[CCWG-ACCT] Proposed text to add to public comment document

Robin Gross robin at ipjustice.org
Wed Apr 29 00:05:47 UTC 2015

As requested in our call today, below is proposed text for various parts of the draft public comment document.

Section 4
P. 18 under "Headquarters"
Strike the last sentence add the end of the paragraph since often times parties are required to waive their rights to pursue their legal rights in a court of law against ICANN, so the final sentence is not accurate about the reality for many.

P. 18 under "Accountability and Transparency Review Teams..."
Add sentence at the end of the paragraph:  "ICANN is still in the process implementing all of the ATRT recommendations."

The last three headlines on p. 19-20 should be deleted.  The "board of directors documentation" policy is a subject of much controversy, which this group has not yet delved into, but will in WS 2 and this text seems misleading.  The "general ICANN operational info" headline sites the DIDP, which is really a "don't disclose" policy, so putting this in here is misleading the public.  The "ICANN board selection process" headline / assertion as an accountability mechanism seems to be desperately reaching in that assertion and it certainly isn't anything this group discussed and passed judgment on.  These last three PR headlines in section 4 should be removed.

Section 6.2
p. 24 - change "ICANN remains accountable" to "ICANN is accountable".
p. 25 - delete phrase "Regulation of content is the role of a sovereign".  That's a debate we never had.

Section 6.5
p. 46 under "Introduction" add:

The CCWG proposes a number of key reforms to ICANN's Request for Reconsideration process, whereby the ICANN Board of Directors is obliged to reconsider a recent decision or action / inaction by ICANN's board or staff, and which is provided for in Article IV, section 2 of ICANN's bylaws.  The key reforms proposed include: the scope of permissible requests has been expanded to include board/staff actions or inactions that contradict ICANN's mission or core values, and the time for filing a Request for Reconsideration has been extended from 15 to 30 days.  Additionally, the grounds for summary dismissal have been narrowed and the ICANN board of directors must make determinations on all requests (rather than a committee handling staff issues).  Another proposed change is that ICANN's ombudsman should make the initial substantive evaluation of the requests to aid the Board Governance Committee in its recommendation, and then requesters are provided an opportunity to rebut the BGC's recommendation before a final decision by the entire board.  More transparency requirements and firm deadlines in issuing of determinations are also proposed.

p. 50 under "Question", add 2 questions: "Are the timeframes and deadlines proposed herein sufficient to meet the community's needs?  Is the scope of permissible requests broad / narrow enough to meet the community's needs?"

p. 51: edit b) as follows:
"Under the designator model, two of the six powers that the community seeks (veto of budget and strategic plan) would require more difficult enforceability provisions than under the membership model, according legal counsel, although they could be created.  The other community powers sought herein regarding community approval of bylaws and board removal present no enforcement barriers under the designator model; however given the enforceability concerns on two desired powers, it is advised that the membership model creates the tightest control on the ICANN board by the community.  In preparing for the environment that emerges following the end of the post-NTIA contract, our task as a CCWG is to strengthen ICANN's accountability, not to allow it to be weakened.  So the status quo is not an option and the community should select either a true membership model or an empowered designator model to achieve that accountability."

p. 51 edit d) 4) as follows:
"Our legal advisors are clear that under California law through this structure, there would be no material increase in the risks and liabilities individual ICANN participants face today"  

p. 52 edit (f) as follows:
"Designators are a construct in California law that can achieve reliable enforcement of 4 of the 6 community powers sought, specifically with respect to community approval or blocking of changes of bylaws and the selection and removal of board members.  There is concern however, regarding the ease and reliability with which the other 2 community powers sought (approval of budget and strategic plan) can be enforced once created under the designator model, according to legal counsel.  Legal counsel further advises that the SOs and ACs organize themselves into unincorporated associations in both corporate governance models, whether a designator or membership structure."

p. 52 edit (i) as follows:
"Because, according to legal counsel, the membership model provides the tightest control of the ICANN board by the community regarding the six community powers explicitly sought by the CCWG, it has been suggested as the Reference Mechanism by the group.

p. 54 add to end of (f):
"It is therefore more closely aligned with the existing structure of ICANN and in keeping ICANN rooted in the private sector."

Section 6.6.2:
p. 55 under "Question" add:
"Would it better to focus on ensuring community input is duly taken into account in the development process leading up ultimate adoption of the budget or strategic plan by the board?"

Section 8:
p. 95 under "Recommendation", edit text as follows:
"The CCWG recommends that the Board adopts a transitional article in its Bylaws which would commit ICANN to confirm the CCWG recommendations, and task the group with creating further enhancements to ICANN's accountability including, but not limited to the following list of issues (see below)."

p. 95 under "Items for WS2":
- Agreed previously to add: Enhancements to ICANN's whistle-blower policy.  
- Suggest to add a review of ICANN's conflict of interest policy as that is a key transparency mechanism.
- I have no idea what is meant by the first item in WS2: "Enhancements to ICANN's accountability based on the law(s) applicable to its actions;"  Maybe just a one sentence explanation would suffice.

That's all for now, folks!  Thanks!  - Robin


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