[CCWG-ACCT] Comments on draft docs

Mon Nov 23 23:55:37 UTC 2015

All,

The draft reads well, nice job. Most of the comments I would have made have already been highlighted. For the record, in addition to my ST 18 objections, I want to make sure that three issues are noted:

  1.  That the "right of inspection" as granted members under the California Corporations Code must be clearly and specifically granted the Sole Designator.
  2.  That an independent appeal process for DIDP decisions must be incorporated and made explicit in either the IRP or RFR sections.
  3.  The bullet "Considering which specific Human Rights conventions or other instruments should be used by ICANN in interpreting and implementing the Bylaw" needs to be modified by adding ",if any," after instruments and before should to mirror the language in the following bullet "Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfil its commitment to Human Rights."

The first two bullets were agreed to be WS1 in the WP1 discussions. The second is consistent with my recollection of discussions and with treatment of similar concerns in that bulleted section.

Thanks,

Brett

________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org<http://heritage.org/>

________________________________
From: accountability-cross-community-bounces at icann.org [accountability-cross-community-bounces at icann.org] on behalf of Steve DelBianco [sdelbianco at netchoice.org]
Sent: Monday, November 23, 2015 2:07 PM
To: Accountability Cross Community
Subject: [CCWG-ACCT] Comments on draft docs

Here are my comments on the Main Document, Annex 9, and Annex 12.  I shared most of this with WP1 on yesterday’s call, bu wanted to post them to the full CCWG as well.

p.3  Community powers listed do not show the Community-based IRP.  On p.46, the community IRP is mentioned, but nowhere do we spell out the threshold to launch a community IRP.  Our Dublin decision model showed a community IRP required support of 3 AC/SOs and no more than 1 objection.

p.5 – where did this line come from, and what does it mean?
"Workable consensus reforms that enhance the role of the community and ICANN’s Mission should be consistent with ICANN’s interest as a corporate entity."
It was in our 15-Nov summary, but was NOT in our 2nd draft report.
Sometimes community interests will NOT be consistent with interests of the corporate entity.
I recommend we DELETE that line.

p.10 Empowered Community graphic shows GSO. Should be GNSO

p.12 Escalation graphic: I think ENFORCEMENT should be on the horizontal line in upper right corner, to imply this is a step after notifying the ICANN board of the community decision.   That would match better with the Enforcement step described on p. 15

p.12-13 Step 1: after 1 AC/SO approves the petition, shouldn’t we allow an extra 15 days for a second AC/SO to also approve the petition?

p. 13 Step 2: I’m pretty sure we also said that the conference call would be recorded and transcribed, and published.

p. 16: should we add “ and Articles of Incorporation” to the 5th bullet, “Approving any modifications to Standard or Fundamental Bylaws”.   Articles already say, "9. These Articles may be amended by the affirmative vote of at least two-thirds of the directors of the Corporation. When the Corporation has members, any such amendment must be ratified by a two-thirds (2/3) majority of the members voting on any proposed amendment.”  Should we change the Articles to say “Members or Designators”?

p.18: numbered item 5 says “Sole Member Model”   Should be Sole Designator Model.

p.20, 21, 22: should we add “ and Articles of Incorporation” to the 5th bullet, “Approving any modifications to Standard or Fundamental Bylaws”.

p.23: says “none objecting”, but I thought we always require more than one objecting to block a power.   My notes from Dublin show that we required more than one objection to block removal of a NomCom director.  Perhaps this was changed after Dublin, but I’m not sure.

p.46: (IRP) I recall Becky wanted the IRP to address action or inaction.  "The standard of review shall be an objective examination as to whether the complained-of action [or inaction] exceeds the scope …"

p.46: (IRP).   Says "A community Independent Review Process would be completely subsidized by ICANN”.    Would be clearer to say, “Legal costs for a community Independent Review Process would be paid by ICANN”

p.49:  says "Based on stress test analysis, CCWG-Accountability recommends incorporating the reviews specified in the Affirmation of Commitments …”   More precise to say, “Based on Stress Test #14, CCWG-Accountability recommends incorporating the commitments and reviews specified …"

P.55: Transparency in WS2:   Becky — didn’t we commit to give the Sole Designator the same document access rights that the Sole Member would have under CA law?     If so, that should be in this section.

Annex 9:  This annex does not include the tables where we describe the changes to AoC reviews as they are brought into the bylaws. Must be an oversight, since those tables include many, many WP1 decisions about specific review team requirements.  I attached the AoC document again here.

Annex 12: Stress Tests.  This draft shows none of our analysis of existing and proposed measures.
I strongly recommend we return to the table format (attached includes the updated ST 29 and 30).  This would add as much as 17 pages to the annex, but I don’t see how we can justify the Stress Test conclusions without showing how we reached the conclusions.

Annex 12: note that the introductory sentence for ST 29 and 30 was updated to this, per a request from Greg Shatan:
Public commenters requested two additional stress tests regarding challenging enforcement of contract provisions on the basis that they exceed the limited mission of ICANN.