Dear Council Leadership and Members, In relation to the AOB item re the ICANN Grant Program that evolved from the Board's approval of the CCWG Auction Proceeds Final Report, ICANN Org has re-established a list of consenting former CCWG members for the purpose of community consultation. As a former CSG voting delegate to the CCWG Auction Proceeds, I posed certain questions after consultation with some CSG members. The questions and ICANN Org's responses to the questions appear below. Notably, no one knows of a procedure in place for the Board to modify a Final Recommendation of a CCWG that the Board has already adopted. So to borrow a term from cricket, that is a bit of a "sticky wicket". I think other Councilors will have further comments on the substance of the proposed solution of private contracting to eliminate resort to Request for Reconsideration and Independent Review as to grant decisions (in lieu of a ByLaws amendment to accomplish this as recommended by the CCWG.) Thank you, Anne Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com ---------- Forwarded message --------- From: Negar Conrad <negar.conrad@icann.org> Date: Thu, Aug 17, 2023 at 8:33 AM Subject: Re: [FormerMembersCCWG-AP] Correspondence ICANN - Anne Aikman-Scalese To: Anne ICANN <anneicanngnso@gmail.com> Cc: FormerMembersCCWG-AP@icann.org <FormerMembersCCWG-AP@icann.org>, Susan Payne <susan.payne@comlaude.com>, Paul McGrady <paul@elstermcgrady.com>, lschulman@inta.org <lschulman@inta.org> Dear Anne, Thank you very much for your note and clarifying questions. Xavier is currently out of office so I’m responding to your email instead. Please see our responses, inline, below. 1. The Board adopted the Final Recommendations of the CCWG Auction Proceeds in June of 2022 and proceeded to instruct ICANN Org to implement. The Board adopted <https://www.icann.org/en/board-activities-and-meetings/materials/approved-re...> the Final Recommendations of the CCWG on Auction Proceeds on 12 June 2022 and directed ICANN org to take the actions as specified in the accompanying Scorecard <https://www.icann.org/en/system/files/files/scorecard-ccwg-ap-final-recommen...>, and “to ultimately implement an ICANN Grant Giving Program that is aligned with ICANN's mission and based in sound governance practices.” 2. It appears that it was determined that no IRT was necessary in order to proceed. The CCWG did not specify the need for an IRT. 3. The CCWG Guidelines appear to allow for ICANN to proceed to implement in the absence of an IRT being requested by the CCWG. See what I think are the CCWG guidelines at the link below but I am not certain this version is current. (Could you please confirm by reply all?) https://ccnso.icann.org/sites/default/files/file/field-file-attach/2016-12/c... [ccnso.icann.org] The CCWG Guidelines are a community document providing a general framework for the establishment, operations and closure of CCWGs. They are not Board approved. Upon consultation with ICANN org colleagues, I understand that the version that you cited is the most recent version, which the GNSO and ccNSO, as chartering organizations to establish this framework, have both adopted. 4. The Board considers the adoption of the Final Recommendation to amend the ByLaws to exempt grant decisions by the independent panel from the Request for Reconsideration and Independent Review Process as being unwieldy and too complicated, causing too much delay. The Board has recommended transactional remedies in the nature of covenant not to sue ICANN for grant applicants. The Board has signaled its intent to maintain the CCWG’s recommendation that grant decisions by the independent panel should be exempted from the Reconsideration and IRP Processes, but that the manner of implementation of that community-based recommendation should be moved into a contract with applicants as opposed to changes to ICANN’s core accountability mechanisms as defined in the Bylaws. 5. Some members of CSG have questioned the procedure and the efficacy of the recommended solution. [Note, this appears to be a statement that does not require confirmation from ICANN.] 