[client com] FW: [CWG-Stewardship] FW: CWG-Stewardship Comments on CCWG-Accountability Third Draft Proposal
Grace Abuhamad
grace.abuhamad at icann.org
Mon Dec 21 19:07:34 UTC 2015
Hi Sharon and Holly,
Forwarding this to you. Thank you for your assistance in completing the
work.
‹Grace
From: <cwg-stewardship-bounces at icann.org> on behalf of Grace Abuhamad
<grace.abuhamad at icann.org>
Date: Monday, December 21, 2015 at 12:47 PM
To: "cwg-stewardship at icann.org" <cwg-stewardship at icann.org>
Subject: [CWG-Stewardship] FW: CWG-Stewardship Comments on
CCWG-Accountability Third Draft Proposal
Forwarding to the full group for information. The comment link is:
http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30n
ov15/msg00057.html
From: Jonathan Robinson <jrobinson at afilias.info>
Organization: Afilias
Reply-To: Jonathan Robinson <jrobinson at afilias.info>
Date: Monday, December 21, 2015 at 12:35 PM
To: Grace Abuhamad <grace.abuhamad at icann.org>, Mathieu Weill
<mathieu.weill at afnic.fr>, Thomas Rickert <thomas at rickert.net>, 'León Felipe
Sánchez Ambía' <leonfelipe at sanchez.mx>, 'Patrik Fältström'
<patrik at frobbit.se>, "byron.holland at cira.ca" <byron.holland at cira.ca>,
"thomas.schneider at bakom.admin.ch" <thomas.schneider at bakom.admin.ch>,
"jbladel at godaddy.com" <jbladel at godaddy.com>, Alan Greenberg
<alan.greenberg at mcgill.ca>
Cc: Lise Fuhr <lise.fuhr at difo.dk>, Robert Hoggarth
<robert.hoggarth at icann.org>, Heidi Ullrich <Heidi.Ullrich at icann.org>, Marika
Konings <marika.konings at icann.org>, Bart Boswinkel
<bart.boswinkel at icann.org>, Steve Sheng <steve.sheng at icann.org>,
"glen.gery at icann.org" <glen.gery at icann.org>, Olof Nordling
<olof.nordling at icann.org>
Subject: RE: CWG-Stewardship Comments on CCWG-Accountability Third Draft
Proposal
All,
Please note that the document provided is specifically the CWG Stewardship
response to the CCWG Accountability Third Draft Proposal and its purpose is
to address the detail issues relating to the dependence of the CWG
Stewardship on the work of the CCWG Accountability.
For completeness, it has also been submitted to the CCWG Public Comment
Forum prior to the closing of that forum.
Thank-you,
Lise Fuhr & Jonathan Robinson
Co-Chairs, CWG Stewardship
From: Grace Abuhamad [mailto:grace.abuhamad at icann.org]
Sent: 21 December 2015 18:17
To: Mathieu Weill <mathieu.weill at afnic.fr>; Thomas Rickert
<thomas at rickert.net>; León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>;
Patrik Fältström <patrik at frobbit.se>; byron.holland at cira.ca;
thomas.schneider at bakom.admin.ch; jbladel at godaddy.com;
alan.greenberg at mcgill.ca
Cc: Jonathan Robinson <jrobinson at afilias.info>; Lise Fuhr
<lise.fuhr at difo.dk>; Robert Hoggarth <robert.hoggarth at icann.org>; Heidi
Ullrich <Heidi.Ullrich at icann.org>; Marika Konings
<marika.konings at icann.org>; Bart Boswinkel <bart.boswinkel at icann.org>; Steve
Sheng <steve.sheng at icann.org>; glen.gery at icann.org; Olof Nordling
<olof.nordling at icann.org>
Subject: CWG-Stewardship Comments on CCWG-Accountability Third Draft
Proposal
Dear CCWG-Accountability Chairs and Chairs of the CWG-Stewardship's
Chartering Organizations,
Please find attached and below the CWG-Stewardship¹s comments on the
CCWG-Accountability¹s Third Draft Proposal. These comments have been posted
to the Public Comment forum and are being sent to you for information and
wider circulation.
