[CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24 March 2015)
Kieren McCarthy
kierenmccarthy at gmail.com
Fri Mar 27 01:37:27 UTC 2015
I should really add that there was a *point* to the ultimately fruitless jurisdiction conversations in the past: they demonstrated some level of willingness on the part of ICANN to consider the international audience.
A cynic would say it was a purely cynical exercise. I suspect we are seeing a repeat of that approach. What I wouldn't like to see is people who are actually working on real reforms be sucked into that conversation and so waste valuable time.
Kieren
-
[sent through phone]
On Thu, Mar 26, 2015 at 4:42 PM, Kieren McCarthy <kierenmccarthy at gmail.com>
wrote:
> I do get the sense that a jurisdictional discussion is going to be a waste of valuable time at this point, especially when it comes to ICANN.
> There may be good sense in moving an IANA Contract Co. to Geneva at some future point (if that's the way this all goes) but to try to do so now when a transition requires U.S. Government sign off seems reckless and/ or pointless.
> It may be worth shifting to the other coast (Virginia would be pro ICANN) as a way to stop ICANN monkeying around with California law arguments, but with independent legal advice that blocking effort should also disappear.
> But realistically we are going to end up with a U.S. solution. Why bother pretending otherwise?
> I recall the previous two times the community looked at this whole issue. In fact I recall flying around the world and chewing up inordinate amounts of time on it (Geneva, Montevideo, can't remember where else). No one ever believed it would really happen and no one really cared that much either, except maybe the Russians.
> It's navel gazing frankly and I'd rather see more time spent on real accountability measures.
> Kieren
> -
> [sent through phone]
> On Thu, Mar 26, 2015 at 11:24 AM, Jacob Malthouse <jacob at bigroom.ca>
> wrote:
>> I'm no lawyer, but as a layperson thinking about whether ICANN should stay
>> based in California or another jurisdiction, it strikes me that the only
>> way to think about this is by considering California law (or attorney
>> general's office) as a final accountability mechanism, and by then
>> exploring that via a stress test and/or then comparing it to other
>> jurisdictions. It makes me wonder if the attorney general of California
>> involved in this effort at all? Could they be? Perhaps as part of the
>> stress-testing.
>> Along those lines, even if you made an IRP binding on all parties, you'd
>> still have to explore what happens if an entity to tried to go to court
>> regardless, and then where that ends up via the courts.
>> I don't have a sense of cost/benefit here, other than California seems to
>> have a reputation for having a lot of lawsuits (for better or worse) and
>> those lawsuits tend to be expensive - though maybe not more so than
>> anywhere else in the USA - so it gets back to the question of whether we
>> have an accessible redress mechanism if ICANN is based in California vs
>> elsewhere in the USA vs elsewhere.
>> Looking at the litigation documents page, it looks like ICANN has been sued
>> pretty much all over the USA (
>> https://www.icann.org/resources/pages/governance/litigation-en), which
>> might be seen as a reason to keep it based in the US, as over time the
>> precedents should help provide an additional layer of security against
>> improper lawsuits, whereas if you move it you'd be starting from scratch
>> presumably.
>> Best, Jacob.
>> Jacob Malthouse
>> Co-founder & Director, Big Room Inc.
>> 778-960-6527
>> www.bigroom.ca
>> On 26 March 2015 at 09:48, Steve DelBianco <sdelbianco at netchoice.org> wrote:
>>> Phil,
>>>
>>> That is not old ground, but rather ground we are now working diligently.
>>>
>>> The CCWG discussed how to bring all 4 AoC reviews into the bylaws this
>>> week in Istanbul. The 5th draft proposal is here
>>> <https://community.icann.org/download/attachments/52888421/Draft%201-%20AoC%20Accountability%20Mechanisms%20%5BSteve%20v5%5D.pdf?version=1&modificationDate=1425509039000&api=v2>,
>>> and I will update soon with suggestions that surfaced this week.
