November 2016 - Ws2-guidelines

Notes, recordings, transcript for WS2 Guidelines for Good Faith Subgroup_ Meeting #5_ 23NOV16
by MSSI Secretariat Nov. 23, 2016

Nov. 23, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Guidelines for Good Faith, Meeting #5 - 23NOV16 will be available here shortly: https://community.icann.org/x/nI7DAw 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 WS2 - Guidelines for Good Faith Subgroup | Meeting #5 | Wednesday, 23 November @ 19:00 UTC Notes (including relevant parts of chat): I. Introduction, SOI, roll call Lori Shulman: We have received a response from ICANN Legal as to a possible conflict of interest with them reviewing our documents. The essentially have said no and I agree with this response for the moment. Would like to reach out to Sam Eisner on drafting questions given discussions from Hyderabad - the issue of verifiable facts leads to cause which generates concern. Cheryl Langdon-Orr (CLO): That could be a nice "informal" approach Lori Thomas Rickert: Agree with CLO. Review of WS1 work around removing a sitting ICANN Director. We cannot have a list of reasons - we are looking for guidelines to be used such as the language - for no cause - removing a Director by not using discriminatory language or insulting. Also if facts are stated or references made these should be verifiable. Cheryl Langdon-Orr (CLO): and Sam is an excellent asset and great resource... good to work with IMO II. Annotated First Draft Guidelines - Google Doc https://docs.google.com/document/d/1cXLh-YGFQ-XBKG-2b72oSG8rgXgfMsfPBvywK8B… Lori Shulman: Possibly need to remove a,b,c from 2 or at the very least clarify b. As to b we need to be clear on expectations of Board members. Cheryl Langdon-Orr (CLO): I see the points raised on that 'cause' issue raised by Sam and see that just a modified 2C.can work becoming an a. Alan Greenberg: Its not an issue of fairness - under California law they can be removed for any reason. Thomas Rickert, CCWG Co-Chair: One test we have to pass is that we do not undo WS1 recommendations. Therefore the question of fairness, if at all, is not relevant as this is a requirement from WS1. Julf Helsingius: I am confused - I assumed anyone could *suggest* a board member can be removed, but to actually remove a board member you still need a majority of the empowered community? Thomas Rickert, CCWG Co-Chair: The Board members know the rules of the game and they know they can be removed at any time for any reason. Julf Helsingius: And yes, as a board member in a bunch of companies, I can be removed at any point if shareholders don't like me. Cheryl Langdon-Orr: Agree with AG. A director should not be surprized that an SOAC or the Empowered Community can remove them for no reason. Alan Greenberg: Pretty hard to imagine that this would occur without any warning for a director. Trying to remove a director from the ALAC would be a long and very public process. As a Nomcom director it has to be public. SOACs have to make a decision as a group this is not one person making a decision in secret. Lori Schulman: maybe we need to concentrate on process vs causes. If a reason is given it should be fact based and verifiable. Alan Greenberg: To use my purple pants rationale, if in fact the person never wore pants that can be considered purple, then I would not be indemnified... Lori Schulman: We need to dial down the language on cause and we need to focus on process. Cheryl Langdon-Orr: support this. Alan Greenberg: we cannot hope to have detailed processes for SOACs each of these is very different. Bernard Turcotte: AG looking at very have level playbook or dos and donts that would apply to all to add depth and colour to the removal process agreed to in WS1. III. Proposed changes to annotated draft based on feedback from Hyderabad? IV. AOB Lori Schulman: Action Items for LS reach out to SE. Reread WS1 processes. Redo a version of this draft. I have two weeks of intensive travels coming up. Should we have another call before the end of the year? confirm December 14th meeting. Still expecting a comment from the Board as promised. Lito Ibarra: I have been talking about this at the Board and things seem ok.

1 0

FW: Response from ICANN Legal questions from Guidelines For Standard of Conduct...Subgroup
by Lori Schulman Nov. 16, 2016

Nov. 16, 2016

Dear Subgroup, I hope that you are readjusting from Hyderabad. I am in the midst of my organization’s leadership meeting after trying to recover from the Hyderabad “bug” that seemed to grip many of us. Attached and pasted below for your convenience is ICANN Legal’s response to our query about any potential legal conflict. The answer makes sense to me. I may reach out directly to Samantha Eisner to discuss possible solutions to our drafting conflicts with regard to sticking with the WS1 principle of allowing the community to remove Board members for any reason and creating guidelines that demonstrate good faith and protect the community for the purposes of triggering the indemnity. I am also going to take some time before our meeting next Wednesday to see if I can revise our draft based on the comments received in Hyderabad. I would welcome more input especially to part 2 of the draft. So far, I have heard from Sam and Robin. Thank you. There has not been any conflict assessment of this issue, and indeed no conflict arises. The ICANN legal team does not report to the Board. The ICANN legal team's obligation is to the organization and to uphold the Bylaws. The ICANN Bylaws now include a right of the community to directly remove Board members, and also allow for, at Section 20.2, the indemnification of community members who participate in good faith in those removal proceedings. It is ICANN's obligation to uphold that Bylaw. Providing guidelines to the community on what "good faith" could mean in these circumstances was recommended by ICANN. It is of benefit to all - the ICANN community, board and organization, to understand and agree upon what conduct is appropriate in these circumstances. This is a collective - and not an adverse - effort. The guidelines developed by the community are not expected to be overly burdensome or restrictive, but to provide some path of "if you do x while participating in the conversation, that tends to demonstrate good faith". There could be concerns, of course, depending on how the guidelines are drafted, as to whether they meet the requirements of law. For example, a guideline that suggests that "good faith" participation allows willful avoidance of facts (which, of course, is not part of the group's deliberations to date) should not be acceptable to any attorney reviewing the document, whether they are with ICANN's legal department or external. It will also be very important to understand if the ICANN legal department identifies any potential legal issues with the text as drafted, as that could impact whether the Board is in a position to accept the recommendation based on issues of legality. We recommend, as a starting point, that the guidelines be presented to the ICANN legal department for review. If it were to occur that the ICANN legal department raises a challenge to any of the guidelines, and it is believed by those participating in the discussion that there would be a benefit to obtain additional advice or a different viewpoint, that might be an appropriate point for reference to external counsel. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Karen Mulberry [mailto:karen.mulberry@icann.org] Sent: Tuesday, November 15, 2016 7:01 PM To: Lori Schulman <lschulman(a)inta.org> Cc: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx>; Mathieu Weill <mathieu.weill(a)afnic.fr>; Thomas Rickert <rickert(a)anwaelte.de>; ACCT-Staff <acct-staff(a)icann.org> Subject: Response from ICANN Legal questions from Guidelines For Standard of Conduct...Subgroup The original message is attached because it is signed. ________________________________

3 2

WS2 Guidelines for Good Faith Rough Annotated Draft 10-18-16 - Invitation to edit
by Yvette Guigneaux (via Google Docs) Nov. 2, 2016

Nov. 2, 2016

I've shared an item with you: WS2 Guidelines for Good Faith Rough Annotated Draft 10-18-16 https://docs.google.com/document/d/1cXLh-YGFQ-XBKG-2b72oSG8rgXgfMsfPBvywK8B… It's not an attachment -- it's stored online. To open this item, just click the link above. Hi All - Guidelines of Good Faith Annotated Draft - Google doc - everyone should have editing rights - if it doesn't work just let me know, thanks! Yvette Guigneaux MSSI Projects Asst. yvette.guigneaux(a)icann.org

1 0