - Release Date: 12/20/14

Thank you posting this draft document to begin to inventory ICANN's accountability mechanisms. I've got a few comments and suggestions for edits to the inventory list going forward: 1. I think some of the mechanisms that are labeled "redress" are actually "review". See the definitions below, but basically, since mechanisms like ReconRequest and IRP and the Ombudsman are only making recommendations to the board to change its mind on a decision, and have no authority to set aside a decision on their own, they more appropriately categorized as "review" mechanisms (and not redress). 2. There isn't any mention of Transparency in the inventory of accountability mechanisms and since we all know we can't have accountability without transparency we need to include the mechanisms in place to provide transparency (like DIDP and perhaps other policies) at ICANN. For example transparency mechanisms regarding all key Board, GNSO, GAC, and ALAC decisions should be included. 3. We should also include a column to describe through which specific mechanism are these accountability tools utilized (for example GNSO holds board accountable through elections of board members; a community member could file a complaint with the Ombudsman's Office or request the California Attorney General investigate ICANN by not following its bylaws). We can then look at things like "standard of review", or "time constraints" in process, and "possible barriers or costs" to accessing or being able to make meaningful use of the specific mechanism and trace out where we might have trends or places needing strengthening. 4. We should include the Cooperative Engagement Process (CEP) which precedes the IRP in this list of accountability mechanisms. 5. Exceptions need to be taken into account for mechanisms like lawsuits where parties are required to waive their rights to file a lawsuit against ICANN (for example new gtld applicants) if there is a dispute so the accountability mechanism isn't available to them. 6. Also the final mechanism listed wrt to the Registry and Registrar Agreements could be described as filing a complaint with ICANN's Compliance Dept. This is also "review" and not "redress" since one is only asking ICANN's compliance dept to decide differently on a compliance dispute. Thanks, Robin Is it a "review" or "redress" mechanism? Google: re·dress rəˈdres/ verb 1. remedy or set right (an undesirable or unfair situation). "the power to redress the grievances of our citizens" synonyms: rectify, correct, right, put to rights, compensate for, amend, remedy,make good, resolve, settle More noun 1. remedy or compensation for a wrong or grievance. "those seeking redress for an infringement of public law rights" synonyms: compensation, reparation, restitution, recompense, repayment,indemnity, indemnification, retribution, satisfaction; justice "your best hope of redress" re·view rəˈvyo͞o/ noun 1. a formal assessment or examination of something with the possibility or intention of instituting change if necessary. "a comprehensive review of defense policy" synonyms: analysis, evaluation, assessment, appraisal, examination,investigation, inquiry, probe, inspection, study "the council undertook a review" verb 1. examine or assess (something) formally with the possibility or intention of instituting change if necessary. "the company's safety procedures are being reviewed" synonyms: remember, recall, reflect on, think through, go over in one's mind, look back on "he reviewed the day" On Dec 22, 2014, at 9:18 PM, Mathieu Weill wrote:

Thanks Samantha,

Just adding a link to the resource for everyone to access easily : DOC version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta... PDF version : https://community.icann.org/download/attachments/51414329/WS1%20-%20Accounta...

Mathieu

Le 23/12/2014 02:57, Samantha Eisner a écrit :

...

Hi -

I’ve done a first attempt (which is by no means comprehensive) of our assigned task and uploaded to the wiki. I think we’d benefit from seeing what other detail we’d like in there, so I put this out to start the conversation.

Best,

Sam

On 12/16/14, 1:43 PM, "David W. Maher" <dmaher@pir.org> wrote:

...

I agree David David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849

On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:

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Samantha, Colleagues,

That is indeed what I understand from the discussion. You could also add a 3) is it review, redress or check & balance (see Netmundial definition of Accountability).

Best Mathieu

Le 16/12/2014 13:04, Samantha Eisner a écrit :

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Colleagues,

Listening to the discussion, I propose think that one of the new refined tasks that we could undertake would be, for each mechanism that we’ve identified on the inventory, first try to answer the questions of:

1) To whom does this mechanism seek to make ICANN accountable; and 2) For what

This could be a starting point for parsing through the next wave of issues that we are agreeing to take on.

