[CCWG-ACCT] Fwd: FW: CCWG - recs 1,2 and 11

Fri Feb 12 18:36:06 UTC 2016

Bernard,

That looks great.

Best,

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/>

__________

On Feb 12, 2016, at 1:32 PM, Bernard Turcotte <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>> wrote:

Brett,

Good catch and we agree, this one seems to have slipped by everyone even if its been there since the third draft.

As such Becky Burr, the co-chairs and legal counsel have looked at this and propose the following as a more adequate text for this in recommendations 1 and 2:

•         To the extent the Government Advisory Committee (GAC) wishes to participate in decision-making by the Empowered Community, which the GAC has the flexibility to determine, it would be one of five Decisional Participants. In addition, the GAC will not participate as a decision-maker in community deliberations involving a challenge to the Board’s implementation of GAC consensus advice.  This “carve out,” combined with the safeguards in Recommendation 11, leads the CCWG-Accountability to believe that this NTIA requirement is met, even when considering the increased threshold from 50 to 60% for the Board to reject GAC consensus advice.

We  hope this addresses your concerns.

Thanks

B.

On Fri, Feb 12, 2016 at 8:18 AM, Schaefer, Brett <Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>> wrote:
Chairs,

Thank you. It seems to me that these statements at the conclusion of Rec 1 and 2 don’t accurately reflect the substance of the proposal:

Rec 1:

31           NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.
•             Retaining decision-making based on consensus rather than voting.
•             Maintaining the advisory role of governments in the SO and AC structure.

Rec 2:

61           NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.
•             Retaining decision-making based on consensus rather than voting.
•             Maintaining the advisory role of governments in the SO and AC structure, including the GAC.
•             Enabling all interested stakeholders to join consultations through SOs and ACs or through the Community Forum.

In fact, the decisional model does expressly contemplate voting, i.e. tallying support or opposition among the decisional participants with specified thresholds, to climb the escalation ladder and exercise community powers.

Moreover, the GAC is now a participant in the Empowered Community (albeit with the carve out) and the advisory role has been altered, not maintained, by defining GAC consensus and elevating the Board threshold to reject GAC consensus advice to 60 percent. These are significant changes.

Best,

Brett

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>] On Behalf Of Bernard Turcotte
Sent: Friday, February 12, 2016 7:21 AM
To: Accountability Cross Community
Subject: [CCWG-ACCT] Fwd: FW: CCWG - recs 1,2 and 11

________________________________
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<tel:202-608-6097>
heritage.org<http://heritage.org/>
---------- Forwarded message ----------
From: Grapsas, Rebecca <rebecca.grapsas at sidley.com<mailto:rebecca.grapsas at sidley.com>>
Date: Thu, Feb 11, 2016 at 7:28 PM
Subject: FW: CCWG - recs 1,2 and 11
To: Bernard Turcotte <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>>
Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>, ICANN-Adler <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, "Greeley, Amy E." <AGreeley at sidley.com<mailto:AGreeley at sidley.com>>

Dear Bernie,

Attached please find minor proofing/conforming changes on Annexes 1, 2 and 11.  Most of the edits to Annex 1 were provided on January 31 but had not been incorporated.  If possible, it would be great if these could be reflected in the final version to be distributed for review.  We also noticed that Annex 3 did not incorporate our edits sent on January 31, 2016; these are pasted again below for your convenience.  If you would prefer that we prepare a markup of Annex 3, please send us a Word version.  Many thanks.

Annex 3:

•        Global:

o   “cCommunity pPower” or “cCommunity pPowers”

•        Summary (p. 1):

o   “(ICANN) have a single…”

o   “Any changes to Fundamental Bylaws require approval from both the ICANN Board and the Empowered Communitycommunity as outlined in…”

•        Paragraph 1 (p. 2), Paragraph 18 (p. 5):

o   “The Empowered Community for enforcing Community Powers,Community Mechanism as the Sole Designator Model including the role of sole designator of ICANN’s Directors,the right of inspection granted to Decisional Participants in the Empowered Community as described in Recommendation 1.”

o   “The process for amending Fundamental Bylaws and/or Articles of Incorporation, and for approving ICANN’s sale or other disposition of all or substantially all of ICANN’s assets, as described in Recommendation 3.”

o   “The PTI Governance and Customer Standing Committee (CSC) structures, also required by the CWG-Stewardship’s Proposal.”

o   “The rights of investigation and inspection (as described in Section 3 of Annex 01 - Recommendation #1: Establishing an Empowered Community for Enforcing Community Power).”

