[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March

parminder parminder at itforchange.net
Fri Apr 3 09:07:12 UTC 2015

Dear All,

I request one clarification, and permission to make one comment.

I hear the term 'community' a lot in these discussions, including in the
below mentioned notes/ transcript document. The term has been used to
imply something that is supposed to be able to have agency and can
perform clear tasks - for instance, of recalling ICANN board members,
and possibly appointing members of the appeals and review teams. We also
see the use of the term 'community mechanism'. At some point it appears
that this community is basically the SOs and ACs (Icann's supporting
organisations and advisory committees) . Obvious greater precision is
required about the specific legal/ political meaning of the term
'community' as used in these documents/ discussions, especially since
what is being attempted here is a new institutional mechanism of global
importance. Inter alia, I will like to know if this community is the
same as the 'global multistakeholder community' (itself a very uncles
term) mentioned in the original NTIA statement on IANA transition.
Finally, when we are looking at enhancing accountability of ICANN, is it
accountability to global public, or to some specific community, and if
the latter, how is it defined. One would think that is the foremost and
primary question to be sorted out, and made clear, beforehand, on the
basis on which an accountability mechanism can be built.

The comment that I wish to make is about the discussions on the issue of
'jurisdiction' .

At many or most points, I see 'jurisdiction' seen as merely an enabling
framework, spoke of as a somewhat technical -  'neutral' and more or
less given - construct, that enables Internet's technical and
operational management to take place. As a body of some kind of ideal
standard private law that supports and enable private contracts. Now,
firstly, a 'jurisdiction' - even in its bare minimum private
transactions enabling aspect - is never a neutral and static thing, and
it can and does change as per political understanding and priorities of
a political community. The even more important point is that any
jurisdictionconstitutes a public accountability mechanism, especially by
means of its public law. The law incorporates the political priorities
of the corresponding political community (country) and through the
backing of coercive force extracts accountability from all people and
institutions subject to that jurisdiction, as currently US law extracts
public accountability from ICANN as a UN non-profit. 

Jurisdiction is therefore directly related to public accountability, and
cannot be a minor sub point in the discussion. Lines of thinking like
expressed in a conclusions part below as 'topic of jurisdiction comes
into scope when a requirement we have for accountability cannot be
achieved within California jurisdiction ' therefore worries me a lot.
Further, it is not only a question of whom a jurisdiction (here, the US)
responds to, but the prior question is which political community forms
and informs a jurisdiction (here the US people). I therefore cannot see
how the issue of ICANN's accountability to the global public can be
addressed without making it subject to international law, and making it
immune to the laws of the country of its physical presence. That remains
the primary question and issue with regard to ICANN's accountability.

Lastly, as a global group, presumably working on the behalf of the
global public, this WG and other similar ones need to come up with a
solution and institutional mechanism which best serves the interests of
the global public. It need not be second guessing what would be ok with
the US government and what not - that is for the US government to think.
After all, this processes merely provides the recommendation for the
best model, the final decision is still US government's to make. One can
still stick to the five conditions set by the US government to making
the oversight transition, and recommend incorporation of ICANN under
international law with host country immunity. Subjecting ICANN to the
jurisdiction of international law is the first and the basic question in
terms of its global accountability. Rest will rather more easily fall in
place once we have decided on this all-important matter.