>>>
>>> The AoC is presently in full effect, so Review 9.3 will begin this year
>>> and staff is planning for it. You should count on that review beginning
>>> soon.
>>>
>>> As for registries disclosing wholesale prices, I think you know that an
>>> independent group would compile that data *without* identifying the
>>> registry.
>>>
>>> —
>>> Steve
>>>
>>> From: Phil Buckingham
>>> Date: Thursday, March 26, 2015 at 12:35 PM
>>> To: Steve DelBianco, 'Jordan Carter', 'Greg Shatan'
>>> Cc: 'Accountability Cross Community'
>>> Subject: RE: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24 March
>>> 2015)
>>>
>>> Steve,
>>>
>>>
>>>
>>> I am sorry I’m playing catch up, having not been in Istanbul.
>>>
>>>
>>>
>>> So what is the status on the AOC requirements, particular regarding 9.3 (
>>> I think) – the review of Round 1 of the gTLD programme.
>>>
>>>
>>>
>>> As I am sure you are aware, as a fellow partipicant on the Implementation
>>> Advisory Group , Consumer Choice , Consumer Trust and Competition , that
>>> yesterday ICANN announced that a company had been selected to conduct
>>> (two) economic studies, to start immediately.
>>>
>>> The implications are huge for the new TLD Registries as they will have to
>>> disclose internal pricing of registrations and, quite frankly, most are not
>>> operationally ready.
>>>
>>>
>>>
>>> One assumes that 9.3 would be an automatic transfer into the expanded
>>> ICANN bylaws.
>>>
>>>
>>>
>>> Sorry, if I am going over old ground, already agreed in Istanbul.
>>>
>>>
>>>
>>> Regards,
>>>
>>>
>>>
>>> Phil
>>>
>>>
>>>
>>> Phil Buckingham
>>>
>>> CEO, Dot Advice Limited
>>>
>>>
>>>
>>>
>>>
>>> *From:* accountability-cross-community-bounces at icann.org [
>>> mailto:accountability-cross-community-bounces at icann.org
>>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Steve
>>> DelBianco
>>> *Sent:* 26 March 2015 15:13
>>> *To:* Jordan Carter; Greg Shatan
>>> *Cc:* Accountability Cross Community
>>> *Subject:* Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24
>>> March 2015)
>>>
>>>
>>>
>>> Keep in mind that either ICANN or NTIA may cancel the AoC
>>> <https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-en?routing_type=path>
>>> with just 120 days notice. That’s why we created Stress Test #14, which
>>> suggests the need to bring AoC commitments and Reviews into ICANN Bylaws.
>>>
>>>
>>>
>>> *Stress Test #14: *ICANN or NTIA choose to terminate the Affirmation of
>>> Commitments. (AoC) ICANN would no longer be held to its Affirmation
>>> commitments, including the conduct of community reviews and required
>>> implementation of review team recommendations.
>>>
>>>
>>>
>>> *Existing Accountability Measures:*
>>>
>>> The AoC can be terminated by either ICANN or NTIA with 120 days notice.
>>>
>>> As long as NTIA controls the IANA contract, ICANN feels pressure to
>>> maintain the AoC.
>>>
>>> But as a result of IANA stewardship transition, ICANN would no longer have
>>> the IANA contract as external pressure from NTIA to maintain the AoC .
>>>
>>>
>>>
>>> *Proposed Accountability Measures:*
>>>
>>> One proposed mechanism is community challenge to a board decision, such
>>> as referral to an Independent Review Panel (IRP) with the power to issue a
>>> binding decision. If ICANN canceled the AoC, the IRP mechanism could
>>> enable reversal of that decision.
>>>
>>>
>>>
>>> Another proposed measure is to import AoC provisions into the ICANN
>>> bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be
>>> amended to include AoC commitments 3, 4, 7, and 8, plus the 4 periodic
>>> reviews required in paragraph 9, or other provisions that are deemed
>>> essential by the community.
