October 2016 - Ws2-guidelines

Dashboard Report
by Lori Schulman Oct. 31, 2016

Oct. 31, 2016

Dear Subgroup, Below is the Dashboard report that I recently submitted to the secretariat. Please let me know if you have any comments and we can adjust accordingly. These reports are due once a month. Safe travels to Hyderabad. See you online on November 2 and in-person November 7-9. Guidelines for Standards of Conduct Presumed to be in Good Faith Associated with Exercising Removal of Individual ICANN Board Directors Description Article 6 of ICANN’s by-laws creates an Empowered Community (EC) with the right to appoint and removal individual Directors (other than the President.) The EC is composed of the ASO, ccNSO, GNSO, the ALAC and the GAC otherwise known as Decisional Participants. In the event that a Decisional Participant endeavors to remove an individual board member, the actions of the Decisional Participant are indemnified provided the Decisional Participant has acted in “good faith.” An indemnification is an obligation to repay the Decisional Participant for expenses the Decisional Participant may incur through exercising the power to remove a board member. The purpose of this subteam is to draft guidelines for conduct that would be considered good faith actions on the part of the Decisional Participants in order for the indemnification to apply. Work Plan: Subgroup is working toward a March Submission. Start work – completed Document work to do – completed Produce draft for subgroup – in progress Produce draft for CCWG – not completed Produce draft for PC – not completed Public Comment – not completed Revise Draft – not completed CCWG Approval Updates: ▪ 4 Calls ▪ Defined parameters for guidelines ▪ Discussed the issue of “cause” and drafting challenges around use of the word in the ICANN context ▪ Differentiated between removal of Nom Com and SO/AC appointees to Board ▪ Initial draft of guidelines produced and distributed to list with open questions ▪ Note that initial draft of guidelines is not the full report ▪ Guidelines to be completed and then draft report produced according to prescribed format. ▪ Draft guidelines to posted to Google docs through link on subgroup wiki ▪ Request for legal support submitted to secretariat ▪ Draft guidelines distributed to plenary for initial reaction Upcoming Activities: ▪ Answer open questions on draft guidelines based on feedback from plenary ▪ Revise draft guidelines and create final “first draft” for subgroup consensus ▪ Begin draft report which includes draft guidelines Open Items: ▪ Further discussion regarding how to work around the drafting problems regarding use of the word “cause” to document a process ▪ Analyze response from legal committee ▪ Resolve issue regarding of whether creating expectations of standards for board conduct that may trigger a removal may also be creating an inadvertent list of “causes” contrary to WS1 report ▪ Is process fair/reasonable if expectations cannot be expressed beyond “do no harm”? Progress assessment: 20+ % Proposed scaling: 5 % - subgroup formed 10% - working methods defined 15% - questions to answer have been documented 20% - work to do has been documented 30% - produced draft for subgroup consensus 40% - produced draft for CCWG considerations and comments 50% - Produced draft for CCWG approval for public consultation 60% - Produced draft for public comment 70% - analyzed public comments 80% - revised draft for CCWG considerations and comments 90% - produced draft for CCWG approval 100% - CCWG approved> Lori Schulman Senior Director, Internet Policy International Trademark Association 1250 Connecticut Avenue, Suite 200 Washington DC, USA +1-202-704-0408, skype: lsschulman www.inta.org<http://www.inta.org/> Find us on: [Description: Description: Description: cid:F361C18F-02FE-4CF0-A43E-AA8566DC2514] Twitter<https://twitter.com/INTA> [Description: Description: LinkedIn] LinkedIn<http://www.linkedin.com/groupInvitation?groupID=69899> [Description: Description: facebook-logo (2)] Facebook<http://www.facebook.com/home.php?#!/GoINTA?ref=ts> [Description: Description: pnpb_sig.png]

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Today's Call is Cancelled
by Lori Schulman Oct. 26, 2016

Oct. 26, 2016

Hello, Based on the responses to the list, we are cancelling today's call. Please use the time to review the guidelines and add your comments to the Google doc. It's is important that we have something to submit for our report which is due on Friday. The link is on the wiki page. We will revert to working primarily online for the next month as many of us will be travelling. Our next call will be on November 23rd. Have safe travels and see you in India. Lori Lori Schulman Senior Director, Internet Policy International Trademark Association 1250 Connecticut Avenue, Suite 200 Washington DC, USA +1-202-704-0408, skype: lsschulman www.inta.org<http://www.inta.org/> Find us on: [Description: Description: Description: cid:F361C18F-02FE-4CF0-A43E-AA8566DC2514] Twitter<https://twitter.com/INTA> [Description: Description: LinkedIn] LinkedIn<http://www.linkedin.com/groupInvitation?groupID=69899> [Description: Description: facebook-logo (2)] Facebook<http://www.facebook.com/home.php?#!/GoINTA?ref=ts> [Description: Description: pnpb_sig.png]