Best,

Sam

On 12/15/14, 9:23 AM, "David W. Maher" <dmaher@pir.org> wrote:

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Thanks, Samantha. On the subject of contractual sources of accountability, it should be noted that the proposed withdrawal of NTIA from IANA functions will remove NTIA as a source of accountability enforcement. I propose that the Sub Group look for other contractual sources and at the same time explore the possibility of broadening the scope of accountability enforceable by contract. For example, the registries and registrars could enter into contracts with ICANN covering the IANA functions in addition to the following: 1. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that are not supported by a demonstrated consensus among affected parties. 2. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that do not relate to issues the uniform resolution of which is necessary to assure sound operation of the domain name system. 3. ICANN could agree by binding contract not to impose rules on third parties (by means of policies, accreditation standards, or required contract terms) that relate to online content or to online behavior that does not threaten the sound operation of the domain name system? 4. ICANN could agree that any claim that it has not complied with the previous three obligations may be brought by any adversely affected party before an independent review panel that can issue decisions that are binding on ICANN.

David

David W. Maher Senior Vice President ­ Law & Policy Public Interest Registry 312 375 4849

On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner@icann.org> wrote:

> Hi all - > > I posted a new version of the document on the wiki page in clean and > redline form. The proposed changes include: > 1. To address Malcolm Hutty¹s edit regarding contractual sources of > accountability, I made a ³contract² heading and also listed Registry > and > Registrar Contracts under there. > 2. To address David¹s inclusion of SSAC recommendations as a source > of > accountability, I incorporated a heading under Bylaws that accounted > for > Advisory Committee inputs. (Note that action is pending on ATRT2 > recommendations regarding ICANN¹s obligations on considerate of > advice >from ACs other than the GAC). Because identifying accountability in > terms > of advice did not then seem complete without reference to the policy > recommendations upon which that advice is often given, I referenced > the > policy development/Board consideration of policy recommendations for > each > of the SOs. > 3. Inserted summary listings of all ATRT recommendations (1 and 2) > > In terms of background documentation, I modified the page to make a > clear > delineation between the background info and the drafting work > ongoing. > In > line with David¹s concern and Bruce¹s suggestion, I excerpted the > presentation I previously circulated, and posted only the part that > deals > with the inventory effort, so as not to bring all the questions in at > this > stage. > > I also included an excerpt to the inventory effort undertaken by > ICANN in > advance of the first postings on Enhancing ICANN Accountability. > > Please let me know if you have any questions. > > Sam > > > > On 12/13/14, 4:01 PM, "Bruce Tonkin" > <Bruce.Tonkin@melbourneit.com.au> > wrote: > >> Hello Samantha, >> >> Is it possible to split this presentation from London into its two >> components? >> >> The first few slides list some of the accountability mechanisms >> available >> within the ICANN structure. The ATRT2 review identified some >> improvements to make to these mechanisms. >> >> The slides from 11-28 are a general presentation about >> accountability > >from Professor Jan Aart Scholte, School of Global Studies, > .University >> of >> Gothenburg. >> >> He lists 9 framing questions to consider when looking at >> accountability >> mechanisms: >> >> (1) What is accountability? >> >> - processes whereby an actor answers to other actors for the >> impacts on >> them of its actions and omissions >> >> (2) with what components? >> >> - transparency >> >> - consultation >> >> - monitoring and evaluation >> >> - correction and redress >> >> >> (3) for what purpose? >> >> - financial review; 'the accounts' >> >> - performance measurement >> >> - democratic participation/control >> >> - moral probity; ecological integrity; peace; etc. >> >> >> (4) Accountability by whom? >> >> - challenge of pinning down and specifying impact in the context of >> complex polycentric governance >> >> >> (5) for what? >> >> - actual formal mandate >> >> - desired mandate (content? spam? digital access?) >> >> >> (6) to whom? >> >> - 'the public' of significantly affected people (but metaphysical, >> ecological?) >> >> - 'the public' not unitary, as different people are differently >> affected >> >> - constituencies (divisions within and overlaps between) >> >> >> (7) for whom? >> >> - myth of a universal 'global community' with same interests and >> equal >> power >> >> - skewed accountability on lines of age, caste, class, >> (dis)ability, >> faith, gender, geography, language, nationality, race, sexuality >> >> >> (8) via what channels? >> >> - hegemonic veto >> >> - intergovernmental multilateralism >> >> - (global) political parties and parliaments >> >> - multi-stakeholder arrangements >> >> - civil society deliberation and mobilization >> >> - judiciary (court, inspection panel, evaluation exercises, >> ombudsman) >> >> - mass media >> >> >> (9) how accountably? >> >> - 'When you point a finger, you need to do it with a clean hand' >> >> - transparency, consultation, monitoring and redress of those who >> (claim to) speak for affected publics >> >> Regards, >> Bruce Tonkin

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-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

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