The GNSO Council position is responsible, not reprehensible. And what you label "the incumbent system" is a very large swath of the ICANN community - with this Resolution representing the consensus position of the contracted parties, commercial stakeholder group, and non-commercial stakeholder group. Accountability at any given moment means accountability to the community as it exists at that point in time. The GNSO position is advisory and not controlling. Under the adopted budget control processes for WS2 CCWG-ACCT matters, it is the Legal Committee, subject to subsequent approval by the Board (which has fiduciary duties to the corporation), that passes judgment on requests for expenditures on outside counsel advice, as well as any request to increase the overall budget beyond the $1.4 million allocated at present. The Jurisdiction subgroup is presently exploring whether there are any 'gaps' between the accountability enforcement powers and California law, with a developing consensus that if there are not then exploring alternate organizational legal jurisdictions for ICANN would not be a prudent use of time or money. (And there are unlikely to be any gaps of significance, given the extreme vetting on this question by outside counsel at the time the measures were developed.) Anyone is free to participate in the Jurisdiction subgroup and make their best case on any issue being considered by it. But no one is guaranteed a consensus that supports their favored outcome. That's democracy, not hegemony. 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 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, October 04, 2016 4:05 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion I cannot claim to understand the role of GNSO Council in terms of budget for various ICANN activities, but a reading of the below bring a couple of points to my mind: 1. It is unfortunate that, after spending millions on legal advice and other such areas in work stream 1, at which time the agenda for movement in certain directions was very much the will of what I would merely call here as the 'dominant interests', we begun to immediately hear budgetary concerns when work stream 2 started to take shape (after in any case having pushed 'uncomfortable' issues on to this works stream 2). 2. Now, from the wording of GNSO Council's resolution below, one sees further proof of use of fiscal powers by the incumbent system to stymie processes mandated to address constitutional issues (which definitionally could threaten the existing configurations of the 'system') . Very much like what the US Congress tried to do to the transition process. This is a hugely inappropriate and undemocratic thing, and should be looked down upon and condemned. But apparently it is bad if certain people do it (Congress to the IANA process) but good if others do it (GNSO Council to the determination of the jurisdiction issues). But that is how power and hegemony works. I strongly oppose any efforts by the incumbent system to dictate to, what to me is, a constitutional process on what the latter may or may not do -- much worse to hold financial threats. Completely reprehensible. parminder On Tuesday 04 October 2016 01:05 PM, matthew shears wrote: A useful parameter for our work - thanks. On 04/10/2016 07:03, Greg Shatan wrote: I would like to draw this subgroup's attention to the motion below, which was adopted by the GNSO Council on September 29. In particular, please take a look at paragraph 4 of the "Whereas" clauses and paragraph 5 of the motion. Greg ---------- Forwarded message ---------- From: Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>> Date: Tuesday, October 4, 2016 Subject: [CCWG-ACCT] Fwd: FW: Adopted motion To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> From: Marika Konings Sent: Thursday, September 29, 2016 11:33 PM To: Glen de Saint Géry <Glen@icann.org<javascript:_e(%7B%7D,'cvml','Glen@icann.org');>> Subject: Adopted motion Motion - GNSO Validation of CCWG-Accountability Budget Request Made By: James Bladel Seconded by: Julf Helsingius, Keith Drazek WHEREAS, 1. Per its Charter, the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget and cost-control processes for the CCWG-Accountability activities for FY17, and has also developed a historical analysis of all the transition costs to date (see https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf). 