[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #16 10 March

Tue Mar 10 13:42:58 UTC 2015

Dear all, 

The notes, recordings and transcripts for the CCWG ACCT Session #16 call on 10 March will be
available here:   <https://community.icann.org/pages/viewpage.action?pageId=52890271>
https://community.icann.org/pages/viewpage.action?pageId=52890271

Action Items

ACTION ITEM: Mathieu to report back to the CCWG on conversation with Thomas Schneider in due course.

ACTION ITEM: Jordan to touch base with Keith Drazek on WP1-5B.

ACTION ITEM: Obtain further feedback from the Group during the week. (Feedback on CCT-RT)

ACTION ITEM: Obtain further feedback from the Group during the week. (Feedback on WHOIS)

ACTION ITEM: Review the WP2 document
<https://community.icann.org/download/attachments/52888740/Work%20Item%20List%20and%20Principles%20W
P2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2>
https://community.icann.org/download/attachments/52888740/Work%20Item%20List%20and%20Principles%20WP
2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2  and socialize with your respective
groups before the next call to ensure the Group is fully aligned with WP2 suggestions.

ACTION ITEM: WP1 and WP2 rapporteurs to synchronize to avoid duplication and clarify where the
principles discussion is taking place.

ACTION ITEM: CCWG to review ST-WP work -
<https://community.icann.org/download/attachments/52232556/Applying%20Stress%20Tests%20%5BDraft%20v7
%5D.pdf?version=1&modificationDate=1425965091000&api=v2>
https://community.icann.org/download/attachments/52232556/Applying%20Stress%20Tests%20%5BDraft%20v7%
5D.pdf?version=1&modificationDate=1425965091000&api=v2 

ACTION ITEM: Report on contingencies we cannot mitigate. 

ACTION ITEM: ST-WP to identify stress tests for discussion on 17 March.

ACTION ITEM: WP1 and WP2 to provide legal questions to Legal Subteam.

ACTION ITEM: León to confirm legal subteam decision

 ACTION ITEM: Co-chairs to include agenda item regarding next steps for the group and timeline in
last section of Istanbul agenda. 

Notes

1. A substantial number of colleagues have not submitted their SOIs. Co-chairs have reached out to
them and reiterated the need for accountability and transparency.

2. Activity Reports

WP1

Jordan invited the Group to review the current work status document -
<https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CCWG-ACCT%202015-03-10.pdf
?version=1&modificationDate=1425966317000&api=v2>
https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CCWG-ACCT%202015-03-10.pdf?
version=1&modificationDate=1425966317000&api=v2 and reported that: 1) the WP is making progress on
elements; 2) the WP will discuss outstanding items and how it will arrive at consensus on WP1 call
on Thursday; 3) the WP will have a consensus call agreement meeting next week and circulate
documents for consideration in Istanbul. 

WP1-4A Defining GAC consensus for ICANN 

Mathieu informed the Group that Cochairs have engaged with Thomas Schneider to further discuss the
question raised during the stress test analysis about decision making rules for GAC advice – see
<https://community.icann.org/pages/viewpage.action?pageId=52891502>
https://community.icann.org/pages/viewpage.action?pageId=52891502 and are in the process of finding
a time slot with Thomas to provide more context and have an initial discussion about how to proceed.

ACTION ITEM: Mathieu to report back to the CCWG on conversation with Thomas Schneider in due course.

Work Status

Jordan walked the CCWG through the Work Status spreadsheet -
<https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CCWG-ACCT%202015-03-10.pdf
?version=1&modificationDate=1425966317000&api=v2>
https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CCWG-ACCT%202015-03-10.pdf?
version=1&modificationDate=1425966317000&api=v2 . Orange items will be discussed WP1 meeting #4. WP2
confirmed they will not be conducting work on last table. 

ACTION ITEM: Jordan to touch base with Keith Drazek on WP1-5B.

AoC Reviews

Steve del Bianco walked the CCWG through Competition, Consumer Trust and effectiveness of WHOIS
Policy reviews -
<https://community.icann.org/download/attachments/52888421/Draft%201-%20AoC%20Accountability%20Mecha
nisms%20%5BSteve%20v5%5D.pdf?version=1&modificationDate=1425509039000&api=v2>
https://community.icann.org/download/attachments/52888421/Draft%201-%20AoC%20Accountability%20Mechan
isms%20%5BSteve%20v5%5D.pdf?version=1&modificationDate=1425509039000&api=v2 - and informed the Group
that text is mainly from AoC. Amendments include Review Team designated by Community (SO/AC/SG),
independent advice, access to relevant documents at ICANN and non-disclosure, "consider approval and
begin implementation within 6 months of receipt" language. It was noted that WHOIS review due to
start in 2015 and that EWG work should be considered along with inherent implementation timeline
this could imply. 

