[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Meeting #34 - 26 May

[Kimberly Carlson]

Hello all,

The notes, recordings and transcripts for the CCWG ACCT meeting #34  - 26 May will be available here:

https://community.icann.org/pages/viewpage.action?pageId=53775690

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

Thank you

Best regards,
Kim


ACTION Items
ACTION ITEM - CoChairs to reach out to Comms Team to analyse feasibility.
ACTION ITEM: CCWG to go through memorandums put together by counsel on UAs - https://community.icann.org/download/attachments/52890082/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2 <https://community.icann.org/download/attachments/52890082/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2>
ACTION ITEM - Provide clear comparative documentation on models
ACTION ITEM - Cochairs to follow up on F2F/intensive session on list.
ACTION ITEM - staff to investigate whether lawyers have access to mailing list.
ACTION ITEM - Thomas to check whether GAC wants a briefing session
ACTION ITEM - Cochairs to provide lawyers on clear Buenos Aires expectations

Notes
1. Welcome, Roll Call & SoI
CCWG is encouraged to provide outstanding SoIs - staff can assist as needed.

2. Feedback received on CCWG proposal
It would be useful to receive a short update on discussions in our respective communities. As a reminder we have currently received 4 comments. The CWG-stewardship is managing 50 comments. It would be valuable to share what comments are currently being drafted.
- Mathieu was invited to a ccNSO Council call where the CWG and CCWG proposals were discussed. We should expect that the Council will ask us to highlight which of our proposals affect ccTLDs and in which manner. There might be an official correspondence.
- BC will be sending in comments: enforcing powers may require that SO/ACs adopt member status under California law and will encourage the CCWG to provide further explanation on this model. Suggestion to start answering these questions. It was found that slides prepared by Xplane were a very helpful way to digest report content.
- Community is seeking clarification about members and UA structure
- RySG will be submitting comments that are largely supportive.
- IPC is drafting comments that are largely supportive. Jonathan will coordinate with Becky on comments.
- Stress Tests Work Party will determine how assessments will change if lack enforceability.
- As we make decision about type of UAs and variation, stress tests should also look at accountability issues in particular
--> Specific solutions for specific stress tests.

3 Next Steps on Discussions regarding UAs and other membership models
There have been very thorough and fruitful discussions regarding membership model and UAs. Many concerns and questions remain to be answered: accountability of members etc being one.
Should we adopt membership model or appoint Chairs to be Members of ICANN?
UAs provide legal vehicle for community to hold ICANN accountable. We need legal vehicle to achieve goals.
UAs is not the only legal vehicle that can provide us with their empowerment. There have been discussions about how corporation in Switzerland could achieve this for instance. UAs has been the easiest model.
SO/AC Chairs can be appointed as member but this triggers new questions.
Hybrid model could be adopted and would function: SO/ACs could choose to form UAs while others may choose to appoint their Chair.
Bylaws would recognize each member or the figure of the Chair. Bylaws would be recognizing the position of the Chair.
Chair would act on behalf of SO/AC. UAs would be governed by rules stated by each SO/AC.
To avoid: 1) Chair used as synonym of individual; 2) Equate legal personhood of individual to the one grand to Chair
Key questions: 1) whether it is possible for Bylaws to recognize only function or figure instead of natural person, whether Bylaws would provide powers to position rather than person; 2) whether the risks could increase through membership model.
Feedback:
- If you have not uniformed arrangement between SO/ACs - when come to voting, there will be different criteria, this won't be normal. We address one accountability question but transfer another accountability question. Clarity is needed on overall picture.
--> This needs to further discussed but we need to come to a conclusion on how to address this issue. Answer could be that each SO/AC would apply methods.
- We need to be careful that it not necessarily be Chair of SO/AC but rather the Chair SO/AC designates. We may want to distribute the position (one per region etc). We do not want to make it sound like SO/AC Chair. There may well be situations where we want to put someone in position but this person cannot. We might want to consider replacements. ALAC has certain rules when it comes to accountability criteria. We have processes that can be written in Bylaws, Charters etc to ensure criteria are being met. Can we tie responsability to a rank?
- It can be another person that could be designated. We must avoid complicating this. Most SO/ACs have formal processes. In favor with proceeding with this route.
- UAs is really consistent with trying to make SO/ACs into members. Looking at Chairs concept, agree that acting as a conduit for the will of SO/AC. It is symbolically appropriate.
- 1) We need to have the representatives of SO/ACs in the community body accountable to their own SO/ACs we need enforceable tools against these representatives 2) we need to have enforceable tools against ICANN decision that would not respect community body decision 3) we keep things as simple as possible. Do the options we are considering have these requirements? Are SO/ACs already UAs? Legal counsel to clarify.
- Holly said we might already be UAs. There is no difference but difference in how it can be explained to others and how will it be perceived adds a level of complexity. Existence of UA and its descriptions makes it even more complex.
--> Agrees with three requirements - there are a number of options: 1) UAs as members ; 2) Human beings designated by UAs as members.  You need some entity to have enforceable right. There needs to be a level of intent, basis/minimal rules to help indicate who is involved in organization. There may be benefits in being registered as UA. Discussion around UAs have added a degree of complexity.
--> We are fine-tuning to make things as easy as possible. The member model is best way for community to get powers. Whether the SO/AC is member or a delegate appointed by SO/AC, you need some power to ensure that that person is respectful of desires of community group he/she represents. Traditionnally the way to get there is to have group be legal person itself. The additional benefit you would have by registering UAs as an entity, you get liability protection that comes with it. As many rules you have, you have formed intent to create UA, we are advocating final step of registering for legal benefit.
- ICANN will require certain legal balance: enforceability that considers reality.
- Are we on same page with respect to enforceability? If the group considers robust enforceability as a requirement, then we are taking about membership model. Question is how do we implement membership model. Using UAs would be a very good implementation model. Concerns about complexity this might add. If we have set of requirements that are implemented including UAs, would you still go for other option even if we had to sacrifice goals? We need to communicate the whole accountability architecure in professional matters.
- The reference that some SO/ACs may already be UAs, we do not want SO/ACs to be UAs but to have a shadow. Perceived complexity of how people will understand ICANN. There has been a discussion on potential problems of if we had ability to go to Court we end up with possibility. When writing these rules can we waive the right to go to court?
- It might be useful to have a comparitive table betweem UA and non UA membership - pros and cons - degrees of implementation and complexity.
- Concerned about discussion - if we want to end up being organization where we are able to go to Court, it is not an organization I would like to join. Best way would be international organization.
- Conversation is missplaced - enforceability issue is about having authority that we are putting in Bylaws. It is not about going to Court.
- Governance arrangements's basis principle is to prevent going to Court. The fact that you can go to Court is a credible threat so that no one goes to Court. We need to acknowledge feedback on complexity. Suggestion would be for the CCWG to create UA - we submit to group draft articles of association based on legal counsel's legal input. Anyone on this list can comment and add concern on UA. We can report to community first hand.
- If you create a legal person, perception that might lose multistakeholder model soul, it does not have any reality attached to it.
- It is not the legal process, it is the perception that it will cause among others that is problematic. Is it possible to waive litigation?
- Having ability to go to Court and ability to remove Board directors are the two powers/authorities that make it so unnecessary
- Powers that are put in place are far more complex that anything having to do with UAs. Struggling to understand why UAs are causing so much concern when it is the least complex part of this entire process. You can certainly waive rights to Courts but why create such a complex set if not going to use them?
- Setting up a UA documenting how we do it and explaining steps that need to be taken might help explain concept to community together with far more complex escalation path we have already been working on. Suggestion: Cochairs to talk to Comms Team to see if can facilitate comms to community.
ACTION ITEM - CoChairs to reach out to Comms Team to analyse feasibility.
- Overall structure may be complex and may benefit from further explanation. We need to see how we can boil complexity.
- Does this structure increase opportunity for individual members to litigate on their own without community consensus?
- Threshold could probably be set (member approval before litigation).
ACTION ITEM: Legal counsel to do some research on litigation threshold.
- How do we have people understand the overall process? A lot of this is about explanability. Issue of individual members taking action.
ACTION ITEM: CCWG to go through memorandums put together by counsel on UAs - https://community.icann.org/download/attachments/52890082/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2 <https://community.icann.org/download/attachments/52890082/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2>
We will reach out to comms Team to see how we can explain this.
- Complexity for UA membership implementation needs to be added.
--> We need to define scenarios first and will be able to provide clear table.
ACTION ITEM - Provide clear comparative documentation on models.

