[CCWG-ACCT] Notes-Recordings-Transcript links for ICANN 53 CCWG-ACCT Working Session 2 - 24 June

[Kimberly Carlson]

Hello all,

The notes, recordings and transcripts for the CCWG ACCT Working Session 2 / ICANN 53 - 24 June will be available here:

https://community.icann.org/display/acctcrosscomm/CCWG-ACCT+Working+Session+2+%2824+June%29+Buenos+Aires


A copy of the notes and action items may be found below.

Thank you

Best regards,
Kim


Notes

Comments from CCWG members and participants about the new model  and
generally about the public comment and reactions to the CCWG work.

Now we are on agenda point 2, debriefing and feedback received.  Share
concerns and suggestion from your respective communities on all aspects of
our proposal.

The success or failure on our shoulders.  Depends on our approach.  In
addition to public comments, we have also received input from
distinguished comments from Sec. Strickling, CEO Fadi Chehade, and others.
We should review Sec. Strickling's comments carefully.

As we proceed to we seek perfection we must also look for some areas of
compromise.  So take the immediate and urgent issues as a minimum set lf
requirements for public comment 2. We can still move issues to WS2.

Board liaison: The board had sent a lot of questions, perhaps we could
have engaged more, but concerned we might have been seen as trying to
overly direct the conversation.

During the meeting on Friday people were given time to present models.
Thinking about how groups resolve disagreements.  On one end of the
spectrum there are contractual arrangements, not relying on trust, but on
legal intervention.  On the other end of the spectrum there is a model of
the Quaker meeting, based on purely on trust.  And the voluntary model has
driven the development of the Internet.  Free to access, a sharing
culture, and learning culture.  And the culture allowed the net to spread.
And while overtaken now, this enthusiasts model is still pretty strong.

On Friday we heard models that were legally oriented.  See this model as
infiltrating more mistrust.  And suggest that these types of model run
counter to some of the original models of the Internet.

Numbers community:  Concerned if the CCWG can deliver and implement the
proposal without delaying the overall transition.  Note: the CCWG must be
in sync with the ICG process.  Effectiveness is not the only goal, we must
also be in time.  A balance of enforceability and the stability of ICANN,
And also look again at whether the elements are needed for the transition
of IANA

Better if models are tested before.  Strengthen the IRP, strengthen the
bylaws, and agree with the concern about timing.  Can some of the work
regarding community empowerment be shifted to WS2?

Hybrid model is a concern for the NCSG, particularly with derivative law
suits, that our time could be tied up by lawsuits. So more focus on how we
would get agreement on budget and strategic plans, to bring the two sides
together rather than any recourse to the courts.  Softer enforcement
methods for these two issues.

Stakeholders from India.  Relationship between and Board and SO/AC and
keep feeling that we are looking at WS2, rather than issues essential to
the transition.  CWG is dependent on CCWG mechanisms, and would like to
hear those explained.

Comments from the commercial stakeholders groups.  (1) simplification was
welcome, but preserve access to enforceability, and anxious to get to the
details of that.  (2)  Comments about accessibility and cost of pursuing
an IRP.  (3)  acknowledge that RSAC and SSAC may not wish to vote, but
wish not to loose their advice to the community group.

How might it effect individual ccTLD managers. Is there a veto mechanisms
available for an impacted group.  How could an individual ccTLD manager
enforce.  Larry Strickling's advice.  Implementation of the WS1 proposals.
Linkages to the CWG proposal explained.  One comment that all that needs
to be enforceable is removal of the Board.

AoC reviews, come confusion between the ongoing nature of the AoC reviews
and the shift of those to the bylaws.  Advice to continue the AoC reviews
until such time as the transfer to bylaws complete.

RSAC and SSAC.  Both very much committed.  But do not expect to
participate in the voting mechanism.  The attach importance to being an
expert group. Don't want to create any fuzziness about their advisory role
and new powers.

SSAC they are advisors nominated by the board.  Interest to them if the
future a situation arose where they wanted to engage more directly they
could do so

ALAC: Concept of the culture of the Internet resonates.  Something softer.
Concern about membership.  And concern about liability.  Question, who
has standing.  Possible that the ICANN Board does something dumb, but its
likely that such a decision will not be unanimous and that person
(persons) have standing to take action against the rest.

The GAC needs more understanding on the proposed mechanisms.  The group
has developed questions, and will submit those and comments before the
CCWG mtg in Paris.  Main issue is how the GAC can participate, and how
public policy issues will be taken into account.

Next Steps and technical assistance for CCWG

A second public comment launch end July.  F2F meeting July 17-18, where we
need to discuss and resolve the issues from the pubic comment and meetings
here.  Governments and others will submit questions and comments, but we
need these a few days early so they can be fairly addressed.