On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote:
> Dear all, 
> The notes, recordings and transcripts for the *CCWG ACCT **Session
> #1**8*call on 31 March will be available
> here: https://community.icann.org/pages/viewpage.action?pageId=52893477
>     *Action Items*
> ·        *ACTION ITEM: Legal subteam call details to be posted on
> mailing list for anyone to join*
> ·        *ACTION ITEM: Raise with legal advisors (through legal sub
> team):*
> ·        *ACTION ITEM: Cochairs to specifically review notes on
> jurisdiction.** *
> ·        *ACTION ITEM: Review new version of mission statement later
> this week.*
> ·        *ACTION ITEM: WP2 to refine the proposals for reconsideration *
> ·        *ACTION ITEM - Cochairs to send correspondence to CWG, Board,
> ICG and COs (transparency) on expected timeline and engage with
> relevant stakeholders*
> ·        *ACTION ITEM - CCWG to liaise with ICG Chairs*
> ·        *ACTION ITEM - Engagement plan to be addressed on mailing
> list (in interest of time).*
> ·        *ACTION ITEM – Follow up on GAO matter on mailing list.***
>     *Notes*
> /These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript /
> 1. León Sánchez reminded the group that outstanding Statements of
> Interest need to be filed.
> /*Legal Subteam Methods & Updates*/
> León Sánchez reported that Adler & Colvin - Sidley & Austin were on
> the call and would speak to documents.  
> Working methodologies were elaborated to coordinate work across
> firms/groups. León Sánchez noted that the legal sub team remains
> open. A call for agreement was made: does the CCWG feel comfortable
> with executives from legal subteam acting as liaison between firms and
> larger group? It was stressed that the subset of Subteam would have
> obligation to collect any concerns or questions from larger group and
> relay them to lawyers. It was commented that questions or concerns
> from group should be raised on main CCWG-ACCT mailing list.       
> Feedback:  
> - All correspondence between lawyers and subgroup should be open and
> transparent. Agree that should not be entire team but anyone should be
> able to join the list on read-only model
> --> This is what is in place. Anyone who wishes to join the legal
> subteam can join the list on read-only mode. Only executive Subteam
> members have posting rights.
> - When posting concerns on main mailing-list, include header.
> CONCLUSION: Working Methods are adopted - this issue is closed. 
> *_Adler & Colvin_*
> - Preliminary responses to 10 questions
> Q1 relates to available legal mechanisms. We reviewed structures
> available to ICANN. Different models of governance. Likely will end up
> using membership or designators.  
> ·         
> ·        Statutory members (entities or individuals) would elect
> directors and would be given bundle of rights (positions of directors
> can vary); 
> ·        Self-perpetuating Board may not be something you will use; 
> ·        Designators:  appoint seats but no constellation of
> membership rights, more a matter of drafting a structure;
> ·        Neither members nor designators have fiduciary duty unlike
> directors;
> ·        California law principles designates Board as ultimate
> authority; 
> ·        If members or designators are unhappy with Board performance,
> they can remove particular director or Board;
> ·        Possible to have an executive committee (highly engaged) of a
> larger group. The larger group would be entitled - in discharging
> duties -  to rely on smaller group i.e. the superBoard option. Certain
> authorities would have to be exercised by full group. 
> - This document will be reviewed in detail on Wednesday, 1 April
> during legal subteam call.
> - Q2 Responsibilities and liabilities (fiduciary).
> - Q3 Bottom-up process for decision-making (vs. top-down) -
> identifying issues we see in defining bottom-up group (more
> empowered): what decisions it will have, who is in the group etc.
> - Q4 Ways to prevent ICANN from experiencing mission drift e.g
> requirements for amending bylaws or articles, designators to consent. 
> - Q5 Fiduciary duties: what they are and who has them. How do you
> reconcile representing constituency and acting in public interest?
> - Q6 Board bound to accept IRP decisions e.g. contract or super board
> structure.
> - Q7 Attorney General: unlikely unless assets are misused.
> - Q8 How incorporate of AoC into bylaws.
> - Q9 Interim mechanisms for caretaker Board: California law is not
> designed to accommodate that but suggested mechanisms to take this on.
> A&C has reservations about spilling entire Board and advises that
> group reconsider.
> - Q10 Suggested steps to manage litigations risks.
> ACTION ITEM: Legal subteam call details to be posted on mailing list
> for anyone to join
> *_Sidley & Austin_* 
> - There seems to be overlap between questions asked to A&C and S&A. 
> - CCWG has a lot of tools to accomplish what it needs – how to use
> them needs to be determined. Through expressed provisions in articles
> and bylaws, there are mechanisms you could use e.g. to influence Board
> composition, limit ability from Board to limit changes to Bylaws,
> decisions around budget etc. With respect to mission creep: bylaws
> and articles can be used to ensure purpose is met. 
> - A jurisdictional review of every place in world where you
> could reincorporate is premature and would be an expensive endeavor.
> Any state in USA would work. California is a great place to focus and
> cannot think of other state that would be automatically more
> advantageous. Switzerland has a structure that include membership
> structure we can look into, if needed. 
> - Antitrust: it is an issue you have to be mindful of but no
> significant concerns. 
> /*WP2 Fundamental Bylaws*/
