[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Meeting with ICANN Board - 15 May

[Kimberly Carlson]

Hello all,

The notes, recordings and transcripts for call with the ICANN Board - 15 May will be available here:  https://community.icann.org/pages/viewpage.action?pageId=53773481

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

Thank you.
Best regards,
Kim

________________________________

Action Items

ACTION ITEM - CCWG to provide more legal feedback on this point.

Notes

CCWG-Accountability - ICANN Board - 15 May 2015

Notes/Action Items - These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.

- Board introduction: The Board is preparing comments on the CWG as well as CCWG proposals. The Board has yet to form a position on the CCWG proposal. This call will help Board members get up-to-speed on key elements of the proposal and provide context for the formal response. This will also be an opportunity to ask questions.

- CCWG introduction: The public comment period does not represent consensus yet. We are seeking input on whether moving in the right direction. The comment period will end on 3 June. Bruce Tonkin has played an outstanding role in providing information.

The Bigger Picture

There are two tracks. The CCWG will be relayed to NTIA. Linkage between CCWG and CWG is extremely important. Lise Fuhr is on the call if any questions on linkage.

Questions can be asked directly and no room for misinterpretation - we hope this dialogue will continue.

Goal & Scope of Group

Work Stream 1: within timeframe of transition.

Timeline

We started work in December by assessing the current situation. In January, the group came up with requirements for WS1. This was discussed in Singapore, including with Board, and was refined in Istanbul.

We have had opportunity to have independent legal support and acknowledge that this was very useful for the process.

Four Building Blocks

We acknowledge the outstanding commitment from group and rapporteurs.

We established status quo in first stages of our work i.e. inventory of existing mechanisms and community input with respect to accountability using the public comment report produced by ICANN. We came up with requirements.

Here are the four building blocks upon which can build the accountability mechanisms that are needed:

- Empowered community (legislative)

- ICANN Board (executive)

- Bylaws (constitution)

- Independent Review Mechanisms (judiciary)

Fundamental Bylaws

To make sure the Board does not change principles and remove judiciary or jeopardizes changes etc, the concept of Fundamental Bylaws was suggested. Suggested Fundamental Bylaws include:

- Mission, Commitments & Core Values

- IRP

Power to veto non-fundamental Bylaw changes and to approve changes to Fundamental Bylaws

- Reviews required by the CWG-Stewardship
- New community powers


Empowered community

5 powers

We are using building blocks already in place - we are amending them to provide more accountability.

Empower community is one of major themes in accountability work.

Reconsider/Reject Budget or Strategic/Operating Plans

The ICANN Board and staff will provide draft budget that will go for public comment . Board approves budget. If SO/AC objects to budget, it will be brought to empowered community for vote.

All SOs, GAC, At-Large get 5 votes - SSAC/RSSAC 2 votes.

Higher voting threshold for subsequent version.

Reconsider/Reject Changes to ICANN Bylaws

Board is to take on board community wishes

Approve Changes to Fundamental Bylaws

75% of votes need to be cast in favor of Bylaw change.

Removal of Individual Board Directors

- SO/AC appointed Directors - process lies in hands of SO or AC. Appointing body is removing body.

- NomCom appointed Directors - At least 2 SO or ACs need to request - To be determine whether NomCom would be called upon to vote in favor of dismissal (75%)

Recalling the Entire ICANN Board

High entry required: 3 SO/ACs. We need at least 1 AC - 2 SOs or 2 ACs 1 SO. Other groups would deliberate and through consensus or vote decide on removal of entire Board.

Feedback:

- (Kavouss Arasteh) Who participates in recalling individual Board members?

--> There needs to be a legal vehicle for communities to enforce different rights and powers. Anyone that appoints a director conforms the entity to vote.

Various options offered throughout the report are based on assumption that SO/ACs would form unincorporated associations. It is not for us to decide who would join and who would not but we are giving equal treatment.

- (Steve Crocker) Board is impressed and grateful for amount of work put into this. We are strongly in favor of accountability. With respect to recalling individual Board members, it appears the underlying notion is that Board members are representing SO/ACs and ground to initiate is that not representing SO/AC. In our Bylaws, training of Board members and discipline, it is clear that Board members serve entire organization and community, not their individual appointing bodies i.e. acting in the best interest. Creation of recalling individual Board Directors pushes into the direction of a representative legislator as opposed to cohesive oversight process.