We will design a scorecard of issues raised in the PC; those supported,
mostly supported, divergence. Need to discuss these and reach agreement on
each.

Bylaws drafting approach.  The timeline for approving bylaws is tight, to
mid November.  Some are almost ready, for example of incorporation of AoC
into the bylaws.   Need to be clear about the role of CCWG, of ICANN
staff, especially in their role assessing of consistency with other
bylaws, and the Board has a special roll on bylaws changes.

How to proceed with bylaws drafting, what do you think is required?

CCWG had significant discussion at the beginning of the process to get own
legal counsel, why are they not being asked to lead the drafting work.

ICANN legal has the best knowledge of the bylaws.  We have legal advisors
who can provide advice on how the drafts meet our requirements, and
suggest changes.

ICANN internal support.  Seeking the best, and timely and cost effective
solution.  Essential that the CCWG and independent counsel are part of the
effort, a role for review and assessment.  Clear guidance about what
should be in the bylaws, and also that these are ICANN's bylaws and should
be drafted in the consistent way.  And also ask for costs to be
considered.  But there is an important roll for the CCWG and independent
counsel.

Yes, ICANN bylaws, but we as the ICANN community should be drafting.
Agreement, the CCWG is developing the plan, knows what its intentions are
should be drafting.  But ICANN legal should be in there supporting with
the legal counsel.  But the pen in the hand of the CCWG.

The drafting already done by the CCWG followed much of the language of the
AoC and exciting bylaws.  The work already done might need a little more
work, but after some relatively easy work might be ready to pass over to
ICANN legal.

Suspect it will be a collaboration.  Optics suggest it should be in the
community's hand's first.

Independent counsel do not act for ICANN and there are liability issues
that ICANN legal must sign off on this.  The board must vote on
resolutions and do so based on it's own legal advice.

Two sets of legal advisors use wisely.  CCWG should be giving advice.
Most cost efficient would be ICANN legal drafting and external counsel
reviewing.  Think of ICANN legal as working for CCWG.

Legal process must be embedded in the multistakeholder discussion.

Note that ICANN also has bylaws changes from CWG.  There isn't much time,
so important that we are lock-step to Dublin.

Empowered SO/AC model.

First introduced during the working session last Friday (June 19).  We
were reviewing our requirements, and had a table presenting the pros and
cons of our models.  Tried not to use the word enforceability, and also
considered implementation time.  Need to evaluate the pros and cons, and
then a full legal test.  This is a baby step towards consensus.

Slides introduced.

Time is important.  Want to retain trust.  Don't want to make changes to
operating principles.  Concern for the members model.  And flexibility for
the future, the ability to bring in new groups.

Don't want to change legal nature.  Want to exercise the community powers.
Leave status quo as it, but could "switch-on" the authority to exercise
certain powers.  Both the member model and designator model could be the
basis.

Are we jeopardizing the CWG dependencies, need discuss the conditionality
issues.

What do SO/AC need to do - nothing at the moment.  Can formalize
relationship later.

ICANN needs to make sure the authority is granted in the bylaws. Might
nerd indemnification for SO/AC.   WS1 and WS2 tasks still need to be
implemented.  Needs to be considered in context of stress tests and impact
assessment.

Now talking about mechanisms. The difference between this as a designator
mechanism and a member mechanism.  Only the budget and strategic/Ops will
not be legally enforceable.  Can't imagine the board doing nothing.
Might be more complex than we need, only need the ability to remove the
Board to be legally enforceable.

Designators and members have differences in powers relating to the
budget/strategic and operational plans - members also have statutory
rights.  For example being able to dissolve the corporation.  This is not
acceptable.

The proposed substantial reform of the IRP must be effective, and must
have legal certainly in this.  Do the models have enforceability for the
breach of the mechanisms, for examples failing to appoint an IRP panel.
Is there a remedy?

Changing the bylaws is enough.  Don't feel that 15 boards members will all
act so badly.  Support the new proposal, but feel we can go further.

We are trying to honor those who wanted the trust based model. Idea that
if the board/community relationship turned sour then the powers could be
turned on.

Heard loud and clear about concerns about litigation.  No one wants a
model that leaves ICANN constantly in court.  We can seek resolution
through the IRP.  In the general and normal case, if the community wished
to rely on the IRP mechanism, that is a viable approach.

If there is a problem with the Board and community we need escalation.

Need a table that compares the new model with the old.  We are passing on
the hard issues, and think we have had good success with the proposal.
There is an obligation on us to support the CWG. And a lot of work in a
short space of time to take these consensus issues and build on them.