Feedback on CCT-RT 

- Start of New gTLDs was subject to heated debate at GAC: it should also take into account lessons
learned, difficulties. 

--> Feedback needed on Kavouss Arasteh's suggestion that subsequent rounds of new gTLDs should not
be opened until the recommendations of the previous review required by this section has been
implemented.

--> Wouldn't we be interfering with other process? We should not use accountability work to force
decision on ICANN about nature of rounds system and whether rounds or not can happen until review
done.   

--> Writing is based on assumption that there will be successive rounds. There might an option where
no rounds but an ongoing flow of applications. This might create inconsistencies in the future. It
is important to have a regular review but no need to have it connected to rounds. 

--> We are trying to perpetuate Aoc into Bylaws. In terms of drafting techniques, it would be
inconsistent to make something work for years to come and highlight one specific event in there. The
idea is to have outcome of reviews needs to be analyzed by Board and taken into consideration for
next steps applicable to all sorts of reviews. This reminder could be placed in section on periodic
reviews. 

--> Word this to not predetermine future rounds and scheduling and leave that up to Committees: i.e.
set up periodic reviews as instructed and indicate requirements arising out of the upcoming review.
-This group enforces accountability - no pre-staging of what responses need be. 

---> Jordan's group will analyze discussion while proceeding with work. No request to embed this
specific point in WS1. If objections, speak up. Let's keep it on radar for discussions and put it in
bucket for WS2. 

- All the elements are not directly related to transition. This is overall accountability. The draft
should go to full GAC for in-depth discussion. 

- Let's not spend too much work on drafting of implementation specifics – legal experts will need to
review. 

- It is a pity we are losing two-step selection process because it is useful for balance. Balanced
composition should be key criteria in selection process. 

ACTION ITEM: Obtain further feedback from the Group during the week. 

Feedback on WHOIS

- Will the WHOIS work stay? It may be worth expanding discussion in light of work on New gTLD
Directory Services.  

- Could just amend the "title" of the review : effectiveness of policies to meet legitimate needs of
LEA, promote consumer trust while taking into account privacy.

ACTION ITEM: Obtain further feedback from the Group during the week. 

WP2

Becky Burr reported that: 1) WP2 sub teams have kicked off; 2) Independent review sub team is
particularly active; 3) Lively discussions in the request for reconsideration sub team; 4) WP2 is
planning to have a completed draft of compact mission on 20 March for in-detail discussion at
Istanbul meeting as well as reports and updates from various groups. Independent Review may be
further along than the others by that point. Becky has circulated resources on international
ombudsman association and hopes to kick off that discussion shortly. 

Feedback:

- Is the issue of binding/non-binding of the Review Committee concluded or being discussed?

--> It is ongoing. Legal input will be needed on this. There seems to be strong support for making
it binding although there are questions about what that means: e.g. binding in what way: sending
decisions back to Board? Important questions that will need to be addressed in context of legal
advice we will receive. 

- What is the legal nature of this compact mission? Will it be binding, actionable?

--> The goal is to establish a standard for what kinds of actions are within ICANN's remit.
Questions that would be relevant in any of the review/redress mechanism are: is the action taken
within ICANN's mission statement; in carrying out its mission statement, has ICANN conducted its
activities in accordance with its commitments to the community to respect multistakeholder model, to
comply with transparency standards, to avoid discriminatory treatment, to reflect diversity etc. It
is a standard against which ICANN's behavior would be measured procedurally. It is the nature of
what people have called a Golden Bylaw meaning that some parts of it could not be changed without
certain safeguards occurring: e.g. threshold for Board, community approval. How it will be binding
and enforced is a question for the group itself. The notion that ICANN could expand its mission
statement is something people are skeptical about. 

--> This goes back to 4 accountability components discussed in Singapore. This compact could be the
test for spilling Board or other actions with sufficient grounds if violation of compact. Reminder
from Bruce setting out mission in articles of incorporation and Bylaws: has that been addressed?

--> It has been forwarded to compact mission sub team and needs to be factored into the process. 

- Compact mission are fundamental guiding principles/constitutional.

- If a review is made binding, what would happen to an appeal to that decision? 