>>>
>>>
>>>
>>> If ICANN’s board proposed to amend the AoC provisions added to the bylaws,
>>> another proposed measure would empower the community to veto that proposed
>>> bylaws change.
>>>
>>>
>>>
>>> See all stress tests here
>>> <https://community.icann.org/download/attachments/52232556/Applying%20Stress%20Tests%20%5BDraft%20v8%5D.pdf?version=1&modificationDate=1426877855000&api=v2>
>>> .
>>>
>>>
>>>
>>>
>>>
>>> —
>>>
>>> Steve DelBianco
>>>
>>> Executive Director
>>>
>>> NetChoice
>>>
>>> http://www.NetChoice.org <http://www.netchoice.org/> and
>>> http://blog.netchoice.org
>>>
>>> +1.703.615.6206
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *From: *Jordan Carter
>>> *Date: *Thursday, March 26, 2015 at 10:37 AM
>>> *To: *Greg Shatan
>>> *Cc: *Accountability Cross Community
>>> *Subject: *Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24
>>> March 2015)
>>>
>>>
>>>
>>> Thanks Greg, Phil.
>>>
>>>
>>>
>>> I am confident we are aware in the CCWG that we can't unilaterally amend
>>> the AOC. However, it is also clear that we can choose which bits we propose
>>> to incorporate in the ICANN Bylaws. Not incorporating some bits has no
>>> effect on the existing agreement between ICANN and the United States
>>> government.
>>>
>>>
>>>
>>> I would note that in respect of the jurisdiction conversation, we have a
>>> multistakeholder process at work in designing this transition.
>>>
>>>
>>>
>>> If the question of a "sealed for all time" jurisdiction question derails
>>> the transition - either by meaning the community can't accept ICANN being
>>> locked in California forever and thus declines to agree a transition, or
>>> the United States not accepting a transition that doesn't include that lock
>>> - then that will be the outcome of the multistakeholder process. The NTIA
>>> did not define perpetual U.S. presence as a requirement for the transition,
>>> after all.
>>>
>>>
>>>
>>> Certainly I hope that this dilemma does not prove to be a breakdown point.
>>>
>>>
>>>
>>> I say all the above as an individual who thinks the California
>>> jurisdiction works just fine for everything we need to do now, and can
>>> foresee for the future.
>>>
>>>
>>>
>>> best,
>>>
>>> Jordan
>>>
>>>
>>>
>>>
>>>
>>> On 26 March 2015 at 16:26, Greg Shatan <gregshatanipc at gmail.com> wrote:
>>>
>>> I second Phil's email and hope that some clarity can be brought to those
>>> unable to participate in the entire CCWG meeting.
>>>
>>>
>>>
>>> I also want to remind the CCWG that ICANN cannot unilaterally amend the
>>> Affirmation of Commitments. The AoC can only be amended by mutual consent
>>> of the parties. The U.S. jurisdictional requirement will be there until
>>> amended by the parties, or the AoC is terminated. If we want to get into
>>> discussing terminating the AoC, that is a whole other discussion, and an
>>> immense step to consider.
>>>
>>>
>>>
>>> Greg Shatan
>>>
>>>
>>>
>>> On Thu, Mar 26, 2015 at 10:08 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
>>>
>>> I see from the post below that this issue of ICANN’s future jurisdiction
>>> has become “a most delicate matter” and remains unresolved and subject to
>>> further discussion within the CCWG.
>>>
>>>
>>>
>>> This is a pivotal and very important issue, as the accountability
>>> mechanisms are being designed (with the assistance of two outside law
>>> firms) to be consistent with California law and may not operate effectively
>>> within another legal jurisdiction context. Further, if there is not a
>>> commitment to remain within US jurisdiction for the foreseeable future (as
>>> CEO Chehade pledged in Congressional testimony last month) it will raise
>>> significant political barriers to NTIA approval of and Congressional
>>> acquiescence to a final transition and accountability package.