> CONCLUSION: There would be provisions in bylaws where any change would
> require affirmative approval with specific procedure requirements from
> community. Scope of bylaws would include: core mission of ICANN,
> provision creating special bylaws, independent review panel and powers
> to change bylaws and spill board. 
> /*Jurisdiction*/
> - Considering high sensitivity of topic, CoChairs not comfortable
> using first reading to include it in the Istanbul statement.
> - Call for agreement on Istanbul conclusions. We were not tasked to
> change jurisdictions of ICANN but to enhance its accountability.
> Question is whether ICANN's accountability would be
> enhanced depending on law applicable to its actions (legal input
> useful here). We concluded that 1) we would not be making specific
> recommendations regarding jurisdiction in WS1 ; 2) we would consider
> it in our scope as a topic when a requirement we set cannot be met or
> achieved within California jurisdiction ; 3) we would rephrase
> question as a problem statement we would use within WS2. 
> _Feedback_:
> - A change of jurisdiction is not appropriate for WS1 but an
> expectation has been set by ICANN CEO about importing the AoC
> obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to
> to be amended to incorporate AoC obligations including #8, that needs
> to happen through CCWG work.
> --> Anything that would incorporate AoC might be redundant with
> existing mechanisms (Bylaws, articles). Legal group could look into this. 
> - Is there something that we have identified that cannot be
> accomplished according to California law?
> - This is unnecessarily bringing negative political attention onto
> this work and transition. Is anyone driving this issue for it to be a
> must-be? Where are those questions originating 
> --> There were questions raised whether California law would constrain
> accountability. No reasons to believe there is something that cannot
> be achieved outside California law. The question whether ICANN can
> remain accountable to global community if remains in California
> is being brought up. 
> --> Jurisdiction question are being assigned to lawyers and expecting
> answers shortly. Included initial questions in legal scoping document
> as well as adding input from Jorge Cancio on whether there are
> provisions on jurisdiction issues. 
> --> Input from Pedro (Brazil), Arun
> --> Jurisdiction is #1 question within French Business constituency
> and civil society.
> -  Jurisdictional question is not necessarily centered around where
> the corporation is based, rather legal questions governments may have
> for which they could not come to US court. They are looking for method
> of raising legal issues that are not necessarily restricted to US
> courts but rather involving international arbitration decision-making
> that is adequate at government level. T ere is no appropriate
> mechanism for governments, international bodies to bring actions,
> questions, issue before appropriate court of judgement. We are
> conflating these two issues. Moving ICANN is not a WS1 issue but
> addressing questions of appropriate mechanism for others to
> get jurisdictional response is perhaps a question that needs to be
> tackled. 
> --> Let's focus on facts and requirements instead of second-guessing
> political implications.   
> --> Sovereignty concerns from governments when dealing with national
> courts 
> --> Who are the people that can approach the US court? Question of
> which legal jurisdictions provide for ideal balance has not been
> answered by Sidley & Austin  - answer needed. 
> - It remains to be discussed within WS1 whether AoC article 8 will be
> incorporated into Bylaws
> CONCLUSION: Discussion whether to incorporate article 8 from AoC still
> generates questions. Still in agreement that our goal is to enhance
> ICANN's accountability and therefore the topic of jurisdiction comes
> into scope when a requirement we have for accountability cannot be
> achieved within California jurisdiction. Based on potential
> requirements that could not be achieved in WS1, the jurisdiction issue
> might be pursued within WS2.
> ACTION ITEM: Raise with legal advisors (through legal sub team):
> ·        What extra accountability would be brought to community if
> AoC article 8 was incorporated;
> ·        Balance of jurisdiction need to further explored. 
> ACTION ITEM: Co-chairs to specifically review notes on jurisdiction.  
> /*WP1*/
> _Community Mechanism_
> - WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC – quick
> drafting will be done to tighten up options that were discussed in
> Istanbul in regards to community mechanisms and see if can come to
> understanding to debate with lawyers and CCWG. 
> - CONCLUSION: there was agreement that voting would be involved and
> transparency would be needed. Except for Board recall, votes would not
> be directed by SO/ACs. SO/ACs would be the basis for determining who
> has vote. For all powers, there was a common ground that there is no
> specific cause for a decision to be made. 
> _AoC reviews _
> - Migrating 4 reviews into Bylaws with suggested improvements.
> - Discussion point on ways to appoint members of Review Team
> (intention that community selects representatives but comments about
> diversity balance). 
> - CONCLUSION: Increased transparency features (access to documents,
> annual report on accountability & transparency), potential for
> incorporating new reviews, when necessary
> /*WP2 mission & Core Values */
> -  A revised document was circulated to reflect input from Istanbul
> (substance and format). 
> - We will circulate a revised draft which compares existing Bylaws
> with proposed changes and incorporates input.  
> ACTION ITEM: Review new version of mission statement later this week.
> /*WP2 Independent Review*/