6. The CCWG list has been reestablished for the purpose of facilitating dialogue among consenting former members of the CCWG Auction Proceeds, though this is not an attempt to convene an IRT. A mailing list of prior CCWG members that consent to join the list has been established, as one of the communication avenues that ICANN org has planned to keep the community up to date, for the purpose of facilitating updates to the former members in a transparent and publicly archived list. Any dialogue among those former members would be publicly archived as well. Xavier, could we please see the proposed text of the Resolution to override the adopted Final Recommendation of the CCWG Auction Proceeds and could we please know the date at which this Resolution will next be considered by the Board? While the Board has not taken its decision yet, as Tripti noted in her recent email, the Board intends to direct an implementation path that both upholds the CCWG-AP’s recommendation that individual application decisions should not be challenged through ICANN’s accountability mechanisms, while also keeping ICANN’s accountability mechanisms unchanged within the Bylaws. This will also support the CCWG-AP’s intention to to lower complexity and protect the total amount of proceeds available for applicants. The Board is scheduled to further consider this matter in September. The Board’s intended resolution and rationale will detail all of the Board’s motivation for changing the implementation path, including a discussion that the use of contractual terms and conditions as contemplated is a limited and narrow solution that could only be used when there is a community-developed and supported recommendation to limit the usage of ICANN’s accountability mechanisms. Separately, is there a specific procedure applicable to overriding an adopted Final Recommendation of a Cross Community Working Group? We are not aware of a defined process (such as those defined in the Bylaws to govern consideration of recommendations from the GNSO Council’s PDP or a ccPDP) for the consideration of CCWG recommendations. Thank you for your continued interest in this important program and your efforts to help make it a success. Kind regards, Negar Conrad ICANN Director, Implementation Operations *From: *FormerMembersCCWG-AP <formermembersccwg-ap-bounces@icann.org> on behalf of Anne ICANN <anneicanngnso@gmail.com> *Date: *Monday, August 14, 2023 at 11:29 AM *To: *"erika@erikamann.com" <erika@erikamann.com> *Cc: *"FormerMembersCCWG-AP@icann.org" <FormerMembersCCWG-AP@icann.org>, Susan Payne <susan.payne@comlaude.com>, Paul McGrady <paul@elstermcgrady.com>, "lschulman@inta.org" <lschulman@inta.org> *Subject: *Re: [FormerMembersCCWG-AP] Correspondence ICANN - Anne Aikman-Scalese Many thanks Xavier and Erika, for continuing this dialogue. In order to be able to brief the CSG on this proposed action, I need to get clarification on the following: 1. The Board adopted the Final Recommendations of the CCWG Auction Proceeds in June of 2022 and proceeded to instruct ICANN Org to implement. 2. It appears that it was determined that no IRT was necessary in order to proceed. 3. The CCWG Guidelines appear to allow for ICANN to proceed to implement in the absence of an IRT being requested by the CCWG. See what I think are the CCWG guidelines at the link below but I am not certain this version is current. (Could you please confirm by reply all?) https://ccnso.icann.org/sites/default/files/file/field-file-attach/2016-12/c... [ccnso.icann.org] <https://urldefense.com/v3/__https:/ccnso.icann.org/sites/default/files/file/...> 4. The Board considers the adoption of the Final Recommendation to amend the ByLaws to exempt grant decisions by the independent panel from the Request for Reconsideration and Independent Review Process as being unwieldy and too complicated, causing too much delay. The Board has recommended transactional remedies in the nature of covenant not to sue ICANN for grant applicants. 5. Some members of CSG have questioned the procedure and the efficacy of the recommended solution. 6. The CCWG list has been reestablished for the purpose of facilitating dialogue among consenting former members of the CCWG Auction Proceeds, though this is not an attempt to convene an IRT. *Xavier, could we please see the proposed text of the Resolution to override the adopted Final Recommendation of the CCWG Auction Proceeds and could we please know the date at which this Resolution will next be considered by the Board? * *Separately, is there a specific procedure applicable to overriding an adopted Final Recommendation of a Cross Community Working Group? * *I need to be able to confirm the above assumptions and to obtain answers to the above questions in order to advise CSG members and receive instructions on this matter.* Thank you! Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Thu, Aug 10, 2023 at 7:33 AM Erika Mann <erika@erikamann.com> wrote: Thank you Xavier - This is well understood. I will reach out to Ching and either we will forward you something together or I will respond individually. All is fine, Xavier. Hopefully you’re enjoying the summer period. Warm regards, Erika Erika Mann Senior Advisor Covington & Burling erika@erikamann.com +32 498 121354 Sent from my iPhone On Aug 10, 2023, at 4:12 PM, Xavier Calvez <xavier.calvez@icann.org> wrote: Dear Erika, Thank you for reaching out. I hope all is well. We have shared on this list information about a Board decision being considered but do not have any specific questions to be addressed. However, we welcome any feedback you, Ching, or any former member of the CCWG AP on this list would like to share. We can not speak on behalf of the GNSO but I believe there are members of the GNSO on this list who may be able to help. Thank you. Best, Xavier Xavier Calvez ICANN *SVP Planning and CFO* *12025 Waterfront Drive, Suite 300* *Los Angeles, California 90094* *USA * *Office phone:* +1 310 301 5800 *Cell phone:* +1 805 312 0052 *Skype:* Xavier.calvez.icann *From: *FormerMembersCCWG-AP <formermembersccwg-ap-bounces@icann.org> on behalf of Erika Mann <erika@erikamann.com> *Date: *Thursday, August 10, 2023 at 4:46 AM *To: *Giovanni Seppia <giovanni.seppia@icann.org> *Cc: *"formermembersccwg-ap@icann.org" <formermembersccwg-ap@icann.org> *Subject: *Re: [FormerMembersCCWG-AP] Correspondence ICANN - Anne Aikman-Scalese Dear Giovanni, dear Xavier - Would you, the board, the GNSO, be interested in receiving from the co-chairs of the former CCWG an informal opinion on the remaining questions? Kind regards, Erika Erika Mann Senior Advisor Covington & Burling erika@erikamann.com +32 498 121354 Sent from my iPhone On Aug 10, 2023, at 12:02 PM, Giovanni Seppia <giovanni.seppia@icann.org> wrote: Dear former members of the CCWG-AP, As anticipated, please see below the correspondence between ICANN and Anne Aikman-Scalese that occurred during the past weeks. Now that this list has been created, we encourage conversation to continue here. Best, Giovanni *From: *Xavier Calvez <xavier.calvez@icann.org> *Date: *Saturday, 5 August 2023 at 02:49 *To: *Anne ICANN *Cc: *XXX *Subject: *Re: [Ext] Re: Message from Tripti Sinha to Former CCWG-AP Members Dear Anne, Thank you for your response below and for further clarifying your view. As you are likely aware, the Board did not yet formally revisit its decision on the CCWG-AP’s recommendation 7. While many of the concerns you raised (or reported on behalf of others) were already part of the Board’s deliberations, the Board wanted to make sure that its intended outreach was complete before acting. As indicated earlier, we intend to share the content of the emails that Tripti, you, and I have exchanged with the newly created list of former CCWG members who have consented to be included to provide visibility to the concerns you have shared and the responses provided. We also intend to further address your points below as a response to the above list, once we will have posted the previous email communication in it (including your email below). These points are addressed within the Board’s rationale for the recommended decision relative to recommendation #7. Thank you again for your interest on this topic and for taking the time to share your thoughts. The communication that is resulting from it helps to ensure that the Board and org remain accountable to the community. Best regards, Xavier Xavier Calvez ICANN *SVP Planning and CFO* *From: *Anne ICANN *Date: *Thursday, July 27, 2023 at 8:24 AM *To: *Xavier Calvez <xavier.calvez@icann.org> *Cc: *XXX *Subject: *Re: [Ext] Re: Message from Tripti Sinha to Former CCWG-AP Members Thanks Xavier. As I am a CSG appointed delegate in this matter, I cannot provide a substantive response to your explanation. Based on the feedback received thus far on the CSG mailing list and the GNSO Council list, it appears the timing of this proposed Board Resolution (TODAY?) is quite concerning given that it modifies a Recommendation contained in the CCWG Final Report without adequate prior consultation with the ICANN community. Significant concerns have been raised by some, not only about procedure, but also about the substantive effectiveness of the chosen path. No one is more interested than I in seeing the ICANN Grant Program move forward. I'm sure CSG members feel similarly. Nonetheless, legitimate concerns have been raised about the timing and the methods chosen for modifying a CCWG Recommendation. The actual Resolution language and the timing of the action were not sent in the previous notification. Accordingly, it would seem appropriate to defer any final action on the proposed Resolution to allow for further discussion. Please include this comment on the list you are now establishing and I do give consent for the posting of this and prior comments communicated. ( I have already authorized Giovanni to add me to that list.