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Notes, recordings, transcript for WS2 Guidelines for Good Faith Subgroup_ Meeting #6_ 14December 6
by MSSI Secretariat Dec. 15, 2016

Dec. 15, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Guidelines for Good Faith, Meeting #6 - 14 December 2016 will be available here: https://community.icann.org/x/WZbDAw 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 Guidelines for Good Faith | Meeting #6 14 December 2016 @ 19:00 UTC Guidelines Agenda: 1. Attendance 2. Changes to SOI 3. Review of Revised Guidelines Based on Hyderabad Feedback 4. Call Next Week? 5. AOB Notes: (including relevant portions of the chat) Introduction * Lori: today's discussion will be do review 2nd draft of the guidelines. It is an umbrella document. After comments are received, we'll produce a 3rd draft. * We need to bring this to CCWG plenary no later than January 18 to meet the short track timeline. 1. Attendance * Roll call will be taken from the AC room. 2. Changes to SOI * No changes to SOI. 3. Review of Revised Guidelines Based on Hyderabad Feedback * Lori read through the new version. * Alan: this looks pretty good. we have to use the words "in good faith" somewhere * Lori suggests putting it in I.a. "and must be in good faith" * Alan: IIb: period of review ... SO/AC: we need to confirm which body is making the decision, it may be the council rather than the SO itself. * Lori: I'll make sure that nomenclature aligns with the bylaws. * Alan: c and d I suspect don't belong here. * Lori: wanted to stress it is an open and transparent process * Alan: maybe "open and transparent as consistent with the rules of the organization" * all SO/ACs have a requirement to notice other organizations. * Cheryl: I think this is looking good * Lito Ibarra: Alan's observations are valid and useful * Julf Helsingius: I agree, it is looking pretty good * Avri: i'd say we are half way done, it needs more discussion and more time to focus on it. * Lori: asking the group to focus on this before Christmas, put some comments on Google Doc, or in emails. * Lori: would like to submit this to ICANN Legal team to provide their input and expertise * Cheryl: could we get a link to the Google Doc * ACTION (staff): send a link to the Google Doc to the subgroup mailing list 4. Call Next Week? * Lori: should we meet next week? * Subgroup agrees to cancel next call. * ACTION (subgroup): send comments on the draft 5. AOB * Bernie: suggest underlining the fact that each SO/AC has their own procedures & rules, and they should be referenced when an SO or AC wishes to document its use of this process. * Cheryl Langdon-Orr (CLO): pro forma set of desirables in our report? * Alan: I am not sure to understand what Bernie is saying, all we can could is say it has to be done in accordance with their set of procedures. Our doc should not be more specific. * Bernie: There should be a note that whenever an So/AC is following through, they should quote the rule that they are following at that time. * Alan: Shouldn't that be true for exercising any community empowered power? We have set up the bylaws but we haven't set up any procedures for overall coordination of any of these things * Lori: should this take more the form of a recommendation than a footnote in our report? * Alan: this is a generic issue that we have to address on a global scale for all of the powers, that someone along the way needs to address. * Lori: this needs to be in our report. * Alan: you said you would start filling out the template for our formal report to the CCWG, when do you think you'll have that ready? * Lori: I will try to produce a draft before new year.

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Guidelines Annotated Draft - Google Doc Link
by MSSI Secretariat Dec. 14, 2016

Dec. 14, 2016

Hi All - Per Lori's request on the 12/14/16 call - here is the Google Doc link for the Guidelines for Good Faith annotated draft as of 12/14/16 - https://docs.google.com/document/d/1cXLh-YGFQ-XBKG-2b72oSG8rgXgfMsfPBvywK8B… Thank you! Kind Regards, Yvette Guigneaux Multi-Stakeholder & Strategic Initiative Asst. ICANN Email: yvette.guigneaux(a)icann.org Cell: +1-310-460-8432 Skype: yvette.guigneaux.icann 12025 Waterfront Drive, Suite 300 Playa Vista, CA 90094

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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.

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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. ________________________________

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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

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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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