Thank you,
Lise & Jonathan
‹‹
ICANN Cross Community Working Group Accountability (CCWG-Accountability)
Dear CCWG-Accountability members, participants and co-chairs,
We write in response to your group¹s recent publication
<https://community.icann.org/download/attachments/56145016/CCWG%20Draft%20Pr
oposal_Dec.01.2015.pdf?version=1&modificationDate=1449011113000&api=v2> of
your third draft proposal (the ³Third Draft Proposal²). We have prepared
this in our capacities as co-chairs of the Cross Community Working Group to
Develop an IANA Stewardship Transition Proposal on Naming Related Functions
(CWG-Stewardship). References below are to the main body of the Third Draft
Proposal, unless otherwise indicated. We have also indicated below where we
previously raised points in response
<https://community.icann.org/download/attachments/56136438/55.%20%20CWG%20IA
NA%20Stewardship%20Comments.pdf?api=v2> to your group¹s publication
<https://community.icann.org/pages/viewpage.action?pageId=53783460&preview=/
53783460/54887691/CCWG-2ndDraft-FINAL-3August.pdf> of its second draft
proposal (the ³Second Draft Proposal²).
First, we would once again like to confirm the quality of the ongoing
coordination and collaboration between the co-chairs of our respective
groups since the CCWG-Accountability commenced its work. Each of our groups
has been regularly engaged with and updated on the progress made, including
the interdependency and interrelation between our work, and this has led to
the regular exchange of key correspondence to develop and formalize the
linkage. As CWG-Stewardship co-chairs, we have discussed with the
CCWG-Accountability co-chairs on a regular basis key aspects of the work of
both groups.
The CWG-Stewardship final transition proposal
<https://community.icann.org/pages/viewpage.action?pageId=53779816&preview=/
53779816/54003507/FinalTransitionProposal_11June.pdf> submitted for
approval to the chartering organizations on 11 June 2015 is significantly
dependent and expressly conditioned on the implementation of ICANN-level
accountability mechanisms by the CCWG-Accountability. Specifically, as
recognized in the Third Draft Proposal, the CWG-Stewardship final transition
proposal sets forth ICANN accountability requirements regarding Community
Empowerment Mechanism, IANA Functions Budget, IANA Function Reviews,
Separation Process, Appeals Mechanism, and Post-Transition IANA (PTI), as
well as Fundamental Bylaws. Therefore, this document is and should be
viewed as an element of the agreed-upon working methods of the
CWG-Stewardship and the CCWG-Accountability in determining whether the Third
Draft Proposal meets the conditions and requirements of the CWG-Stewardship
final transition proposal. In that regard, we kindly request confirmation
that the CWG-Stewardship comments reflected in this document are addressed
in the next version or variation of the CCWG-Accountability proposal in
order to ensure that this next version or variation of the proposal
addresses all of the CWG-Stewardship dependencies.
Our comments focus on the specific ICANN accountability requirements set
forth in the CWG-Stewardship final transition proposal:
1. Community Empowerment Mechanism
The CWG-Stewardship final transition proposal requires that the
multistakeholder community be empowered with the following rights with
respect to the ICANN Board, the exercise of which should be ensured by the
creation of a stakeholder community/member group:
The ability to appoint and remove members of the ICANN Board and to recall
the entire ICANN Board;
The ability to exercise oversight with respect to key ICANN Board decisions
(including with respect to the ICANN Board¹s oversight of the IANA
Functions) by reviewing and approving: (i) ICANN Board decisions with
respect to recommendations resulting from an IANA Function Review (IFR) or
Special IFR and (ii) the ICANN Budget; and
The ability to approve amendments to ICANN¹s ³Fundamental Bylaws,² as
described below.
Comment The Third Draft Proposal contemplates implementing a ³Sole
Designator² model, pursuant to which the community would be empowered to act
as the Sole Designator to: (a) exercise the community powers described in
the Third Draft Proposal, including the power to: (i) remove (in addition to
appoint) individual ICANN Directors, and (ii) recall the entire ICANN Board,
and (b) enforce decisions and powers of the Community Mechanism as the Sole
Designator (i.e., the Empowered Community) through initiating a binding
Independent Review Panel process, where a panel decision is enforceable in
any court recognizing international arbitration results. In addition, the
Third Draft Proposal contemplates that the community would be required to
follow the engagement and escalation processes described in the proposal
before exercising any of the community powers. Finally, with respect to
actions involving individual Directors, the escalation process to remove a
Director could only be used once during a Director¹s term if the process
reaches the step of holding a community forum or above and then fails to
remove the Director.