2. The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST. This request for validation was received on 23 June. 3. Following review and discussion during ICANN56, the GNSO Council requested a webinar on this topic which was held on 23 August (see transcript at https://gnso.icann.org/en/meetings/transcript-ccwg-accountability-webinar-23..., recording at http://audio.icann.org/gnso/gnso-ccwg-accountability-webinar-23aug16-en.mp3 and AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/). 4. The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not likely support revisiting the topic of the jurisdiction of ICANN's organization in that such exploration would likely require substantial independent legal advice on alternative jurisdictions and their potential impact on the text and structure of ICANN's Bylaws. 5. The GNSO Council has discussed and reviewed all the relevant materials. RESOLVED, 1. The GNSO Council hereby accepts the proposed CCWG-Accountability FY17 budget, as well as the cost-control processes presented in conjunction with the CCWG budget, expects the working groups to be restrained and judicious in their use of outside legal assistance, and believes that the Legal Committee should exercise reasonable and effective controls in evaluating requests for outside legal assistance and should approve them only when deemed essential to assist a working group to fully and objectively understand and develop a particular course of action for which the group has reached a substantial degree of consensus and requires legal advice on its risks and feasibility. 2. The GNSO Council expects to receive regular updates on actual expenditures as tracked against this adopted budget, and reserves the right to provide further input on the budget allocation in relation to the CCWG-Accountability related activities. 3. The GNSO Council expects ICANN staff, including its office of General Counsel, to provide the assistance requested by the CCWG and its working groups in an expeditious, comprehensive, and unbiased manner. 4. The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or requests for additional funding beyond said budget should be recommended by the Legal Committee only when deemed essential to completion of the CCWG's work and objectives. . 5. It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, would not likely be supported by this projected budget and, further, that such inquiry should not be undertaken at this time because the new accountability measures are all premised and dependent on California jurisdiction for their effective operation, and any near-term changes in organizational jurisdiction could be extremely destabilizing for ICANN and its community. 6. The GNSO Council requests the GNSO Secretariat to communicate this resolution to the CCWG-Accountability Chairs, and to the office of the ICANN CFO. Marika Konings Senior Policy Director & Team Leader for the GNSO, Internet Corporation for Assigned Names and Numbers (ICANN) Email: marika.konings@icann.org<javascript:_e(%7B%7D,'cvml','marika.konings@icann.org');> Follow the GNSO via Twitter @ICANN_GNSO Find out more about the GNSO by taking our interactive courses<http://learn.icann.org/courses/gnso> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...>. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13076 - Release Date: 09/24/16 Internal Virus Database is out of date.