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 On Thu, Jul 27, 2023 at 8:04 AM Xavier Calvez <xavier.calvez@icann.org> wrote: Dear Anne, Thank you for your response to Tripti regarding the Board’s anticipated action on the use of ICANN Accountability Mechanisms in the ICANN Grant Program. This message is in response to the email you sent last week (below). I know that Tripti and Maarten are in receipt of your email from yesterday and will share its content with the Board. You raised several points, and I wanted to confirm that the org’s Grant Program Core Team and Steering Committee, as well as the Board, have been carefully considering these items. While the Board has not taken its decision yet, I want to confirm to you that the org and the Board carefully considered and discussed the impact of the original recommendation on both applicants and third parties. As the org team considered the impact of seeking a fundamental Bylaws change that altered the scope of ICANN’s Independent Review Process and the Reconsideration Request Process while making sure that those changes were as narrowly tailored to the CCWG-AP’s recommendations as possible, significant concerns were uncovered. While the amendments would equally impact applicant and third-party access to accountability mechanisms, the contemplated amendments would actually be quite narrow in impact and could create significant loopholes for the use accountability mechanisms by either applicants or third parties to still challenge actions within the Grant Program. The Board’s revised action was reached after evaluating other ways to achieve as much of the CCWG-AP’s intended goal as possible, while also upholding ICANN’s core commitments to accountability and to having its accountability mechanisms remain available. The Board’s resolution and supporting rationale (if adopted) will provide additional detail. As to your notes regarding the limited review opportunities that org is considering within the Grant Program, to the extent such opportunities will be built into the Program, they are currently contemplated to be only for use by the impacted grant applicant, and not for third parties, and will be limited to procedural items that could arise along the path of evaluation of the applicant and application. They are contemplated to be lightweight mechanisms in line with global grant program best practices, and not appeals of issues such as grant amount, as you also caution against. On a procedural note, I want to confirm that the email you received was sent to all former CCWG-AP members. For transparency, we will be moving these communications back onto a publicly archived mailing list, and we think that the issues raised in your email (and our response) are important parts of continuing the dialogue for the benefit of the community. Please indicate if you are willing to be subscribed to the new publicly archived mailing list, and if you agree to us posting your comment and our response within that list. Thank you for your interest on this important program, and your time and efforts offered to the ICANN community to make this program successful. Thank you. Best, Xavier Xavier Calvez ICANN *SVP Planning and CFO* *From: *Anne ICANN *Date: *Thursday, July 20, 2023 at 12:34 PM *To: *Wendy Profit *Cc: *XXX *Subject: *[Ext] Re: Message from Tripti Sinha to Former CCWG-AP Members Many thanks, Tripti. As the former CSG Voting Member to the CCWG Auction Proceeds, I plan to forward this information to CSG members. My personal comment in advance of CSG input would be to note that any new procedural review mechanism adopted by the Board should be "lightweight" and fast. Further, it probably should not be available to challenge the specific amount of any grant, but only for the purpose of a procedural review of a denial of a grant. Nor would it be advisable for anyone to be able to challenge any grant made to another party. The Independent panel mechanism should be sufficient to ensure fairness. (In this regard, it may be advisable to put the proposed limited procedural review mechanism out for public comment. ) Is the Board comfortable that third parties who have not applied for a grant (and thus have not entered into the contractual restriction) would not have grounds to challenge a grant made to someone else by availing themselves of the existing Accountability Mechanisms? ( I think this may be the reason that the CCWG settled on recommending a ByLaws amendment.) As to whether the CCWG should be reconvened for the purpose of designing this procedural review, I'll seek input from the CSG on that question but am not expecting any strong opinions there. Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 On Thu, Jul 20, 2023 at 6:24 AM Wendy Profit <wendy.profit@icann.org> wrote: *Sending on behalf of ICANN Board Chair, Tripti Sinha…* Dear Former CCWG-AP Members, (in bcc) In follow up to the update email from Xavier Calvez, I am writing to you as Chair of the ICANN Board to update you on the Board’s discussions at its workshop during ICANN77. During this workshop, the ICANN Board discussed with ICANN org how to best implement Recommendation #7 of the Final Report. As a reminder, part of Recommendation #7 stated that ICANN’s existing accountability mechanisms – the Independent Review Process (IRP) or the Reconsideration Process – could not be used to challenge decisions made by the Independent Applications Assessment Panel on individual applications within the Grant Program. To allow this would add unnecessary complexity to the program. Additionally, the total available funding for the program could also be depleted by the cost of such challenges. The CCWG-AP (and the Board as well, as indicated in our June 2022 action on the CCWG-AP’s Final Report) assumed that the best way to restrict the use of ICANN’s accountability mechanisms in this way would be to amend the ICANN Bylaws to create a “carve-out.” This would therefore require a Fundamental Bylaws Amendment. After exploring this issue more in-depth, I am happy to share with you that the Board and ICANN org identified a path that both upholds the CCWG-AP’s recommendation that individual application decisions should not be challenged through ICANN’s accountability mechanisms, while also keeping ICANN’s accountability mechanisms unchanged within the Bylaws. The Board is planning to take action on this later this month; however, I wanted to provide you with a preview. The Board will direct ICANN org to use the contractual terms and conditions required to apply for the Grant Program to obtain applicant agreement that they cannot use ICANN’s accountability mechanisms to challenge any individual decision taken on their application within the ICANN Grant Program. This remains in line with the CCWG-AP’s recommendation regarding the accountability mechanisms as well as the intention to lower complexity and protect the total amount of proceeds available for applicants. When the CCWG-AP made Recommendation #7, it also provided guidance that providing limited opportunity for review of decisions within the Grant Program might also introduce complexity, and encouraged ICANN to not make such opportunities available. However, when considering the inability for applicants to use ICANN’s accountability mechanisms for individual decisions, the ICANN Board will also ask ICANN org to explore whether there are appropriate interim opportunities within the evaluation process for applicants to ask for a limited procedural review. The Board hopes this will enhance ICANN’s accountability to applicants, while following best practices within grant making programs. We are happy to have identified a path forward that preserves the CCWG-AP’s recommendation and enhances accountability to applicants and the wider Internet community. The Bylaws are important to us, and we are confident that we can keep up ICANN’s accountability, as set up, while at the same time limiting the ability to challenge for individual selection decisions. The Board is following ICANN org’s implementation closely and looks forward to seeing this program launch next year. Thank you again for your time and efforts that went into envisioning this exciting program. The establishment of the ICANN Grant Program is a testament to your commitment to the work of the CCWG-AP and is an excellent representation of the multistakeholder model in action. Kind Regards, Tripti Sinha Chair, ICANN Board of Directors _______________________________________________ FormerMembersCCWG-AP mailing list FormerMembersCCWG-AP@icann.org https://mm.icann.org/mailman/listinfo/formermembersccwg-ap _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ FormerMembersCCWG-AP mailing list FormerMembersCCWG-AP@icann.org https://mm.icann.org/mailman/listinfo/formermembersccwg-ap _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.