> No further discussion on this item. 
> CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be
> accountable to all stakeholders with provisions against frivolous
> claims. There were a number of items to look at how binding it could
> be, subject to legal advice. 
> /*W2 Reconsideration Process */
> - Issue of standing: there was a thought to amend who has proper
> standing to file reconsideration request i.e. widen its scope and
> include any party that is impacted by ICANN's decision or inaction. 
> - Standard of review: Amend standard to include reexamination of
> underline merits of arguments/decisions and broaden type of decisions
> that can be reexamined; amend when Board Governance Committee may
> dismiss a request; clarify that a frivolous claim amounts to a cost
> that would extraordinary in nature; word changes (actual to notice etc); 
> - Composition: Less reliance on legal department to guide Board
> Governance Committee on its recommendations and recommend more Board
> members engagement early on in decision amend rules so that Board
> governance committee cannot make final decisions without fuller Board
> briefing and discussion of issues; call for more transparency in
> decision-making process. 
> - Precedential value: Ability to challenge precedential value
> of previous decisions without reopening old cases.  
> - Accessibility: Extending time deadline for filing reconsideration
> request to 60 days from when requestor learns decision. 
> - Implementation: Follow-up process regarding implementation of
> the decision. 
> - Process concerns: Briefing materials sent to Board should be
> provided, subject to confidentiality; final decisions should be issued
> sooner; criteria for urgent requests should be broadened.  
> _Feedback_: 
> What is the interaction between IRP and reconsideration request? Do we
> need to articulate how it connects?
> --> In order to get IRP, reconsideration request would need to be
> filed. We should spell this out,
> --> It depends on what the substantive work of the independent review,
> what standards of evaluation is (exhaustion of remedies).
> Clarification needed.  
> - Are we broadening scope to go beyond (new information, facts) -
> would this tie into violation of Bylaws standard or other standard?
> --> Standards (put in Bylaws) would be standards against which
> reconsideration requests could be measured to see if Bylaws were
> actually followed. Reconsideration request avenue would be available
> to rectify situation. 
> - Potential paradox between extending timeline for filing and timely
> issuance of decisions.
> ACTION ITEM: WP2 to refine the proposals for reconsideration 
> - Call for agreement on whether this is WS1
> CONCLUSION: Reconsideration process is WS1.
> /*ST-WP*/
> - Informal meeting held in Istanbul to discuss #21
> (delegation/redelegation).
> - Minor edits were incorporated since Istanbul. Weekly stress test
> meetings will start again next week. 
> ACTION ITEM: Staff to circulate ST-WP call invites.
> - Edits added to # 21, added new stress.
> - Veto (supermajority) is distinct from IRP and reconsideration. 
> - CWG raised stress testing comments - Cheryl and Avri served as
> liaison between CWG and CCWG on this and will work with leads on RfP
> 4. CWG took on board some of our stress tests to test against some of
> their proposals. 
> /*Timeline*/
> - Target date for finalizing recommendations is April 20.
> - Need to provision for 2 public comment periods.
> - ccNSO Council has confirmed that endorsement of proposals would
> require a face-to-face ccNSO meeting so that all members could attend
> and discuss. 
> - Berry Cobb walked the group through timeline update
> - https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_v0.9.6.5.pdf?version=1&modificationDate=1427802208876&api=v2 
> _Feedback_:
> - Public comments before SO/AC endorsements.
> - Public comments could not amend outcome unless go back to SO/ACs.
> - What is standard length of public comment period? When should be
> deadline to publish prior to meeting? What if one of COs want changes
> to document delivered on October 1: how will we deal with that
> and what will consequences be? 
> -> Objective is to get input from SO/ACs at each public comment phase. 
> -> 40 days by default but shortened subject to approval by 2
> global leaders. Given aggressive timeline, attempting 30 days subject
> to change. 
> - Issuing new document between comment period and Buenos Aires is not
> a good idea. Suggestion: have the public comment period in April/May
> analyzed to prepare for discussions in Buenos Aires and prepare next
> draft using input received. Prepare a document in between is not
> practical. Depending on nature of feedback, we will be able to prepare
> second draft with little effort or will need F2F to re-engineer. How
> can CWG finalize its proposal without finalized accountability proposal? 
> - Set aside face-to-Face meeting right before Buenos Aires to analyze
> comments received and finalize after Buenos Aires.
> - Need to be aware there is a significant difference between
> expectations set on group by some of SO/ACs, Board etc. 
> ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and
> COs (transparency) on expected timeline and engage with relevant
> stakeholders
> - CoChairs will touch on expected timeline when coordinate with CWG
> Cochairs. 
> - Considering organizing CCWG meeting on 19 June - will liaise with
> ICG (conflicts with meeting)
> ACTION ITEM - CCWG to liaise with ICG Chairs 
> /*Engagement */
> ACTION ITEM - Engagement plan to be addressed on mailing list (in
> interest of time).
> /*AOB*/
> ACTION ITEM – Follow up on GAO matter on mailing list.
> _______________________________________________
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