March 2015 - Ccwg-accountability4

ST WP bfast meeting
by Cheryl Langdon-Orr March 23, 2015

March 23, 2015

We have a room at the far end of the restaurant 😀

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Additional Stress Test for consideration
by Edward Morris March 22, 2015

March 22, 2015

Hi everybody, During a call today regarding ICANN’s transition and accountability, David Post called for development of a stress test we don’t currently have. I’d like to present it to the sub-group for consideration with the recommendation we act positively on his recommendation. This would belong in Stress Test Category Four: Failure of Accountability. The problem is one some of us believe we’ve encountered with increasing frequency at ICANN: staff substituting their policy preferences for the policy developed through proper processes. Staff could do this intentionally or unintentionally. The result is the same. In this scenario a policy is properly developed (most often through a PDP) but when implementing the policy staff creates processes that effectively change or negate the policy developed. This is a major accountability problem and we don’t seem to be testing to ensure we have proper accountability processes in place to deal with it. I’d suggest we do so. I’m happy to help with this as needed. Thanks for considering. Edward Morris

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Draft version 8: Applying Stress Tests to proposed CCWG accountability mechanisms
by Steve DelBianco March 22, 2015

March 22, 2015

With the conclusion of recent Stress Test Work Party (WP-ST) teleconference meetings, we have now completed at least an initial read through of all 25 Stress Tests <https://community.icann.org/display/acctcrosscomm/ST-WP+--+Stress+Tests+Wor…> (ST's) established at the Frankfurt F2F Meeting. While we cannot apply stress tests definitively until we have a defined mechanism/structure to test, we’ve done our best with the proposed mechanisms at this point in the process. The edits and modifications made by WP-ST are now included in the attached v8 document <Draft v8, in both doc and PDF>. We have also attached a redline showing changes between version 7 and version 8. During the upcoming Istanbul Meeting it is our intention to discuss Stress Tests 12 & 18 during the formal Agenda with the CWG . Your review of the current text in advance would be appreciated. Further on Monday morning at 0730 the WP-ST will be having an informal breakfast meeting (in Global) where we plan to discuss (at least) ST 21 in great detail. Whilst all interested CCWG Members and Participants in Istanbul are welcome to join us, it would be appreciated if you could let Grace know if you intend to join so adequate table space can be booked. Regards, Cheryl and Steve, for the Stress Test Work Party

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Re: [ST-WP] nearly complete draft of Applying Stress Tests
by Samantha Eisner March 20, 2015

March 20, 2015

Hi everyone, In advance of our call later, here are some comments, questions and proposed edits. Best, Sam From: Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, March 6, 2015 at 8:19 PM To: Cheryl Langdon-Orr <langdonorr(a)gmail.com<mailto:langdonorr@gmail.com>>, "ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org>" <ccwg-accountability4(a)icann.org<mailto:ccwg-accountability4@icann.org>> Cc: ACCT-Staff <acct-staff(a)icann.org<mailto:acct-staff@icann.org>> Subject: [ST-WP] nearly complete draft of Applying Stress Tests Cheryl and team - the attached is a nearly-complete draft of how we might apply those 25 Stress Tests<https://community.icann.org/display/acctcrosscomm/ST-WP+--+Stress+Tests+Wor…> to what the CWG and CCWG are presently considering. As we've said, you can't apply stress tests definitively until you have a defined mechanism/structure to test. Nonetheless, we'll do our best with the proposed mechanisms at this point. Please review over the weekend and provide edits. We can discuss on our call Wednesday 11-March at 11:00 UTC. Regards, Steve - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206

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Invitation: ST-WP Breakfast @ Mon 2015-03-23 05:30 - 06:30 (Omadhina)
by directors＠omadhina.net March 18, 2015

March 18, 2015

You have been invited to the following event. Title: ST-WP Breakfast Exact venue to be determined by CLO When: Mon 2015-03-23 05:30 – 06:30 London Where: Hilton İstanbul Bomonti Hotel & Conference Center, Silahşör Cd No:42, 34381 Şişli/İstanbul, Turkey Calendar: Omadhina Who: * directors(a)omadhina.net - organizer * Eberhard Lisse - creator * ccwg-accountability4(a)icann.org Event details: https://www.google.com/calendar/event?action=VIEW&eid=ZWszcTEyb2hqaHRwZ2Jha… Invitation from Google Calendar: https://www.google.com/calendar/ You are receiving this courtesy email at the account ccwg-accountability4(a)icann.org because you are an attendee of this event. To stop receiving future updates for this event, decline this event. Alternatively you can sign up for a Google account at https://www.google.com/calendar/ and control your notification settings for your entire calendar.