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Call tomorrow?
by Lori Schulman Oct. 25, 2016

Oct. 25, 2016

Dear All, Follow up my email of a few minutes ago, I am inclined to cancel tomorrow's call and take the time to draft our report to the CCWG which is due Friday. It will be an updated version of the report that I sent 2 weeks ago with the addition of our legal inquiries and our very rough draft. Also, perhaps our other members could use the freed up time to review the google doc and insert comments? My intention, unless there is an objection, is to include a draft of the guidelines will all notes and comments as part of the report. We can then aim for a consensus draft after Hyderabad. https://community.icann.org/display/WEIA/Guidelines+for+Good+Faith+Conduct?… May I please have feedback whether we cancel or proceed with tomorrow's scheduled call? Thank you Lori Lori Schulman Senior Director, Internet Policy International Trademark Association 1250 Connecticut Avenue, Suite 200 Washington DC, USA +1-202-704-0408, skype: lsschulman www.inta.org<http://www.inta.org/> Find us on: [Description: Description: Description: cid:F361C18F-02FE-4CF0-A43E-AA8566DC2514] Twitter<https://twitter.com/INTA> [Description: Description: LinkedIn] LinkedIn<http://www.linkedin.com/groupInvitation?groupID=69899> [Description: Description: facebook-logo (2)] Facebook<http://www.facebook.com/home.php?#!/GoINTA?ref=ts> [Description: Description: pnpb_sig.png]

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Guidelines Draft Posted For Internal Feedback
by Lori Schulman Oct. 25, 2016

Oct. 25, 2016

Dear All, I gave an update to the CCWG plenary call today. I explained where we are in our process and was very clear that our draft is just a first thought and should not be considered anything but that. We have posted the document in Google Docs with instructions on how to insert comments. The link is on our subgroups Wiki page. I will insert Sam's comments from last week. I included his comments as part of my verbal report to the group this morning. Alan Greenberg did an excellent intervention on explaining our drafting challenges given that we are responsible for developing a process and the consensus report clearly does not want an exhaustive list of causes. What is the appropriate language for removal if we decide not to make any reference to cause? Should the word "reason" be substituted for cause in section 1? What other terms could we use? Do Section 2 points a-c create the "cause" issue that we are trying to avoid? Please take time to really look at the document and share your input. Our report is due to the CCWG on Friday and I would like to share as much feedback as we can with the group. Ideally, I will attach the draft with all of our substantive comments and thoughts. See the link below or access it from the wiki. https://community.icann.org/display/WEIA/Guidelines+for+Good+Faith+Conduct?… Here is how to make a comment - once you open the document, the last icon below on the right (highlighted in yellow) - click on it and drag it to where you want to make a comment - then a comment box appears for people to type in their comments - make sense? Please review when you can and let me know if this is ok. :) [cid:image007.jpg@01D22EB6.07384720] Lori Schulman Senior Director, Internet Policy International Trademark Association 1250 Connecticut Avenue, Suite 200 Washington DC, USA +1-202-704-0408, skype: lsschulman www.inta.org<http://www.inta.org/> Find us on: [Description: Description: Description: cid:F361C18F-02FE-4CF0-A43E-AA8566DC2514] Twitter<https://twitter.com/INTA> [Description: Description: LinkedIn] LinkedIn<http://www.linkedin.com/groupInvitation?groupID=69899> [Description: Description: facebook-logo (2)] Facebook<http://www.facebook.com/home.php?#!/GoINTA?ref=ts> [Description: Description: pnpb_sig.png]

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Notes, recordings, transcript for WS2 Guidelines for Good Faith Subgroup_ Meeting #4_ 20 October 16
by MSSI Secretariat Oct. 20, 2016