•        Paragraph 4 (p. 2):  “Today, ICANN Bylaws can be changed by a resolution of the Board upon a 2/3 majority vote of all of the Directors. The CCWG-Accountability believes that the set of key Bylaws fundamental to ICANN’s stability and operational continuity and essential for the community’s decisions-rights should be given additional protection from changes by requiring Empowered Community community approval of any amendments.”

•        Paragraph 5 (p. 3):  “By sharing the authority to authorize changes between the ICANN Board and the Empowered Community ICANN community (organized through its participating Supporting Organizations (SOs) and Advisory Committees (ACs), the “Decisional Participants” in the Empowered Community, as outlined in Recommendation #1…).”

•        Paragraph 11 (p. 4, graphic):  Remove the “Sidley/Adler Note,” but we note that our comments on the graphic have not been incorporated into the latest draft.

o   In the graphic, for the box on the lower right, we recommend adding  “(3/4 MAJORITY)” after “REQUIRES ICANN BOARD.”  We also recommend addressing the Articles of Incorporation in a separate graphic under the section titled “Articles of Incorporation.”

•        Paragraph 12 (p. 4):  “The Empowered Community community approves the addition, amendment, or removal of the Fundamental Bylaw by using its power as an Empowered Community to approve the change…”

•        Paragraph 13 (p. 4):  “If the addition, amendment, or removal of the Fundamental Bylaw is agreed upon by both the ICANN Board and the Empowered Community community:”

•        Paragraph 16 (p. 5):  “The CCWG-Accountability recommendssuggests that only critical aspects of the ICANN Bylaws be classified as Fundamental Bylaws to avoid introducing unnecessary rigidity into ICANN’s structures. The CCWG-Accountability concluded that recommendingsuggesting that all changes…”

•        Paragraph 26 (p. 6): “…a provision will need to be added to the Articles of Incorporation requiring Empowered Community approval…”

•        Paragraph 30 (p. 7):  “Through the The Empowered Community, SOs and ACs would have to affirmatively consent give positive assent to any change proposed and adopted by the ICANN Board before the amendment could become legally effective, as part of a joint decision process between the ICANN Board and the Empowered Community community.”

•        Paragraph 32 (p. 7):  “Such changes require a high degree of support from the Decisional Participants in the Empowered Communitycommunity assent, as the purpose of this power is to make changing Fundamental Bylaws or the Articles of Incorporation possible only with very wide support from the community.”

•        Paragraph 34 (p. 7): “Clarified the process for changes of Articles of Incorporation to be similar to process for changes to Fundamental Bylaws, as well as the process for approving ICANN’s sale or other disposition of all or substantially all of ICANN’s assets.”

•        Paragraph 36 (p. 8):  “ICANN Board: Community rights regarding the ability to appoint/remove Directors of the ICANN Board, and recall the entire Board.”

REBECCA GRAPSAS
Counsel
Sidley Austin
787 Seventh Avenue
New York, NY 10019
+1-212-839-8541<tel:%2B1-212-839-8541>

Level 10
7 Macquarie Place
Sydney NSW 2000
Australia
+61-2-8214-2235<tel:%2B61-2-8214-2235>
rebecca.grapsas at sidley.com<mailto:rebecca.grapsas at sidley.com>
www.sidley.com<http://www.sidley.com/>
________________________________
From: Bernard Turcotte
Sent: Tuesday, February 09, 2016 06:27:31 PM
To: Gregory, Holly; Rosemary E. Fei; ACCT-Staff (acct-staff at icann.org<mailto:acct-staff at icann.org>); Burr, Becky; Cheryl Langdon-Orr; Jordan Carter; León Felipe Sánchez Ambía; Mathieu Weill; Steve DelBianco; Thomas Rickert (thomas at rickert.net<mailto:thomas at rickert.net>)
Subject: CCWG - recs 1,2 and 11
Holly, Rosemary,

had to modify these per the results today for rec 11.

In order to give you a leg up I thought I would forward these before the final report as they should be 99%+ stable.

I have attached TC from a clean of your accepted comments.

Hope that is ok.

Cheers.

B.

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