Conclusion We believe that the community powers and community empowerment
mechanism contemplated by the Third Draft Proposal adequately satisfy the
CWG-Stewardship requirements relating to the community empowerment
mechanism. Although the community powers are in some cases less direct than
in the Sole Member model contemplated by the Second Draft Proposal, we
believe the CWG-Stewardship requirements can be met through the community
powers and community empowerment mechanism contemplated by the Third Draft
Proposal.
The CCWG-Accountability Third Draft Proposal requires that the community
³follow the engagement and escalation processes described in the proposal
before exercising any of the community powers.² This is a reasonable
requirement but it creates a dependency on the usability of the engagement
and escalation processes. If the community and in particular the SOs and ACs
are unable to reasonably meet the requirements of those processes, then the
community powers will lose their value. The very specific time requirements
for various SO and AC actions in the escalation processes may be impossible
or at best very difficult to meet; if more than one SO/AC cannot act within
the tight time limits, the process will be halted.
The CWG-Stewardship recognizes that the escalation processes need to happen
in a timely manner but they must also allow sufficient time to accommodate
the diverse and complex makeup of SOs and ACs. A key question that should be
asked of SOs and ACs is this: what is the minimum time they need to respond
to a critical issue that is also very time sensitive? To be more specific,
can they respond in 7 days without compromising their bottom-up,
multistakeholder model? If they cannot, then the CCWG-Accountability
recommended empowerment mechanisms do not meet the CWG-Stewardship
requirements. This should not be a hard problem to solve. Time
restrictions that are deemed to be too short could be lengthened a little
and/or the restrictions could be defined in a more flexible manner to allow
for brief extensions when reasonably required.
2. ICANN Budget and IANA Functions Budget
The CWG-Stewardship final transition proposal requires that the community
have the ability to approve or veto the ICANN Budget after it has been
approved by the ICANN Board but before it comes into effect. The community
may reject the ICANN Budget based on perceived inconsistency with the
purpose, mission and role set forth in ICANN¹s Articles and Bylaws, the
global public interest, the needs of ICANN stakeholders, financial stability
or other matters of concern to the community.
In the final transition proposal, the CWG-Stewardship also recommends that
the IANA Functions Operator¹s comprehensive costs should be transparent and
ICANN¹s operating plans and budget should include itemization of all IANA
operations costs to the project level and below as needed. Under the final
transition proposal, an itemization of IANA costs would include: direct
costs for the operation of the IANA Functions, direct costs for shared
resources and support functions allocation. Furthermore, these costs should
be itemized into more specific costs related to each specific function to
the project level and below as needed. PTI should also have a yearly budget
that is reviewed and approved by the ICANN community on an annual basis.
PTI should submit a budget to ICANN at least nine months in advance of the
fiscal year to ensure the stability of the IANA services. It is the view of
the CWG-Stewardship that the IANA Functions Budget should be approved by the
ICANN Board in a much earlier timeframe than the overall ICANN Budget. The
CWG-Stewardship (or a successor implementation group) will need to develop a
proposed process for an IANA Functions Operations-specific budget review,
which may become a component of the overall budget review. It is
anticipated that the IANA Functions Operations Budget review will include a
consultation process with relevant and potentially impacted IANA customers.
Comment The Third Draft Proposal clarifies that the community would have
new powers to reject: (a) ICANN¹s Annual Operating Plan and Budget, (b) the
IANA Functions Operations Budget, (c) ICANN¹s Five-Year Strategic Plan and
(d) ICANN¹s Five-Year Operating Plan, in each case after approval by the
ICANN Board but before they take effect. The Third Draft Proposal specifies
that these powers can only be exercised after extensive community
discussions and through mandatory escalation processes.