Oct. 20, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Guidelines for Good Faith, Meeting #4 - 20 October 16 will be available here: https://community.icann.org/x/BAG4Aw A copy of the notes may be found below. Thank you. Kindest Regards, Yvette Guigneaux Multi-Stakeholder & Strategic Initiative Assistant ICANN | Internet Corporation for Assigned Names & Numbers 12025 Waterfront Drive, Playa Vista, CA 90094 yvette.guigneaux(a)icann.org<mailto:yvette.guigneaux@icann.org> | www.icann.org<http://www.icann.org> ________________________________ Notes 1. Guidelines for Standard of Conduct Loaded to Google Docs with Annotations Discussed the format of the draft and ways for group members to contribute to the contents 2. Question Submitted to Legal Committee re: Conflict of Interest with ICANN in-house counsel reviewing guidelines? Questions submitted to CCWG Legal Committee regarding conflict of interest in reviewing the guidelines and what flags there may be that would conflict with CA law. Legal Committee has responded and has asked for a timeline. 3. Hyderabad Plenary Meeting Subgroup Report Discussed the plenary meeting and subgroup reports, Guidelines report will be made by Lori remotely. Inputs to the draft report have been requested. 4. Next Call Discussed the need to hold a call next week, and the calls for the next three weeks would be canceled as a result of the ICANN meeting and other meetings. 5. AOB No further business

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October 19 Meeting Agenda and Most Recent Draft
by Lori Schulman Oct. 19, 2016

Oct. 19, 2016

Dear All, Attached is the agenda for tomorrow’s call, the draft guidelines with questions that will be posted to Google Docs by the time of the meeting or soon thereafter and the question to the Legal Sub team regarding the potential conflict of interest regarding ICANN in-house legal review of the guidelines. I expect our call will be short tomorrow. I do hope that we have a good turn out and I will update you on the Hyderabad meeting our preparation for it. Please let me know if you have questions or comments. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman

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[Ws2-staff_acct] Notes, recordings, transcript for WS2 Guidelines for Good Faith Subgroup Meeting #3_ 05 October 2016
by Yvette Guigneaux Oct. 5, 2016

Oct. 5, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Guidelines for Good Faith Subgroup, Meeting #3 - 05 October 2016 will be available here: https://community.icann.org/x/dQW4Aw A copy of the notes may be found below. Thank you. Kindest Regards, Yvette Guigneaux Multi-Stakeholder & Strategic Initiative Assistant ICANN | Internet Corporation for Assigned Names & Numbers 12025 Waterfront Drive, Playa Vista, CA 90094 yvette.guigneaux(a)icann.org<mailto:yvette.guigneaux@icann.org> | www.icann.org<http://www.icann.org> ________________________________ Notes 1. Rapporteur's report to the plenary planning group dated October 2 - Review and discussion of Report to plenary on activities of the subgroup 2. First draft of guidelines proposed by the Rapporteur to the list on October 2 - Discussion of what the subgroup needs for drafting support from Staff Looking at drafters to look at WS1 and identify applicable items for consideration for the draft report. -Discussion of the report outline and rough draft of what the group might focus its work on in collecting inputs from the group. -Draft contains min. set of guidelines - seeking feedback on draft guidelines. Need to capture questions that need to be addressed in the draft as well as to capture comments. Question raised - should the committee draft what it means to have a reasonable timeframe for an investigation. Might have the Ombudsman be apart of the process to observe to make sure things are fair and the process is followed for removal. Comment from Herb - feels that there is a role for the Ombudsman in this process. Procedures for Board removal is contained in the Bylaws under Article 3 - Removal of Directors 1-8 are subject to a Nominating Committee Director Removal Petition to the EC Administration. One of the requirements is that the petition include "supporting rational in reasonable detail." See Annex D, Art. 3, Section 3.1, (D).1.(i), (page 178), SO/AC Board Members are subject to a different procedure. The Petition to remove an SO/AC appointee is made directly to the SO/AC. The SO/AC may accept or reject the petition based on its own internal procedures. Might consider in drafting the report to add examples and what the group was thinking when they drafted a guideline or section of the report. Focus is on how to remove a Board member not on the causes for Board member removal. Herb to consider reviewing draft report for fairness will not draft text for the report as its the community that should decide what it wants. ACTION ITEM; Will set up Google doc for the group for submitting comments on draft. 3. Requirement for legal assistance - Discussion of when to go for external advice and the materials that may need legal review Aware of needs to keep an eye on budget issues when asking for legal review. Will consider going to ICANN Legal first as their expertise is ICANN, but may need additional support and opinion from outside counsel as it relates to an ICANN Board member. Will follow CCWG procedures in requesting legal advice. Concerned raise on potential conflict of interest if just relying on ICANN advice on guidelines. Considering raising the question to the CCWG Legal Subcommittee for consideration of the question. ACTION ITEM: Rapporteur to ask the CCWG Legal Committee on legal conflict with ICANN legal providing opinion of guidelines 4. Requirements for drafting assistance from staff

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FW: CCWG-Sub-groups Action Items from last plenary
by Lori Schulman Oct. 2, 2016

Oct. 2, 2016

Dear All, Below and attached are a proposed agenda for this week’s call and the report that I submitted to the WS2 Subgroup leadership this afternoon. Please review the report. If there are any revisions, we can discuss at our next meeting and I will make them in future reports. The report reflects my understanding of where we are based on our last 2 conversations. Based on the feedback in the chat from the last meeting, my recommendation is that we begin to draft the actual guidelines and then compare them to the NTIA criteria and the WS1 report afterward. I would like to use next Wednesday’s call as a session to gather ideas and come out with a rough draft. We can start with bullet points and add explanations as we go. My suggestions would be to have guidelines that cover all Board members and then a subset for SO/AC appointees if we feel that is necessary. Given our “minimalist” approach, I think it would be a good idea for SO/AC’s to have a requirement to transmit their expectations to their appointees otherwise, the Board Member will not have sufficient notice of what the expectations are. We don’t dictate the expectation but require that whatever the expectation is that it be disclosed. Otherwise, the Board Members may assert that they did not have notice of the expectations or, otherwise, have some sort of conflict that having knowledge of the expectation could have resolved. My suggestions are below (and attached) and I welcome input, revisions, etc. As a reminder, under Article 3 of the Bylaws – Removal of Directors 1-8 are subject to a Nominating Committee Director Removal Petition to the EC Administration. One of the requirements is that the petition include “supporting rational in reasonable detail.” See Annex D, Art. 3, Section 3.1, (D).1.(i), (page 178), SO/AC Board Members are subject to a different procedure. The Petition to remove an SO/AC appointee is made directly to the SO/AC. The SO/AC may accept or reject the petition based on its own internal procedures. Proposed guidelines for bringing proposed board removal actions: 1) For All Board seats, petitions for removal: a. may be for any cause b. should: i. be fact based ii. in sufficient detail to verify facts iii. supply supporting evidence if available iv. include references to applicable by-laws and/or procedures if the assertion is that a specific by-law or procedure has been breached v. be respectful and professional in tone 2) In addition, for SO/AC nominees, each SO/AC should: a. establish expectations for Board member effectiveness with regard to representing SO/AC interests b. transmit the expectations to the Board Members within a specified period of time upon taking a seat on the board c. clarify that SO/AC expectations are in addition to any cause that may be brought forth without limiting cause d. develop procedures for consideration of SO/AC Director Removal Petition Notices that include: i. reasonable time frames for investigation ii. written verification of claims iii. consistent voting method for accepting or rejecting a petition I am offline for the next 48 hours and I do look forward to more feedback and productive discussions. Thank you for your good work. Lori Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Lori Schulman Sent: Sunday, October 02, 2016 2:15 PM To: 'Niels ten Oever' <lists(a)nielstenoever.net>; Bernard Turcotte <turcotte.bernard(a)gmail.com>; Thomas Rickert <thomas(a)rickert.net>; Mathieu Weill <mathieu.weill(a)afnic.fr>; León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>; ACCT-Staff (acct-staff(a)icann.org) <acct-staff(a)icann.org>; Rafik Dammak <rafik.dammak(a)gmail.com>; fasonga(a)kixp.or.ke; Nigel Roberts <nigel(a)channelisles.net>; Greg Shatan <gregshatanipc(a)gmail.com>; Vinay Kesari <vinay.kesari(a)gmail.com>; Sébastien Bachollet <sebastien(a)bachollet.com>; Edward Morris <egmorris1(a)toast.net>; Cheryl Langdon-Orr <langdonorr(a)gmail.com>; farzaneh badii <farzaneh.badii(a)gmail.com>; stevedelbianco <sdelbianco(a)netchoice.org>; avri doria <avri(a)apc.org>; Jordan Carter <jordan(a)internetnz.net.nz>; Wilson, Christopher <cwilson(a)21cf.com>; Michael Karanicolas <michael(a)law-democracy.org> Subject: RE: CCWG-Sub-groups Action Items from last plenary Dear All, Due to the religious observance, I will not be attending the meetings on October 2 or October 3. However, I would like to report that our Subgroup has had 2 calls and we have made progress toward establishing a framework for Guidelines of Standards of Conduct Presumed to be in Good Faith with Exercising Removal of ICANN Board Member. We have determined that we will propose a “minimalist” set of guidelines that will put the responsibility of putting specific processes in place by each SO/AC. This is because we do not wish to interfere in the decision making process of any particular SO/AC. The SO/ACs may have different expectations and standards for Board Members who are chosen to represent them. The guidelines will note each SO/AC has (or should have) a decision making process and the process must include a means to document the decision made, including verification and the steps taken to reach the decision. Our thought is not to be too