Milton; With all respect there was no confusion within Council when it unanimously adopted this Resolution, though there does seem to be some confusion in other quarters about what it actually says. A prior version of the Resolution could have been interpreted as stating a position that budgetary reasons foreclosed the possibility of the Jurisdiction subgroup even considering ICANN organizational jurisdiction. The adopted version instead states the Council's consensus opinion that such exploration could bust the budget, is untimely, and could be destabilizing. But the Resolved clause immediately prior to the one you quote makes clear that budget increases can be contemplated if the Legal Committee deems them "essential to completion of the CCWG's work and objectives". In short, Council has stated an opinion, but that opinion does not bind the subgroup or the legal Committee. While I agree with your observation that most WS2 subgroups "do not need to hire high-priced lawyers to explore" their issues, Jurisdiction is a conspicuous exception in that any decision to look at alternatives to US incorporation for ICANN would require extensive review of relevant law and regulation in other potential jurisdictions, and any decision to implement a change would likely require significant Bylaws revision. The Jurisdiction subgroup remains free to do as it wishes, although based upon my participation in recent meetings it seems to have its own growing consensus that ICANN's own jurisdiction is not a priority issue. Best, 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 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Wednesday, October 05, 2016 12:49 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion Colleagues: I respectfully suggest that the Council was confused when it passed this resolution. Indeed, I think this is devolving into one of those arguments where people talk past each other. As so often happens in ICANN, people are confusing procedural and budgetary determinations with substantive conclusions, or perhaps using the former to foreclose decisions about the latter. Let me take up this aspect of the GNSO resolution: 5. It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, would not likely be supported by this projected budget and, further, that such inquiry should not be undertaken at this time because the new accountability measures are all premised and dependent on California jurisdiction for their effective operation, and any near-term changes in organizational jurisdiction could be extremely destabilizing for ICANN and its community. First, the issue of whether we can afford it is circular. If you don't think it needs to be done, then you don't think it is worth spending the money. But the simple fact is that we do not need to hire high-priced lawyers to explore this issue in some depth, a lot of volunteer work takes place in ICANN WGs. Only when we are re-drafting bylaws or actually moving to another jurisdiction do you need the lawyers. And we are unlikely to decide that. There are many ways to economize on the exploratory process. Second, no one is talking about "near term changes in organizational jurisdiction." This is a complete red herring. The whole point of the WS1 and WS2 distinction was to separate those things that needed immediate implementation at the time of the transition and those things that don't. Jurisdiction was deemed to be one that could be put in WS 2; i.e., not immediate. Now that the transition is complete we have time to explore the implications of Calif jurisdiction at our leisure. I don't see the rush. Third, if people think it makes no sense to alter California jurisdiction then they can argue that point in this working groups' deliberations, and if it really does command a consensus, as people are asserting, then that consensus will be quickly realized and that will be that. I myself think that position will easily win the day. However, deciding this in a pre-emptive manner that does not allow the other side to be aired is bad for ICANN's long-term legitimacy and stability. If we have a full and fair discussion of the issue and decide to remain in California, the issue is settled, forever. If we sweep the issue under the rug and do not allow that consensus to form, then the issue continues to fester. --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Phil Corwin Sent: Tuesday, October 4, 2016 7:11 PM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion The GNSO Council position is responsible, not reprehensible. And what you label "the incumbent system" is a very large swath of the ICANN community - with this Resolution representing the consensus position of the contracted parties, commercial stakeholder group, and non-commercial stakeholder group. Accountability at any given moment means accountability to the community as it exists at that point in time. The GNSO position is advisory and not controlling. Under the adopted budget control processes for WS2 CCWG-ACCT matters, it is the Legal Committee, subject to subsequent approval by the Board (which has fiduciary duties to the corporation), that passes judgment on requests for expenditures on outside counsel advice, as well as any request to increase the overall budget beyond the $1.4 million allocated at present. The Jurisdiction subgroup is presently exploring whether there are any 'gaps' between the accountability enforcement powers and California law, with a developing consensus that if there are not then exploring alternate organizational legal jurisdictions for ICANN would not be a prudent use of time or money. (And there are unlikely to be any gaps of significance, given the extreme vetting on this question by outside counsel at the time the measures were developed.) Anyone is free to participate in the Jurisdiction subgroup and make their best case on any issue being considered by it. But no one is guaranteed a consensus that supports their favored outcome. That's democracy, not hegemony. 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13076 - Release Date: 09/24/16 Internal Virus Database is out of date.