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Fwd: Re: Stress Test #21
by Dr Eberhard Lisse March 18, 2015

March 18, 2015

All, as we are discussing on the call, here is my work in progress. el On 2015-03-18 11:20, Dr Eberhard Lisse wrote: > Steve, Cheryl, > > have a look at my work-in-progress of a position-paper, ie trying > to look at this comprehensively. > > I think the scenarios are ok, but we need to look at Proposed > Measures, and, we eventually need to distill this into a table > fitting on one page, of course :-)-O > > So perhaps it's ok to circulate it to the ST-WP as is and then > finalize it in IST, but we can discuss this today on the call. > > el > > On 2015-03-17 15:48, Dr Eberhard Lisse wrote: >> Steve, >> >> you didn't receive, because I didn't send them yet. >> >> Working on it. >> >> el >> >> >> On 2015-03-17 15:42, Steve DelBianco wrote: >>> Eberhard — didn’t receive your edits on this particular >>> stress test (see below). If you get it to me tonight I can >>> paste into the PDF for discussion on our upcoming stress test >>> call. I realize you wrote back on 8-March indicating we had >>> written ST#21 incorrectly, and we want your help to make it >>> right. >>> >>> —Steve >> [...] >> > -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Doodle Poll for CCWG Accountability Stress Tests SubTeam
by Brenda Brewer March 12, 2015

March 12, 2015

Hello Everyone! The CCWG Accountability Stress Tests SubTeam is planning a meeting for next week 16, 17, 18 March. Please see the Doodle Poll link: http://doodle.com/ry46rnpyftk4cbdg and select the best time(s) available for you. Remember to change the time zone to view time zone for you personally. Thank you for completing the poll and as soon as possible I will proceed to book the call based on the poll results. Kind regards, Brenda Brewer ICANN Staff

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Re: [ST-WP] [CCWG-ACCT] RES: Additional Stress Tests to discuss
by "Carlos Raúl G." March 8, 2015

March 8, 2015

Dear all! As far as I remember this question has been around for years and at least one serious legal study was commissioned to compare the present jurisdiction with "good" alternatives. And, again if I remember well, less than a handful alternatives where considered attractive enough. Just one or two European countries met the conditions. Maybe we should go back and read that document, because there may not be many alternatives out there. Best regards Carlos Raúl Gutiérrez +506 8837 7176 (New Number) Enviado desde mi iPhone > El mar 4, 2015, a las 16:28, Phil Corwin <psc(a)vlaw-dc.com> escribió: > > Pedro: > > This is a very important point. I was in the room at the Senate Commerce hearing last week, and also at another event at the US Chamber of Commerce two days later. At both events Fadi stressed that ICANN would remain subject to US “jurisdiction" post-transition, not just maintain its nominal HQ in the US. As you correctly point out, there is a big “difference between "headquarter location" and "legal presence/legal jurisdiction". > > Choice of legal jurisdiction is a very important point for multiple reasons, among them: > · Stable and predictable legal regime for contracted parties. As all of ICANN’s authority vis-à-vis registries and registrars is based on its contracts with them, reliable and predictable contract enforcement is a key consideration. The US is generally regarded as having one of the best legal systems in the world. > · Design of both the IANA and ICANN accountability measures. Both the CWG and the CCWG are going to engage independent legal counsel to advise them on the design of accountability measures within the context of California public benefits corporation law. If the legal context changes those accountability measures may not fit properly within it; they may become less effective or even unworkable. > · Security concerns. As a US corporation, ICANN is forbidden by OFAC regulations form engaging in any transactions with entities classified as criminal or terrorist. This consideration is particularly potent for the Administration and Congress. > > As to your point that “The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest.” , that is not necessarily foreclosed, at some future date, depending on what mechanisms are provided for Bylaws amendments. > > But for the immediate future those engaged in this transition exercise should have some idea whether ICANN’s continued legal existence as a non-profit California corporation is acceptable to other nations or whether it will become the new “irritant” (as described by Secretary Strickling) that replaces the IANA counterparty status as cause for complaint and basis for calls for further alterations in its structure and status. > > This is central to the issue of whether the transition we are designing will be stable for the foreseeable future or will just be a short-term transitional stage from which new initiatives for change are launched not long after the ink dries. > > 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: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Pedro Ivo Ferraz da Silva > Sent: Wednesday, March 04, 2015 4:55 PM > To: 'Steve DelBianco'; Accountability Cross Community > Cc: ACCT-Staff; ccwg-accountability4(a)icann.org > Subject: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss > > Dear Steve, > > Thank you very much for the update on the Stress Tests. > > With respect to ST #15, it is very valuable, but I think we should be very cautious about proposed measures. > > The following option makes sense and should be further debated: " If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision". > > However, we anticipate objections to the alternative solution below: > > "One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party." > > Paragraph 8 of the AoC requires US legal presence most probably due to the present scenario where the US government (i.e.NTIA) is the steward of the IANA functions. Once that link is no longer there, and especially because that stewardship is being inherited by the global multistakeholder community (stressing the word "global") a legal presence in the US (or in any other specific country) should not be etched in stone. The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest. > > During yesterday's call, some colleagues mentioned ICANN CEO's Testimony in the American Senate last week. What he stated was literally: " Further, ICANN has its global headquarters in the United States, and there are no plans for that to change". Although such a decision/affirmation may be debatable, it is important, once again, to stress the difference between "headquarter location" and "legal presence/legal jurisdiction". Under e.g. an international jurisdiction, an entity could potentially be headquartered anywhere. > > Regards, > > Sec. Pedro Ivo Ferraz da Silva > Division of Information Society > Ministry of External Relations - brazil > T: + 55 61 2030-6609 > > > -----Mensagem original----- > De: ccwg-accountability4-bounces(a)icann.org [mailto:ccwg-accountability4-bounces@icann.org] Em nome de Steve DelBianco Enviada em: segunda-feira, 2 de março de 2015 23:36 > Para: Accountability Cross Community > Cc: ACCT-Staff; ccwg-accountability4(a)icann.org > Assunto: [ST-WP] [CCWG-ACCT] Additional Stress Tests to discuss > > For tomorrow’s call, we applied 4 more of our stress tests against the draft package of proposed accountability measures. > > Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the attached draft document. > > Stress Test: > > #1. Change authority for the IANA Root Zone ceases to function, in part or in whole. > #2. Delegation authority for the IANA Root Zone ceases to function, in part or in whole. > > > Consequence: interference with existing policy relating to IANA Root Zone and/or prejudice to the security and stability of one or several TLDs. > > > Existing Accountability Measures: > > Under the present IANA contract, NTIA can revoke ICANN’s authority to perform IANA functions and re-assign to different entity/entities. > > After NTIA relinquishes the IANA contract, this measure will no longer be available. > > > Proposed Accountability Measures: > > The CWG planning the IANA stewardship transition might design mechanisms and structures that enable separation, such that the IANA functions could be readily revoked and re-assigned. > > To manage the revocation of IANA functions, the CWG might also propose an emergency backup provider and procedures, pending re-assignment of the IANA functions. > > > Preliminary Conclusions: > > This threat is directly related to the transition of IANA stewardship > > Existing measures would be inadequate after NTIA terminates the IANA contract. > > At this point, CWG’s recommendations are still in development. > > ——————————————————— > > Stress Test: > > #24. An incoming Chief Executive institutes a “strategic review” that arrives at a new, extended mission for ICANN. The Board, having just hired the new CEO, approves the new mission and strategy without community consensus. > > > Consequence: Community ceases to see ICANN as the community’s own mechanism for discharging limited technical functions, and views ICANN as an independent, sui generis entity with its own agenda, not necessarily supported by the community. Ultimately, community questions why ICANN’s original functions should remain controlled by a body that has acquired a much broader and less widely supported mission. > > > Existing Accountability Measures: > > As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to expand scope too broadly. > > The Community has some input in ICANN budgeting and Strat Plan, and could register objections to plans and spending on extending ICANN’s mission. > > California’s Attorney General has jurisdiction over non-profit entities acting outside Bylaws or Articles of Incorporation. > > > Proposed Accountability Measures: > > One proposed measure is empowering the community to veto ICANN’s proposed annual budget. This measure could block a proposal by ICANN to increase its expenditure on extending its mission beyond what the community supported. > > If the ICANN board voted to approve the CEO’s plans, one proposed measure would give the community standing to veto a board decision. > > Another proposed measure is empowering the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] > > > Preliminary Conclusions: > > This threat is directly related to the transition of IANA stewardship > > Existing measures would be inadequate after NTIA terminates the IANA contract. > > Proposed measures in combination are adequate. > > ——————————————————— > > > Stress Test: > > #15. ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions. > > Consequence: affected parties could be prevented from seeking legal redress for commissions or omissions by ICANN. > > > Existing Accountability Measures: > > As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to move in order to avoid legal jurisdiction. > > Paragraph 8 of the AoC requires ICANN to remain headquartered in the US, but the AoC can be terminated by ICANN at any time. As long as NTIA controls the IANA contract, ICANN feels pressure to maintain the AoC. > > > Proposed Accountability Measures: > > One proposed measure is to give the community standing to veto a board decision. If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision. > > One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party. > > If ICANN’s board proposed to amend the AoC provisions added to the bylaws, another proposed measure would empower the community to veto that proposed bylaws change. > > > Preliminary Conclusions: > > This threat is directly related to the transition of IANA stewardship > > Existing measures would be inadequate after NTIA terminates the IANA contract. > > Proposed measures improve upon existing measures, and may be adequate. > > > > _______________________________________________ > Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > ----- > No virus found in this message. > Checked by AVG - www.avg.com > Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