>>>
>>>
>>>
>>> For those of us unable to participate remotely in all the CCWG discussions
>>> earlier this week, it would be most appreciated if more specificity could
>>> be provided as soon as possible as to what the various perspectives are on
>>> this matter and how it is proposed to resolve them, since the final
>>> determination would seem to be a rather binary decision – either the AOC
>>> provision committing to US jurisdiction is incorporated within the Bylaws,
>>> or it is not.
>>>
>>>
>>>
>>>
>>>
>>> *Philip S. Corwin, Founding Principal*
>>>
>>> *Virtualaw LLC*
>>>
>>> *1155 F Street, NW*
>>>
>>> *Suite 1050*
>>>
>>> *Washington, DC 20004*
>>>
>>> *202-559-8597 <202-559-8597>/Direct*
>>>
>>> *202-559-8750 <202-559-8750>/Fax*
>>>
>>> *202-255-6172 <202-255-6172>/cell*
>>>
>>>
>>>
>>> *Twitter: @VlawDC*
>>>
>>>
>>>
>>> *"Luck is the residue of design" -- Branch Rickey*
>>>
>>>
>>>
>>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Thomas
>>> Rickert
>>> *Sent:* Thursday, March 26, 2015 6:22 AM
>>> *To:* Pedro Ivo Ferraz da Silva
>>> *Cc:* Accountability Cross Community
>>> *Subject:* Re: [CCWG-ACCT] RES: Cochairs Statement - Istanbul (23-24
>>> March 2015)
>>>
>>>
>>>
>>> Dear Pedro,
>>>
>>> you are correct. We should have mentioned that we discussed it. As this is
>>> a most delicate matter and since we agree we would suggest language to
>>> frame the next steps (you will remember we had not agreed on concrete
>>> language), I suggest we use the next upcoming opportunity to share the
>>> progress with the community when we have an agreed language on the matter.
>>>
>>>
>>>
>>> Thanks for your understanding and for your thoughtful contributions during
>>> the meeting.
>>>
>>>
>>>
>>> Best,
>>>
>>> Thomas
>>>
>>>
>>>
>>> Am 26.03.2015 um 11:17 schrieb Pedro Ivo Ferraz da Silva <
>>> pedro.ivo at itamaraty.gov.br>:
>>>
>>>
>>>
>>> Dear Alice, CCWG-colleagues,
>>>
>>>
>>>
>>> Thanks for the links. I just regret the fact that the CoChairs have missed
>>> to refer to the important debate the CCWG has held with respect to the way
>>> moving forward on the issue of jurisdiction. As Mathieu Weill mentioned
>>> during the second day, this is one of the main issues of concern of
>>> individuals outside this group and I believe the community deserved at
>>> least to be briefly informed about this subject.
>>>
>>>
>>>
>>> Regards,
>>>
>>>
>>>
>>> Pedro
>>>
>>>
>>> ------------------------------
>>>
>>> *De:* accountability-cross-community-bounces at icann.org [
>>> accountability-cross-community-bounces at icann.org] em nome de Alice Jansen
>>> [alice.jansen at icann.org]
>>> *Enviado:* quarta-feira, 25 de março de 2015 12:13
>>> *Para:* accountability-cross-community at icann.org
>>> *Assunto:* [CCWG-ACCT] Cochairs Statement - Istanbul (23-24 March 2015)
>>> Dear all,
>>>
>>> This is to inform you that the CoChairs statement (pasted below) may be
>>> found at: https://www.icann.org/news/announcement-2015-03-25-en
>>>
>>> A video interview with CoChair Thomas Rickert is also available - see:
>>> https://www.youtube.com/watch?v=vVof6v0MguE
>>>
>>> These links will be added to your wiki pages.
>>>
>>> Thanks,
>>>
>>> Best regards
>>>
>>> Alice
>>>
>>>
>>> CCWG-Accountability Co-Chairs Statement Istanbul, 25 March 2015 | Thomas
>>> Rickert, León Sánchez & Mathieu Weill
>>>
>>> Members and participants of the Cross Community Working Group on
>>> Enhancing ICANN Accountability (CCWG-Accountability)
>>> <https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Accountability> met
>>> in Istanbul, Turkey, on 23-24 March 2015.