--> Possibility to remove individual Directors was set as a measure to remove directors who did something entirely wrong We are cognizant that it is a big stick that we should not apply lightly.

- (Steve Crocker) There is a broad principle of proportionality. The community already has a mechanism to remove individual Board members: if a Board member is not handling information appropriately etc. What criteria would be used to remove a Director? What information would be available? It requires clarification.

--> The processes shall be defined by different SO/ACs - nothing is prescribed. We will consider 1) current mechanisms ; 2) giving guidance to SO/ACs and set ting guidelines for processes.

- (Cherine Chalaby) There are two classes it seems : 1) SO/ACs - 2) NomCom - that is a contradiction to Board members being accountable to all stakeholders. There should be one process - a unique standard of review - for all Board members.

--> There are legal implications

ACTION ITEM - CCWG to provide more legal feedback on this point.

-  (Rinalia Abdul Rahim ) If SO/ACs move forward and create Unincorporated Associations, would the process involve reviewing their own accountability mechanisms, or even strengthening it?

SO/AC Membership Model

Legal adivce received from lawyers point that this is the most effective way to provide community with powers. There needs to be a legal vehicle for community to enforce different rights. Two ways: 1) a membership model; 2) a designators model. Designators cannot accommodate all powers. The membership model is the preferred model as a result. There would a petition by SO/AC. First need to see if petition meets required threshold, then would move on to voting.

Unincorporated Associations

Legal entity will provide vehicle for SO/ACs to exercise powers. They are lightweight structures. The governing document would be set by each of SO/ACs. This would be filed upon State of California Law. Unincorporated Associations is easiest way to provide this vehicle but it is not the only way.

IRP

Proposed amendments include: decisions would be binding - allows for review for both substance and produre - is more accessible - has lower cost - standing panel of seven.

The new IRP panel

Judicial body that would function for ICANN community. Culturally and geographical diverse, independent of ICANN (inc. SO/ACs), fixed term, term limited, compensated by ICANN (how do we achieve independence?), composed of significant experts in international arbitration and ICANN.

Third party international arbitral bodies would nominate candidates. The Board would consider and suggest panelists which the community would then confirm.

Filing an IRP

Anyone can initial an IRP. Board inaction/inaction that materially harms anyone. First step would be for parties to resolve - if no arrangement can be found, IRP is triggered.

IRP decisions

We have standing IRP panels made of 7 members. Formula:

- 1 person panel

- 3 person panel

ICANN and complaining party would agree on panelist.

Decision characteristics include:

- binding on ICANN, not subject to appeal (except on limited basis)

- Documented

- Delivered in timely fashion

- Existing precedent in decision-making should be considered.

Request for Reconsideration

Reconsider a Board or staff decision.

Scope has been expanded (standing), broadened goals, more Board engagement (less legal), transparency requirements, accessibility is improved (15 to 30 days)

Feedback

- (Bruce Tonkin) Step 2 of process (anyone materially harmed) - would a test be run? Would a threshold need to be reached before going into process?

--> It is the standard that exists today - it is not a change. There is a requirement for constructive engagement and ability to invoke a mediator.

- (George Sadowsky) Is the Board ultimately responsible for harm although it comes from a different party?

---> Language is Board/staff action or inaction. Theoretically yes - SO/ACs don't have power unilaterally to cause material harm. Ultimately it will involve action/inaction of Board/staff.

Affirmation of Commitments Reviews

The AoC could disappear in future, hence the recommendation to bring reviews into ICANN Bylaws. Amendments include:

- ability to sunset reviews and create new reviews

- appointments to reviews made by SGs

- access to internal documents

- require Board to consider approval and begin implementation
- Board decision could be challenged.

Stress Tests

We have been defining contingencies - 26 risks were identified and ran again current accountability system and the proposed accountability framework. It is subject to proposals.

Linkage with CWG-Stewardship

It was oulined in various correspondence: accountability powers, transparency around budget, IANA function review to be moved into Bylaws as fundamental, review panels should not interfere with delegation/redelegation.

Timeline

Public comment ends on 3 June. The CCWG hopes to share conclusions in BA and to further investigate proposals where needed. Second period is planned for July in time for approval in Dublin.
We have started considering how much time it would take to implement various proposals.

Board members and community are encouraged to read report - there is a lot of detail.

BA sessions:
- F2F on 19 June
- CCWG/Board on 21 June
We will engage each SO/AC

The Board plans to send a comment period and believes this is a highly important process.


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