Legal Group & Engagement with Lawyers
We had discussion on last call where concept of rearranging legal subteam was suggested. We have reached out to ICANN to provide us with information on legal costs incurred so far. We have hit 1 million dollars for CCWG. We will be asking for timesheets and more detail on time being sent on what subject.
Variety of expertise, getting lawyers up-to-speed and research on legal requirements/implementation added to legal costs.
1,7 million for both CCWG and CWG
We will be exercising more control on costs.

Work Plan Post BA - Second Public Comment Period
Public comment will end on 3 June. Staff will populate comment review tool by June 7. Our regular call on June 9 is going to be extended by an hour to ensure everyone is comfortable the PCRT was populated in appropriate manner. That will kick WP work on analysing comments. June 16 will be freeze date for WPs' output. We will be assessing which parts raise concerns, divergences, agreements etc.
BA schedule:

  *   Board discussion on Sunday
  *   Working session on Wednesday and Thursday
  *   We are working on engaging each SO/AC to hold dedicated sessions.
We will then move into phase where our goal will be to launch a 40-day comment period. We will attempt to finalize proposal in time for Dublin meeting which means we will need to finalize proposal by October 9. We have the month of July to finalize document for comment. Do we plan for a F2F or intensive session? Do we move fast and finalize this before or after July 20? Is it currently foreseen that there would be a need to have specific work groups or support for that period? There is some support among Chairs and Rapporteurs for a F2F in July.
Feedback:
- What happened to consensus work plan?'
--> We are planning to try and close as many items as early as possible if we get consensus on IRP or reconsideration process e.g.. This is planning for outstanding issues in July. It is not replacing the approach described by Thomas.
- July 16 difficult.
ACTION ITEM - Cochairs to follow up on F2F/intensive session on list.
Objective is to select dates and determine format asap.

6. A.O.B
Video is not available. As part of engagement activity, we are planning to do videos to help community understand what we are working on. Pilot is currently being finalized by comms Team. We will review and will share with group.
Lawyers have not received stream of emails on UAs.
ACTION ITEM - staff to investigate whether lawyers have access to mailing list.
Lawyers would welcome guidance on what is needed for Buenos Aires.
ACTION ITEM - Thomas to check whether GAC wants a briefing session
ACTION ITEM - Cochairs to provide lawyers on clear Buenos Aires expectations


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