--> There is nothing that would necessarily change GAC advice: we will need to consider what
opportunity GAC would have to respond if someone appealed ICANN's deference to GAC advice on the
grounds that the GAC advice is violated. The general notion in the straw man proposal is that ICANN
would reconsider GAC advice to the extent that that advice was consistent with compact. 

- If constitutional, need to be careful if amend anything as this may have considerable impact. How
did you pick items you are suggesting now in compact mission, what are the inputs you are using?
This will be an important aspect to inform SO/ACs. Need to focus on aspects that generate consensus.

--> A significant part of document already exists in the mission statement and core values in the
current Bylaws. Also reflected are: 1) a provision in section 3 of Bylaws; 2) a significant number
of comments about public interest obligations; 3) comments about institutional excellence,
competence and operational excellence. The WP2 is trying to capture disussions that have come up
starting with Bylaws, general principles and using inventory of suggestions. Various suggestions
about giving ICANN a human rights mission was not included: ICANN is not in the business of content
and giving ICANN a promotion of human rights was problematic. 

ACTION ITEM: Review the WP2 document
<https://community.icann.org/download/attachments/52888740/Work%20Item%20List%20and%20Principles%20W
P2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2>
https://community.icann.org/download/attachments/52888740/Work%20Item%20List%20and%20Principles%20WP
2%20PDF.pdf?version=4&modificationDate=1425965515000&api=v2  and socialize with your respective
groups before the next call to ensure the Group is fully aligned with WP2 suggestions. 

- WP1 is also discussing principles. WP1 and WP2 should synchronize so that it is clear where the
discussion about principles is taking place.

ACTION ITEM: WP1 and WP2 rapporteurs to synchronize to avoid duplication and clarify where the
principles discussion is taking place.

- Is there still a need for a position like the Ombudsman if community powers? And if so, what of
conflicts etc.

--> This should be revisited in light of big picture to determine whether it makes sense. The
question will be answered in course of discussion, we should not prejudge if going in. 

ST-WP

All Stress Tests templates are filled in for consideration.

ACTION ITEM: CCWG to review ST-WP work -
<https://community.icann.org/download/attachments/52232556/Applying%20Stress%20Tests%20%5BDraft%20v7
%5D.pdf?version=1&modificationDate=1425965091000&api=v2>
https://community.icann.org/download/attachments/52232556/Applying%20Stress%20Tests%20%5BDraft%20v7%
5D.pdf?version=1&modificationDate=1425965091000&api=v2 

Caveat that nothing can be finalized until WP1 and WP2 work is completed. The Group is welcome to
join the ST-WP call on Wednesday, 11 March at 11:00 UTC: the WP intends to go through all stress
tests with objective of having documentation reading for CCWG discussion. The WP also intends to
cross-check with stress tests proposed by CWG. 

Steve del Bianco walked through stress tests 3 (litigation arising from existing public policy e.g.
Anti-Trust), 4 (New regulations or legislation) and 20 (Court order is issued to block ICANN's
delegation of a new TLD, because of a complaint by existing TLD operators or other aggrieved
parties). 

Feedback:

- Are we dealing with people who are present and voting?

--> Supermajority 3/4 - 4/5 will a necessary precision. For time being, not defined. It is not based
on quorum. Working towards SO/AC/SG bodies that will be given sufficient time to respond on a
decision that was brought forth to veto a management move: SO/Acs will have to review that and
indicate support or non-support. This would required a documented process. 

- Current draft indicates there is a potential for ICANN community to require ICANN to take action
considered unlawful in certain legislations. If certain legislation is in place and if ICANN were to
violate laws in place, there could be lawsuits. How is that addressed in stress-tests? 

--> Community under a very high standard of supermajority could believe that ICANN should not fear
implementing what was identified by a bottom-up process under pressure of law suits etc. Community
could instruct ICANN what legal counsel believes is not in best interest of corporation. That
possibility could occur in the future. 

--> If US congress comes up with legislation contrary to a certain ICANN policy, are you arguing
that community should have power to force ICANN to act contrary to legislation?

--> These are general community empowerment steps currently under discussion. Unaware of any effort
to constrain or restrict the community's power just because one nation might disagree with
implementation. It is possible that country could adopt measures that would violate notion of single
root. We are going to have pressures. ICANN Board and management will do their best for corporation
and community but community should be empowered to tip the balance towards community's will. 

--> This key aspect would need to be underlined. It is a risk. Is the underlying suggestion that we
should accept the risk and live with it?