The Third Draft Proposal contemplates that prior to the ICANN Board
approving a budget or strategic/operating plan, the ICANN Board must have
undertaken a mandatory engagement process pursuant to which the ICANN Board
consults with the community. The Third Draft Proposal further specifies
that the community could only challenge a budget or strategic/operating plan
if there are significant issues brought up in the engagement phase that were
not addressed prior to approval.
The Third Draft Proposal specifies that the ICANN and IANA Functions
Operations Budgets would be considered separately by the community so that a
rejection of the ICANN Budget would not automatically result in a rejection
of the IANA Functions Operations Budget, and a rejection of the IANA
Functions Operations Budget would not serve as a rejection of the ICANN
Budget. It also proposes that if the community power is exercised to reject
the ICANN Budget or the IANA Functions Operations Budget, a caretaker budget
would be enacted. The Third Draft Proposal notes that details regarding the
caretaker budget are currently under development.
As we noted in our comment letter on the Second Draft Proposal, the Third
Draft Proposal does not provide for ³approval² by the community of the ICANN
Budget and/or IANA Functions Operations Budget, but rather provides for
negative authority in the form of a decision by the community to reject the
ICANN Budget and/or IANA Functions Operations Budget. As we also noted in
that comment letter, the CWG-Stewardship acknowledges that the community¹s
ability to reject the ICANN Budget and/or the IANA Functions Operations
Budget will meet the CWG-Stewardship requirements and that community
approval is not required.
We note that unlike the Second Draft Proposal, the Third Draft Proposal does
not specifically address: (i) the CWG-Stewardship¹s requirement that the
budget be transparent with respect to the IANA Functions¹ operating costs or
(ii) the specific grounds upon which the community could reject a budget or
plan. In addition, as we noted in our comment letter on the Second Draft
Proposal, the Third Draft Proposal does not specifically address the
timeframe for when budgets should be submitted.
Conclusion Similar to our conclusion in our response on the Second Draft
Proposal, overall we believe that the Third Draft Proposal¹s specifications
with respect to the community power to reject budgets is both necessary and
consistent with the requirements of the CWG-Stewardship final transition
proposal; however, we require that the CCWG-Accountability proposal or the
implementation process address the matters that are not sufficiently
specified in the Third Draft Proposal (i.e., those relating to budget
transparency, grounds for rejection of a budget/plan, timing of budget
preparation and development of the caretaker budget, each of which were
described in the Second Draft Proposal). In addition, we note, that the
CWG-Stewardship (or a successor implementation group) is required to develop
a proposed process for the IANA Functions Operations-specific budget review.
We require that the proposal specifically acknowledge this.
3. IFR
The CWG-Stewardship final transition proposal requires the creation of an
IFR which is empowered to conduct periodic and special reviews of the IANA
names function. The CWG-Stewardship proposal contemplates the ability of
the community to exercise oversight with respect to ICANN Board decisions on
recommendations resulting from an IFR or Special IFR by reviewing and
approving those ICANN Board decisions.
Comment The Third Draft Proposal contemplates incorporating the review
system defined in the Affirmation of Commitments into ICANN¹s Bylaws. The
Third Draft Proposal specifies that the IFR and Special IFR would be
incorporated into the ICANN Bylaws based on the requirements detailed by the
CWG-Stewardship, and notes that it is anticipated that the ICANN Bylaw
drafting process would include the CWG-Stewardship. The Third Draft
Proposal also provides that the community be empowered to reject ICANN Board
decisions relating to reviews of IANA names function. Prior to making a
decision relating to IFRs, the Third Draft Proposal specifies that the ICANN
Board must have undertaken a mandatory engagement process pursuant to which
the ICANN Board must have consulted with the community.
Conclusion We believe that the Third Draft Proposal adequately satisfies
the CWG-Stewardship requirement relating to the IFR. The community¹s
ability to reject ICANN Board decisions on recommendations resulting from an
IFR or Special IFR will meet the CWG-Stewardship requirements, provided that
the final version of the CCWG-Accountability proposal provide that the right
to reject can be exercised an unlimited number of times.
4. Customer Standing Committee (CSC)
The CWG-Stewardship final transition proposal requires the creation of a CSC
that is empowered to monitor the performance of the IANA names function and
escalate non-remediated issues to the ccNSO and GNSO. The ccNSO and GNSO
should be empowered to address matters escalated by the CSC.