Be realistic about the practical level of empowerment.  That in the other
areas the trust models works.  Perhaps look at what works right in other
parts of the community. And consider if we need a numerical method of
delivering those powers, if voting is the right answer? Any instability in
ICANN effects the numbers community.

GAC and consideration of the role of governments in this new model.  (1)
would the empowered SO/AC model require legal personhood? And if some are
members and some are not, would this create an imbalance between them. (2)
if a SO/AC decides to join at a later stage who decides if they can join
or not.

Firmly supporting the bottom up process. And the CCWG process.

Risk of capture.  There is no decision in those core fiduciary areas that
cannot be stopped by the community.  And if the community does not like
what the board has done it can remove one or all directors.  Need to
ensure the corresponding responsibilities of accountability are
transferred as the powers are.

This is issue of community accountability raised my a number of
commenters.  Needs to be resolved.

Is there any requirement before a SO/AC can spring? IRP as a requirement,
would we have a way of keeping members out of courts on their issues.
Proposed as a low risk model, what was involved in that assessment?  And
need to consider re-writing the bylaws as a member organization.

The ability to go to the IRP is one of the first protections.

Which of these models if any provide a remedy to breaches in the bylaws
other than those noted in WP1. Would the empowered model protect from
cases such as ICANN failing to implement an IPR. Need to work on that.

We are here because ICANN accountability considered lacking. And here to
find solutions.   The community needs to be empowered to do that.   And
the model does seem to combined good aspects to do that.  So lets review
the models to date.

This will make Directors more cautious in what they say and do. This
desire to introduce community powers assumes the community is in agreement
with them, it is note. It seems to take ICANN towards being the next UN
general assembly.

Red herring to talk about trust and accountability.  Accountability is the
ability to hold to account.  Trying to say that we don't want to use the
term enforceability, and certainly not go to courts.  Also need to
remember how difficult it is within ICANN to gain consensus.  It would
need to be serious enough to bring about community consensus. And we have
work to do making the community more accountable.

On the one had people say it will never happen so OK to have the power.
On the other, never happen so don't need the power.  Leaning towards those
who say the budget and strategic plan not the same weight. Need to examine
the statuary rights and what those are.

Unintended consequences of the budget proposal where members of the
community vote against each other, or for their pet issues.  Budget
paralysis would also threaten the ability to fund the IANA function, which
should be enshrined in the bylaws.

Empowered designator.  7 directors, if we do not trust 1 to take action
then introducible.  Then have a contract to require them to take action.

At the end is Congress.  Everything has to pass a political context. Would
a government or the GAC have the ability to become a member?  Senators
will ask do the governments have more power than they do today.  Yes.
Will they have more power relative to others, more power.  Isn't one the
key conditions of NTIA that govt should not replace us?  Be careful.
There are many questions to think through.  What is necessary to
transition ICANN from one govt to all stakeholders.  Don't upset the
consensus balance that has worked for years.  If the balance changes our
model, then we are in trouble.

Must not be under control of one or more govt.  A proposal, find
consensus, make simple to explain to Congress, but no extra criteria than
those laid out when we started. Stick to our requirements.

Support for the empowered SO/AC model.  It's truly bottom-up. It gives us
choices.

Generally in favor.  Needs study and development.  Budget, the power to
veto the budget, a super majority.  Solvable problem.

NTIA ending a contract with ICANN and that is a legally enforceable
contract.  Can say that today that the SO/AC have different types of
power.  The SO/AC will have the same powers as today.  It gives the
community more power across the board, not more power to any single group.

Be clear, I was presenting the risk, not the answer.  The contract with
the IANA is not about accountability. There are real political risks.

Fear of lawsuits and of statutory rights, and the CCWG needs to lookout
for this.  Ensure that no group can short-circuit and move to enforcement
mode without having a proper consultation in the community.

And commitment to watch the watchers.  The two camps, of those who
enforcement powers and those who want trust model, but head little
willingness to compromise.  And we do not wish to leave anyone behind.
Which suggests a hybrid model is attractive.  Starting from trust.  But
the question is when to we move from the trust based model, and when do we
move.  And some movement on some the need for some powers, so long as
other powers in place.

How do we connect the two worlds.  A threshold to switch from one level to
the next, perhaps within the community.  Take the best from all worlds to
move forward.  And think more about where the power is.  And develop a
rationale as to why we put the votes in the proposal.  Need to see if
statutory powers can be waived.  Putting the IANA budget in the bylaws,
and we have a weakness of the designator model perhaps removed.  Very
helpful proposal for tomorrow's discussion at the next working session.

END

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