--> To increase capability of giving community the accountability and empowerment on how to answer
that risk. Not all stress tests are solvable. It is about giving the community the voice it needs to
decides how to react.  

--> Enable community to have final word.

--> There is a series of mechanisms that are suggested. Thresholds for disagreeing with and moving
Board sit at different levels. Consider whole system in mind. There is a broad array of powers for
community we are proposing here. 

--> Does it conflict with Articles of Incorporation? 

--> One scenario is where Board takes action presumably because law is created somewhere and
informed by GAC representative. Legal counsel advice would be given on whether or not ICANN would
fall under that law but government could take action under law enforcement. There is a difference
between taking Board action on advice received from a government and taking Board action that is in
breach of policy. Board approves community policies – one of mechanisms for community is to create
policies around that law. Consider IRP and request for reconsideration. 

--> It does not change the conclusion. We are improving mechanisms to make them accessible to
community at large. 

--> International law being subordinated to decision is outside mandate. 

--> There can be contradictions between national legal laws. It is outside mandate but should be
considered as part of stress testing. It is not clear we should know what answer is but we should be
aware of potential issue before going out for public comment. It is a key risk for ICANN to find
itself in contradiction with international law.

--> Exercise is not to eliminate risks – it is to ask whether existing accountability measures give
the community the power to hold Board accountable to way it reacts to this stress-test.

ACTION ITEM: Report on contingencies we cannot mitigate. 

ACTION ITEM: ST-WP to identify stress tests for discussion on 17 March.

Legal Subteam

León Sanchez reported that the Legal Subteam held one call last week to incorporate some of the
concerns raised. Although the document was not shortened, language and questions were refined. WP1
and WP2 should provide questions to be incorporated into legal document. The jurisdiction issue was
widely discussed: although all agree that concerns should be addressed, the Subteam also agreed that
this would be an issue for WS2. If addressed as part of WS1, could be facing derailing of whole
process. This agreement will be put forward for CCWG agreement. The CWG has announced engagement
with law firm to provide legal advice. The Legal Subteam will hold a call with one of the
shortlisted firms. The possibility of engaging with same law firm is high but the Legal Subteam
needs to go through own process. 

ACTION ITEM: WP1 and WP2 to provide legal questions to Legal Subteam.

Feedback

- Will question on jurisdiction be put out to the CCWG?

- Explanation about California law limitations are needed.  Get started on the work asap.

- It would simplify work moving forward if CCWG goes with same law firm. Recommendation to go for it
unless good reason not to. 

ACTION ITEM: León to confirm legal subteam decision

- Which areas of enquiry will be in WS1 and WS2? Once legal firm is selected, CCWG should have
opportunity to determine WS1 and WS2.

3. Timeline

Mathieu Weill stated that a common understanding of Istanbul meeting is needed. An agenda has not
been produced yet because the most efffective way will be for Cochairs to build agenda on issues
arising out of WPs and items we will need to reach consensus on so that can leave Istanbul with
understanding of what will be put out for public comment. WP outcomes should be circulated a few
days before the meeting so that the CCWG can review materials before the meeting. Ideas need to
socialized prior the meeting as well, including compact mission, AOC discussion (what should be
included and how), WS1 measures, review and redress. Aware that no legal feedback yet but need to
work on initial feedback we have from past interactions and raise questions with legal doubts. It is
a risk but no other option.

The Group will discuss in Istanbul whether changing timeline or not. Objective is to get as much
work done as possible: i.e. testing level of agreement in Istanbul rather than discussing extending
timelines etc. It is important to focus on work and requirements - if go into details, will derail
timeline. Compact will be on the Istanbul agenda.

ACTION ITEM: Co-chairs to include agenda item regarding next steps for the group and timeline in
last section of Istanbul agenda.  

Feedback:

- We need to be careful about aligning expectations about what final output needs to be and what the
output sent to Board is, what we are going to get public comment on in April etc. By end of Istanbul
meeting, we will know if issues will closed: prepare enough details.

--> There is no reasonable expectations from us to provide fully fleshed Bylaws changes. 

- Public comment is currently 30 days.

4. Proposed Structure of Public Comment Report

The Co-chairs are working on a structure for the report, populating the sections and would welcome
the CCWG's feedback. Thomas Rickert walked the Group through the proposed architecture. 

Feedback 

- We need to be mindful of readability of report: structure report in a way that is readable very
quickly using appendices. Think about best way to get feedback from communities. 

5.  A.O.B 

Next CCWG ACCT Meeting #17 Tuesday, 17 March 19:00 – 21:00 UTC

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