prescriptive but establish principles for fair and reasonable conduct for the community even if different internal standards apply for different interests. Per the guidance from the WS1 discussions, we will not be listing specific causes of action. Each SO/AC could have a different standard for what constitutes a cause of action for board removal but all SO/ACs must follow the same guidelines in order to elevate their concerns to an action for removal in good faith. The proposed action may be subjective but should be able to be explained and accepted by others. The subgroup has determined that this topic should be categorized as “less complex” and should be able to turn a final or near final report by January 2017. Having a preliminary report by October 5 is not realistic as that is 3 days away but we will work with staff to coordinate a reasonable timeline and to have as complete a set of information as is reasonable for the Hyderabad meeting. Our next step is to begin drafting the actual guidelines and then compare them to the NTIA criteria and WS1 proposal and by-laws. I will note that our sub group is small and many members are involved in other subgroups so helping hands may be full. As the rapporteur, I understand that my responsibility is to ensure the proper drafting of the proposal and will assume most of the drafting work. I will seek assistance from staff as I believe that we will need it. I will reach out to Karen Mulberry to establish a realistic time table and how to coordinate with the staff given all of their other responsibilities. With regard to legal assistance, we have not discussed this issue yet. However, I do not anticipate the need for heavy assistance. It would be prudent once the guidelines are complete to have a review by a legal expert with substantial experience in California nonprofit governance to ensure that there are no red flags. Diligence requires process and as long as we have a clear and documented process, we should be able to meet a “good faith” standard. However, given the quirks of CA law, I would not want to assume anything. I would anticipate maybe 8-10 hours of very experienced, independent attorney time and will confirm this with my subgroup. Lori Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Saturday, October 01, 2016 3:44 AM To: Bernard Turcotte <turcotte.bernard(a)gmail.com<mailto:turcotte.bernard@gmail.com>>; Thomas Rickert <thomas(a)rickert.net<mailto:thomas@rickert.net>>; Mathieu Weill <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>>; León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>>; ACCT-Staff (acct-staff(a)icann.org<mailto:acct-staff@icann.org>) <acct-staff(a)icann.org<mailto:acct-staff@icann.org>>; Rafik Dammak <rafik.dammak(a)gmail.com<mailto:rafik.dammak@gmail.com>>; fasonga(a)kixp.or.ke<mailto:fasonga@kixp.or.ke>; Lori Schulman <lschulman(a)inta.org<mailto:lschulman@inta.org>>; Nigel Roberts <nigel(a)channelisles.net<mailto:nigel@channelisles.net>>; Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>; Vinay Kesari <vinay.kesari(a)gmail.com<mailto:vinay.kesari@gmail.com>>; Sébastien Bachollet <sebastien(a)bachollet.com<mailto:sebastien@bachollet.com>>; Edward Morris <egmorris1(a)toast.net<mailto:egmorris1@toast.net>>; Cheryl Langdon-Orr <langdonorr(a)gmail.com<mailto:langdonorr@gmail.com>>; farzaneh badii <farzaneh.badii(a)gmail.com<mailto:farzaneh.badii@gmail.com>>; stevedelbianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>>; avri doria <avri(a)apc.org<mailto:avri@apc.org>>; Jordan Carter <jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>>; Wilson, Christopher <cwilson(a)21cf.com<mailto:cwilson@21cf.com>>; Michael Karanicolas <michael(a)law-democracy.org<mailto:michael@law-democracy.org>> Subject: Re: CCWG-Sub-groups Action Items from last plenary Hi Bernard, Thanks for the reminder, could you please be so kind to resend the template for the subgroup papers? Thanks in advance, Niels On 09/30/2016 08:46 PM, Bernard Turcotte wrote: > All rapporteurs for CCWG sub-groups, > > At our last plenary meeting the following action items were recorded: > > > CCWG Accountability Plenary WS2 Meeting #5 - 20 September 2016____ > > ACTION ITEMS:____ > > 1. Sub-group rapporteurs should advise in the next two weeks if they are > a complex topic or not for purposes of scheduling as presented today. > Rapporteurs to deliver their subgroups paper 3 weeks (October 5^th ) > prior to Hyderabad outlining work.____ > > 2. Staff to review resources to see if there is a means to do interviews > with leaders to assist in drafting positions. Sub-groups to advise staff > if interested in this assistance.____ > > > > So this is just a gentle reminder as we will be having a prep meeting at > 0500UTC Monday 3 October and a plenary the next day at the same time to > be prepared to discuss the above items. > > Staff have not received any requests from sub-groups for assistance in > drafting papers as proposed by Thomas at our last meeting. If you do > request assistance please email us ASAP. > > Have a good weekend. > > B. > > -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 ________________________________

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