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

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Sun Apr 5 17:03:38 UTC 2015

With respect, if we are going to have a discussion of jurisdiction it at
least needs to be based on facts.  Every country on your list that has
applied for a gTLD has been granted one, not to mention many others, like
North Korea, including all countries on any list maintained by the US
government (and, I might add, the UN) of countries subject to sanction.
The one court case of which I’m aware rejected, pretty summarily, an effort
to force ICANN to change the .nk gTLD registrar. The bogey-man of unilateral
action to divest countries of the gTLDs is pure myth.  




Paul Rosenzweig

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From: parminder [mailto:parminder at itforchange.net] 
Sent: Sunday, April 5, 2015 1:26 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT
Session #18 31 March


Hi All

I am unable to attend the legal team meeting on the 8th, but will be
grateful if the meaning of the term 'community' is sorted out, and if needed
legal advice taken. It is especially important because the any final
proposal should address the intention of the original NTIA declaration to
transition its current functions to the 'global multistakeholder community'
, which to me appears to refer to global public (although, in my view, in an
inadequate manner). If ICANN's enhanced accountability to its SOs and ASs -
or the 'community' engaged with names and numbers functions - is to be taken
to be meeting the needs of transitioning NTIA's role to the 'global
multistakeholder community' or the 'global public', the logic has to be
established and explained. I am right now unable to see the logic. 

Also, the jurisdiction question remains basic. If one prefers concrete
examples rather than a larger political discussion: I think it would be
universal knowledge that as per the applicable US sanctions, no party or
company based in Crimea - and I think also Iran and Sudan - can legally
apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia,
Venezuela, India, or China, and much more easily a number of smaller
nations. Is such a situation tenable? I understand that a number of stress
tests are going to be made on any final proposal. Has the contingency of US
sanctions on different times on different countries, which if fully enforced
would prohibit any US entity to do any kind of business with those
countries, taken into account as one stress test? If not, please do include.
It is one of the most important stress situations. It is easy to see that
any final proposal that keeps ICANN within US jurisdiction will fail this
very real stress test. The only solution is an international jurisdiction
for ICANN - but certainly immunity from the jurisdiction of the one country
which most frequently imposes sanctions and on most number of countries.
This is not a tirade against the US, which has many good points to be said
about it, it is simply a fact that cannot be refused to be faced.


On Friday 03 April 2015 02:37 PM, parminder wrote:

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 jurisdiction constitutes 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.

(www.ITforChange.net <http://www.ITforChange.net> ) 

On Wednesday 01 April 2015 10:05 PM, Brenda Brewer wrote:

Dear all, 


The notes, recordings and transcripts for the CCWG ACCT Session #18 call on
31 March will be available here:

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

*        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

*        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.


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.       


- 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

*        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

- 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

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. 


- 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. 


- 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

--> 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.  


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

- 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.  


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

- 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.


- Informal meeting held in Istanbul to discuss #21

- 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. 


- 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 -


- 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

- Considering organizing CCWG meeting on 19 June - will liaise with ICG
(conflicts with meeting)

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.


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