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nearly complete draft of Applying Stress Tests
by Steve DelBianco March 7, 2015

March 7, 2015

Cheryl and team — the attached is a nearly-complete draft of how we might apply those 25 Stress Tests<https://community.icann.org/display/acctcrosscomm/ST-WP+--+Stress+Tests+Wor…> to what the CWG and CCWG are presently considering. As we’ve said, you can’t apply stress tests definitively until you have a defined mechanism/structure to test. Nonetheless, we’ll do our best with the proposed mechanisms at this point. Please review over the weekend and provide edits. We can discuss on our call Wednesday 11-March at 11:00 UTC. Regards, Steve — Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.703.615.6206

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[CCWG-ACCT] Additional Stress Tests to discuss
by Steve DelBianco March 4, 2015

March 4, 2015

For tomorrow’s call, we applied 4 more of our stress tests against the draft package of proposed accountability measures. Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the attached draft document. Stress Test: #1. Change authority for the IANA Root Zone ceases to function, in part or in whole. #2. Delegation authority for the IANA Root Zone ceases to function, in part or in whole. Consequence: interference with existing policy relating to IANA Root Zone and/or prejudice to the security and stability of one or several TLDs. Existing Accountability Measures: Under the present IANA contract, NTIA can revoke ICANN’s authority to perform IANA functions and re-assign to different entity/entities. After NTIA relinquishes the IANA contract, this measure will no longer be available. Proposed Accountability Measures: The CWG planning the IANA stewardship transition might design mechanisms and structures that enable separation, such that the IANA functions could be readily revoked and re-assigned. To manage the revocation of IANA functions, the CWG might also propose an emergency backup provider and procedures, pending re-assignment of the IANA functions. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. At this point, CWG’s recommendations are still in development. ——————————————————— Stress Test: #24. An incoming Chief Executive institutes a “strategic review” that arrives at a new, extended mission for ICANN. The Board, having just hired the new CEO, approves the new mission and strategy without community consensus. Consequence: Community ceases to see ICANN as the community’s own mechanism for discharging limited technical functions, and views ICANN as an independent, sui generis entity with its own agenda, not necessarily supported by the community. Ultimately, community questions why ICANN’s original functions should remain controlled by a body that has acquired a much broader and less widely supported mission. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to expand scope too broadly. The Community has some input in ICANN budgeting and Strat Plan, and could register objections to plans and spending on extending ICANN’s mission. California’s Attorney General has jurisdiction over non-profit entities acting outside Bylaws or Articles of Incorporation. Proposed Accountability Measures: One proposed measure is empowering the community to veto ICANN’s proposed annual budget. This measure could block a proposal by ICANN to increase its expenditure on extending its mission beyond what the community supported. If the ICANN board voted to approve the CEO’s plans, one proposed measure would give the community standing to veto a board decision. Another proposed measure is empowering the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures in combination are adequate. ——————————————————— Stress Test: #15. ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions. Consequence: affected parties could be prevented from seeking legal redress for commissions or omissions by ICANN. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to move in order to avoid legal jurisdiction. Paragraph 8 of the AoC requires ICANN to remain headquartered in the US, but the AoC can be terminated by ICANN at any time. As long as NTIA controls the IANA contract, ICANN feels pressure to maintain the AoC. Proposed Accountability Measures: One proposed measure is to give the community standing to veto a board decision. If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision. One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party. If ICANN’s board proposed to amend the AoC provisions added to the bylaws, another proposed measure would empower the community to veto that proposed bylaws change. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures improve upon existing measures, and may be adequate.

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