Comment The Third Draft Proposal contemplates that the CSC will be
incorporated into the ICANN Bylaws. We expect that provisions incorporating
the CSC into the Bylaws would be overseen by the CWG-Stewardship (or a
successor implementation group).
Conclusion We believe that the Third Draft Proposal adequately satisfies
the CWG-Stewardship requirement relating to the CSC, provided that the ICANN
Bylaw drafting process will continue to include involvement by the
CWG-Stewardship (or a successor implementation group).
5. Post-Transition IANA (PTI)
The CWG-Stewardship final transition proposal contemplates the formation of
a PTI as a new legal entity. PTI will have ICANN as its sole member and PTI
will therefore be a controlled affiliate of ICANN. As a result, the ICANN
Bylaws will need to include governance provisions related to PTI, in
particular as it relates to ICANN¹s role as the sole member of PTI.
Comment The Third Draft Proposal contemplates that governance provisions
related to PTI will be incorporated into the ICANN Bylaws as Fundamental
Bylaws. We note that the Second Draft Proposal contemplated that
specifications with respect to PTI governance provisions would be based on
requirements to be detailed by the CWG-Stewardship. While this language was
not included in the Third Draft Proposal, we continue to expect that PTI
governance provisions would be overseen by the CWG-Stewardship (or a
successor implementation group).
Conclusion We believe that the Third Draft Proposal adequately satisfies
the CWG-Stewardship requirement relating to PTI, provided that the ICANN
Bylaw drafting process and related PTI governance documents will continue to
include involvement by the CWG-Stewardship (or a successor implementation
group).
6. Separation Process
The CWG-Stewardship final transition proposal contemplates that a Special
IFR will be empowered to determine that a separation process between ICANN
and PTI is necessary and, if so, to recommend that a Separation
Cross-Community Working Group (SCWG) be established to review the identified
issues and make recommendations. Annex L of the CWG-Stewardship final
proposal sets forth more detailed information as to approval requirements
with respect to the formation of an SCWG and approval of SCWG
recommendations, including any selection of a new IANA Functions Operator or
any other separation process, in each case these actions require approval by
a community mechanism derived from the CCWG-Accountability process.
Comment The Third Draft Proposal contemplates that the separation process
required by the CWG-Stewardship final transition proposal will be
incorporated into the ICANN Bylaws. The Third Draft Proposal describes the
CWG-Stewardship requirement of a procedure to implement a separation process
should it arise from a Special IFR, including provisions for the creation of
an SCWG, its functions and voting thresholds for approving the end-result of
the SCWG process.
The Third Draft Proposal specifies that the community be empowered to reject
ICANN Board decisions relating to reviews of IANA names function; including
the triggering of PTI separation. Prior to making a decision relating to
IFRs, including the triggering of PTI separation, the Third Draft Proposal
specifies that the ICANN Board must have undertaken a mandatory engagement
process pursuant to which the ICANN Board must consult with the community.
Conclusion We believe that the Third Draft Proposal adequately satisfies
the CWG-Stewardship requirements relating to the separation process. The
community¹s ability to reject ICANN Board decisions on Special IFR/SCWG
recommendations, which would include the selection of a new IANA Functions
Operator or any other separation process will meet the CWG-Stewardship
requirements, provided that (i) the final version of the CCWG-Accountability
proposal provide that the right to reject can be exercised an unlimited
number of times, and (ii) the ICANN Bylaw drafting process and related the
Separation Process will continue to include involvement by the
CWG-Stewardship (or a successor implementation group).
7. Appeals Mechanism
The CWG-Stewardship final proposal contemplates an appeals mechanism, for
example in the form of an Independent Review Panel (IRP), for issues
relating to the IANA names function. For example, direct customers with
non-remediated issues or matters referred by ccNSO or GNSO after escalation
by the CSC will have access to an IRP. The appeal mechanism will not cover
issues relating to ccTLD delegation and re-delegation, which mechanism is to
be developed by the ccTLD community post-transition through the appropriate
processes.