Good afternoon: May I say in this context that any further External Legal support should be based on an open international call for proposals, including academic and NGO sources of research and advice. The existing CCWG/CWG experience in this regard should not be taken a a benchmark for the eventual costs of such advice in the future. https://www.icann.org/resources/pages/iana-transition-project-costs refers. Regards CW PS: This, of course, without prejudice to the scope of the Jurisdiction sub-group which is addressed elsewhere on this List. On 10 Oct 2016, at 00:36, Phil Corwin <psc@vlaw-dc.com> wrote:

Milton;

With all respect there was no confusion within Council when it unanimously adopted this Resolution, though there does seem to be some confusion in other quarters about what it actually says.

A prior version of the Resolution could have been interpreted as stating a position that budgetary reasons foreclosed the possibility of the Jurisdiction subgroup even considering ICANN organizational jurisdiction. The adopted version instead states the Council’s consensus opinion that such exploration could bust the budget, is untimely, and could be destabilizing. But the Resolved clause immediately prior to the one you quote makes clear that budget increases can be contemplated if the Legal Committee deems them “essential to completion of the CCWG’s work and objectives”. In short, Council has stated an opinion, but that opinion does not bind the subgroup or the legal Committee.

While I agree with your observation that most WS2 subgroups “do not need to hire high-priced lawyers to explore” their issues, Jurisdiction is a conspicuous exception in that any decision to look at alternatives to US incorporation for ICANN would require extensive review of relevant law and regulation in other potential jurisdictions, and any decision to implement a change would likely require significant Bylaws revision.

The Jurisdiction subgroup remains free to do as it wishes, although based upon my participation in recent meetings it seems to have its own growing consensus that ICANN’s own jurisdiction is not a priority issue.

Best, 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

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Wednesday, October 05, 2016 12:49 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion

Colleagues: I respectfully suggest that the Council was confused when it passed this resolution. Indeed, I think this is devolving into one of those arguments where people talk past each other. As so often happens in ICANN, people are confusing procedural and budgetary determinations with substantive conclusions, or perhaps using the former to foreclose decisions about the latter.

Let me take up this aspect of the GNSO resolution: 5. It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, would not likely be supported by this projected budget and, further, that such inquiry should not be undertaken at this time because the new accountability measures are all premised and dependent on California jurisdiction for their effective operation, and any near-term changes in organizational jurisdiction could be extremely destabilizing for ICANN and its community. First, the issue of whether we can afford it is circular. If you don’t think it needs to be done, then you don’t think it is worth spending the money. But the simple fact is that we do not need to hire high-priced lawyers to explore this issue in some depth, a lot of volunteer work takes place in ICANN WGs. Only when we are re-drafting bylaws or actually moving to another jurisdiction do you need the lawyers. And we are unlikely to decide that. There are many ways to economize on the exploratory process.

Second, no one is talking about “near term changes in organizational jurisdiction.” This is a complete red herring. The whole point of the WS1 and WS2 distinction was to separate those things that needed immediate implementation at the time of the transition and those things that don’t. Jurisdiction was deemed to be one that could be put in WS 2; i.e., not immediate. Now that the transition is complete we have time to explore the implications of Calif jurisdiction at our leisure. I don’t see the rush.

Third, if people think it makes no sense to alter California jurisdiction then they can argue that point in this working groups’ deliberations, and if it really does command a consensus, as people are asserting, then that consensus will be quickly realized and that will be that. I myself think that position will easily win the day. However, deciding this in a pre-emptive manner that does not allow the other side to be aired is bad for ICANN’s long-term legitimacy and stability. If we have a full and fair discussion of the issue and decide to remain in California, the issue is settled, forever. If we sweep the issue under the rug and do not allow that consensus to form, then the issue continues to fester.

--MM

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Phil Corwin Sent: Tuesday, October 4, 2016 7:11 PM To: parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Fwd: FW: Adopted motion

The GNSO Council position is responsible, not reprehensible.

And what you label “the incumbent system” is a very large swath of the ICANN community – with this Resolution representing the consensus position of the contracted parties, commercial stakeholder group, and non-commercial stakeholder group. Accountability at any given moment means accountability to the community as it exists at that point in time.

The GNSO position is advisory and not controlling. Under the adopted budget control processes for WS2 CCWG-ACCT matters, it is the Legal Committee, subject to subsequent approval by the Board (which has fiduciary duties to the corporation), that passes judgment on requests for expenditures on outside counsel advice, as well as any request to increase the overall budget beyond the $1.4 million allocated at present.

The Jurisdiction subgroup is presently exploring whether there are any ‘gaps’ between the accountability enforcement powers and California law, with a developing consensus that if there are not then exploring alternate organizational legal jurisdictions for ICANN would not be a prudent use of time or money. (And there are unlikely to be any gaps of significance, given the extreme vetting on this question by outside counsel at the time the measures were developed.)

Anyone is free to participate in the Jurisdiction subgroup and make their best case on any issue being considered by it. But no one is guaranteed a consensus that supports their favored outcome. That’s democracy, not hegemony.

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

No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7797 / Virus Database: 4656/13076 - Release Date: 09/24/16 Internal Virus Database is out of date. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction