[Dt-cwg-auctionproceeds] Auction Proceeds DT Meeting 05/05/16: Notes, Outcomes and Action items

Thu May 5 22:13:51 UTC 2016

Hi everyone,

It was really good to be able to participate today at the conference call. Thanks Jonathan for facilitating the flow of the conversation and to Alan for transcribe some of my comments when the sound was not on my side.

Please find attached the 2 documents shared before, including my comments and some questions.

Some comments in between the lines below as well.

Warm regards,

Sylvia

From: <dt-cwg-auctionproceeds-bounces at icann.org<mailto:dt-cwg-auctionproceeds-bounces at icann.org>> on behalf of David Tait <david.tait at icann.org<mailto:david.tait at icann.org>>
Date: Thursday, 5 May 2016 at 5:09 PM
To: "dt-cwg-auctionproceeds at icann.org<mailto:dt-cwg-auctionproceeds at icann.org>" <dt-cwg-auctionproceeds at icann.org<mailto:dt-cwg-auctionproceeds at icann.org>>
Subject: [Dt-cwg-auctionproceeds] Auction Proceeds DT Meeting 05/05/16: Notes, Outcomes and Action items

Dear All

Please find below the outcomes and action items from today’s meeting:

Item 2. Update from Sam Eisner (ICANN Legal) re: Briefing note on fiduciary and legal constraints

Legal Note lays out both legal and financial/fiduciary constraints which are often closely related. Intention to provide a tool useful to both DT and future CCWG.

Even within 501(c)(3) entities ICANN is somewhat unusual. Initial disbursements must be consistent with ICANN's mission, thereafter the recipient must also utilize those funds for the purposes for which they were allocated. The mechanism for ensuring this compliance will require further elaboration, however, these principles will have to considered at every stage of the work. This should not bind the DT or WG to a particular model of allocating/managing the funds.

I think it was clear from the call that is important to share a bit about the definitions to use. Apportionment, allocation and disbursement were used to describe different steps of the process. The text above refers to the apportionment and maybe the allocation, but not for the disbursement.

In chartering WG the DT could require that any solutions which the WG determines appropriate should to the best extent possible be globally neutral and avoid favoring any region or country from which an applicant may originate.

At what stage does consideration of which particular categories of applicants (i.e. other 501(3)(c) or individuals) will be able to receive funds have to take place? Processes put in place by DT/WG should not exclude particular actors.

There is a specific exclusion already discussed in the memo, which is not to allocate funds to individuals. The comment should be about not excluding organizations that do not fit the 503( c)(3) status.

What would differentiation of the awarding of these funds from the ordinary awarding of contracts by ICANN to contractors within the ecosystem? This can be very different from normal contracting/operations as there is no expectation of return but rather to achieve objectives "consistent with" ICANN's mission. The meaning of "consistent with" may require to be further elaborated.

Important for DT to highlight the broad principles to be complied with but these should be primarily resolved by the contract awarding the funds.

Three work products for DT/WG to potentially produce: (a) Draft charter (b) Principles for use of funds and (c) Final proposal on utilization of funds.

Consideration could be given to requiring that the WG should put in a conflict of interest policy which is on a par with the most stringent within ICANN i.e. at board level.

Will the WG (a) design a process for distributing funds, or (b) also narrow the scope of fund allocation, or (c) actually make determinations about funding decisions? This will impact upon the degree of statement of interest/conflict of interest policy which should apply. DT needs to be 100% clear on whether or not CWG is confined to process / structure NOT disbursement.

The CCWG should confine its work to procedure, principles and guidelines NOT to recommendations about funding allocations, specific organizations to take on the implementation of the process or to receive funds.

Requirements for transparency/representation may be compromised in the context of a WG which allocated funds by stringent conflict of interest policies. This perhaps promotes a position in which the WG does not undertake this work.

Where 100M are at stake, this is key to avoid future challenges, additional risks for ICANN.

Action Items:
(i) SE to map and extract key points from the Legal Note which must go in the Charter;
(ii) EM as chair of audit committee to further review points raised in Legal Note and revert on constraints which might exist;
(iii) all DT to review latest draft of the charter and provide input;
(iv) EM and AH to ask Board to provide input on "support directly" v "consistent with" ICANN's mission as to the possible limitation on use of funds. What discretion is available to the DT?;
(v) all DT to complete review of sub-team consideration of public comments; and
(vi) EM and RM to distill general principles from public comments

Future Discussion points: how specific will the Charter be on the role of the WG in dispersing funds and what are the accompanying requirements

DT provisional determination: WG will not undertake the disbursement of funds directly and instead frame principles, processes and high level allocation of funds

Fully support this course of action.

The following items were not dealt with due to insufficient time:

3. Finalize review of public comments and identification of which items should be considered in relation to the development of the charter (see latest version attached)
4. Review and consideration of next steps in relation to charter section questions and example language (see latest version attached)
5. Helsinki meeting planning

I will not be attending the meeting in Helsinki, but will try to join remotely.

6. Confirm next meeting – 12 May at 21.00 UTC

David A. Tait
Policy Specialist (Solicitor qualified in Scotland)
Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: + 44-7864-793776
Email:  david.tait at icann.org<mailto:david.tait at icann.org>
www.icann.org

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