>>>
>>> The meeting
>>> <https://community.icann.org/pages/viewpage.action?pageId=52890276> was
>>> attended in-person by 42 members and participants. A number of participants
>>> and observers joined the meeting remotely using the virtual meeting room.
>>> Three Advisors
>>> <https://community.icann.org/display/acctcrosscomm/Advisors> also
>>> participated.
>>>
>>> Guided by the four basic building blocks
>>> <https://community.icann.org/display/acctcrosscomm/Building+Blocks> identified
>>> at ICANN 52 in Singapore, the group further discussed and refined
>>> accountability mechanisms that need to be either implemented or, at least,
>>> committed to before the transition of the IANA stewardship can take place.
>>>
>>> The meeting made progress on three main areas:
>>>
>>> · Enhancing ICANN's Mission and Core Values;
>>>
>>> · Strengthening the existing independent review process;
>>>
>>> · Mechanisms for community empowerment.
>>>
>>> Specifically, the group discussed changes that should be made to the
>>> Mission and Core Values inICANN's Bylaws. For example, the group discussed
>>> how key provisions of the Affirmation of Commitments
>>> <https://www.icann.org/en/about/agreements/aoc/affirmation-of-commitments-30sep09-en.htm> (AoC)
>>> could be reflected into the Bylaws.
>>>
>>> Additionally, the group worked on strengthening the existing independent
>>> review process suggesting improvements to its accessibility and
>>> affordability, and discussed process design including establishment of a
>>> standing panel with binding outcomes and panel composition (diversity
>>> etc.). The IRP panel decisions would be guided by ICANN's Mission and Core
>>> Values.
>>>
>>> With regards to mechanisms for community empowerment, the group identified
>>> powers and associated mechanisms including the ability to:
>>>
>>> · recall the ICANN Board of Directors;
>>>
>>> · approve or prevent changes to the ICANN Bylaws, Mission and
>>> Core Values;
>>>
>>> · reject Board decisions on Strategic Plan and budget, where the
>>> Board has failed to appropriately consider community input.
>>>
>>> The CCWG-Accountability supported the concept of a Fundamental Bylaw that
>>> would provide additional robustness to key provisions. The Fundamental
>>> Bylaw would apply to:
>>>
>>> · the mission;
>>>
>>> · the independent review process;
>>>
>>> · the power to veto Bylaw changes;
>>>
>>> · new community powers such as recall of the Board and the right
>>> of the community to veto certain Board actions.
>>>
>>> Changes to the Fundamental Bylaws would require high standards for
>>> approval by the community.
>>>
>>> The notion of an empowered community involved discussion of community
>>> representation, i.e. who constitutes the community. The
>>> CCWG-Accountability is also aware that to wield these new powers, the
>>> community, however it is constituted, must itself meet high standards of
>>> accountability. ICANN's accountability would also be enhanced by ensuring
>>> its operations and processes are more globally inclusive.
>>>
>>> The group has engaged two law firms to provide independent legal advice
>>> and confirm feasibility of the suggested frameworks. The firms are Adler &
>>> Colvin and Sidley & Austin.
>>>
>>> As work progresses, all recommendations will be subject to the stress
>>> tests against contingencies already identified. The stress test methodology
>>> has been successfully tested against the draft accountability mechanisms.
>>>
>>> The CCWG-Accountability is confident that their proposed mechanisms will
>>> satisfy the needs of the CWG-Stewardship1
>>> <https://www.icann.org/news/announcement-2015-03-25-en#_ftn1> as they
>>> look to stronger accountability protections. The CCWG-Accountability and
>>> CWG-Stewardship Co-Chairs met to update and fully brief each other on the
>>> progress made so far. They outlined key areas of accountability that the
>>> CCWG-Accountability Co-Chairs considered are most relevant for the current
>>> and ongoing work of the CWG-Stewardship. The CCWG-Accountability Co-Chairs
>>> will brief the CWG-Stewardship in the opening part of their face-to-face
>>> meeting on Thursday, 26 March.
>>>
>>> *Next Steps:*
>>>
>>> The CCWG-Accountability will continue refining its recommendations. The
>>> community is expected to provide feedback during a public comment period to
>>> be held before ICANN 53, Buenos Aires meeting. The results of the public
>>> comment period will inform further deliberations during that meeting.
>>>
>>> The group is developing an engagement plan to ensure its proposals are
>>> widely known and understood, and to encourage comprehensive response to
>>> proposals during the public comment period.
>>>
>>> The CCWG-Accountability Co-Chairs recognize the outstanding volunteer work
>>> that has produced these substantive proposals in a very short period of
>>> time. The community's effort has been exceptional.
>>>
>>> *About the CCWG-Accountability*
>>>
>>> The CCWG-Accountability was established to ensure that ICANN's
>>> accountability and transparency commitments to the global Internet
>>> community are maintained and enhanced in the absence of the historical
>>> relationship with the U.S. Government.
>>>
>>> The group has divided its work into two work streams (WS):
>>>
>>> · WS1 is focused on identifying mechanisms
>>> enhancing ICANN accountability that must be in place or committed to within
>>> the timeframe of the IANA Stewardship Transition;
>>>
>>> · WS2 is focused on addressing accountability topics for which a
>>> timeline for developing solutions and full implementation may extend beyond
>>> the IANA Stewardship Transition.
>>>
>>> The CCWG-Accountability consists of 177 people
>>> <https://community.icann.org/pages/viewpage.action?pageId=50823970>,
>>> organized as 26 members
>>> <https://community.icann.org/pages/viewpage.action?pageId=50823968>,
>>> appointed by and accountable to chartering organizations, 151 participants
>>> <https://community.icann.org/pages/viewpage.action?pageId=50823968>, who
>>> participate as individuals, and 46 mailing list observers
>>> <https://community.icann.org/display/acctcrosscomm/Mailing+List+Observers>.
>>> The group also includes one ICANN Board liaison, one ICANN staff
>>> representative, and one former ATRT member who serves as a liaison. In
>>> addition, there are 4 ICG members who participate in the
>>> CCWG-Accountability, including two who serve as liaisons between the two
>>> groups.
>>> Seven Advisors <https://www.icann.org/news/announcement-2014-12-17-en> have
>>> also been appointed to contribute research and advice, and to bring
>>> perspectives on global best practices to enrich the CCWG-Accountability
>>> discussion.
>>> The CCWG-Accountability is an open group: anyone interested in the work of
>>> the CCWG-Accountability, can join as a participant or observers.
>>> Participants or observers may be from a chartering organization, from a
>>> stakeholder group or organization not represented in the
>>> CCWG-Accountability or currently active within ICANN, or self-appointed.
>>>
>>> For more information on the CCWG-Accountability or to view meeting
>>> archives and draft documents, please refer to their dedicated wiki
>>> <https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Accountability>
>>> .
>>>
>>> A video interview with CCWG-Accountability Co-Chair Thomas Rickert can be
>>> seen here <https://www.youtube.com/watch?v=vVof6v0MguE>.
>>> ------------------------------
>>>
>>> 1 <https://www.icann.org/news/announcement-2015-03-25-en#_ftnref1> Cross
>>> Community Working Group (CWG) to Develop an IANA Stewardship Transition
>>> Proposal on Naming Related Functions
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>> ------------------------------
>>>
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>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>>
>>>
>>>
>>> --
>>>
>>> Jordan Carter
>>>
>>> Chief Executive
>>> *InternetNZ*
>>>
>>> 04 495 2118 (office) | +64 21 442 649 (mob)
>>> jordan at internetnz.net.nz
>>> Skype: jordancarter
>>>
>>> *A better world through a better Internet *
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
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