Comment The Third Draft Proposal contemplates significant enhancements of
ICANN¹s existing appeals mechanisms, including the IRP. It is proposed that
the IRP will be available to TLD managers to challenge ICANN decisions
including with respect to issues relating to the IANA names function (with
the exception of ccTLD delegations and redelegations, which appeals
mechanisms are to be developed by the ccTLD community post-transition, in
coordination with other parties), and that the Empowered Community can use
the IRP to challenge an ICANN Board decision if it believes that the ICANN
Board is in breach of its Articles or Bylaws (for example, if the ICANN
Board determines not to accept the decision of the Empowered Community to
use one of its community powers or if the ICANN Board determines not to
implement a recommendation of the IFR team).
The Third Draft Proposal does not explicitly contemplate that the IRP would
hear claims relating to actions (or inactions) of PTI. The CWG-Stewardship
final transition proposal requires an independent review process for issues
relating to the IANA names function. This is intended to be a process that
is independent of ICANN and PTI, and that would address actions (or
inactions) of PTI.
Conclusion As we noted in our comment letter to the Second Draft Proposal,
the Third Draft Proposal does not explicitly address the CWG-Stewardship
requirement that an independent review process be available for claims
relating to actions or inactions of PTI. This requirement could be addressed
in a number of ways. For example, a provision could be added to the ICANN
Bylaws that would require ICANN to enforce its rights under the ICANN-PTI
Contract/Statement of Work (SOW), with a failure by ICANN to address a
material breach by PTI under the contract being grounds for an IRP process
by the Empowered Community (after engagement and escalation). Another
approach would be to expand and modify, as appropriate, the IRP process
currently contemplated by the Third Draft Proposal to cover claims relating
to actions or inactions of PTI, with the ICANN Bylaws and PTI governance
documents expressly confirming that the IRP process is binding on PTI (which
provisions would be Fundamental Bylaws that could not be amended without
community approval). Regardless of approach, the CWG-Stewardship requires
that this dependency be addressed in the final CCWG-Accountability proposal
in order for the CWG-Stewardship to confirm that the conditions of the
CWG-Stewardship final transition proposal have been adequately addressed.
8. Fundamental Bylaws
The CWG-Stewardship final transition proposal contemplates that all the
foregoing mechanisms will be provided for in the ICANN Bylaws as
³Fundamental Bylaws.² A ³Fundamental Bylaw² may only be amended with the
prior approval of the Empowered Community and may require a higher approval
threshold than typical Bylaw amendments (for example, a supermajority vote).
Comment The Third Draft Proposal contemplates that the following, among
others, would be made Fundamental Bylaws as part of Work Stream 1:
Each of the community powers (including in relation to ICANN and IANA
Functions Operations Budgets, ICANN Director removal/Board recall, and
amendments to Fundamental Bylaws);
The Empowered Community and the rules by which it is governed;
The framework for the IRP;
The IFR, Special IFR and the separation process;
The CSC; and
PTI governance.
Prior to approving any Bylaw amendment, the Third Draft Proposal specifies
that the ICANN Board must have undertaken a mandatory engagement process
pursuant to which the ICANN Board must consult with the community. The
Third Draft Proposal specifies that establishing new Fundamental Bylaws or
amending or removing Fundamental Bylaws will require: (i) approval by the
ICANN Board (with a three-quarters vote of all standing Directors) and (ii)
a decision by the Empowered Community to exercise the Community Power to
approve changes to fundamental Bylaws. The Third Draft Proposal also
specifies the threshold for the exercise of the Community Power to approve
changes to Fundamental Bylaws.
Conclusion We believe that the Third Draft Proposal adequately satisfies
the CWG-Stewardship requirements relating to Fundamental Bylaws.
Looking forward, we continue to be committed to retaining the link between
the work of the two groups. Thank you for taking the lead in responding to
the CWG-Stewardship requirements in the Third Draft Proposal and indeed for
all related work. As we have communicated with your group on several
occasions, we rely on your work and our trust in the work of your group is
vital in permitting us to focus on the essential aspects of our work on the
stewardship transition. We look forward to your confirmation that the issues
raised above will be resolved in the CCWG-Accountability Proposal.
Best regards,
Lise Fuhr and Jonathan Robinson
Co-chairs, CWG-Stewardship
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