[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Meeting #78 - 19 January

[Brenda Brewer]

Hello all,

 

The notes, recordings and transcripts for CCWG ACCT meeting #78 - 19 January will be available here:
https://community.icann.org/x/ipxlAw

 

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

 

Thank you.

 

Kind regards,

Brenda

 

Action Items

*        ACTION ITEM - Sebastien to signal whether objection sustained in 48 h. 

*        CONCLUSION/ACTION ITEM: Becky to continue work on this scope and to clarify limits on
applicability of IRP. This item will be 
considered closed unless we get objection from Sebastien within 48 hours that gets traction. 

*        ACTION ITEM: Language to be circulated in second reading conclusions document. 



*        CONCLUSION/ACTION ITEM: Use proposal language, add clarification that Bylaw will remain
dormant until FOI is still developed. Circulate 
proposed language and ask for lawyers to confirm language.



*        ACTION ITEM: Add discussion point on market mechanism

Notes

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

Jeff Neuman, Greg Shatan on the phone. 

Scope of IRP

Overview of conclusions. 

In addition - we have carve-out language for IRP challenges to a PDP: 

Notwithstanding the foregoing and notwithstanding any required threshold for launching a community
IRP, no community IRP 
that challenges the result(s) of a supporting organization's policy development process (PDP) may be
launched  without the 
support of the supporting organization that developed such PDP or, in the case of joint PDPs,
without the support of the 
supporting organizations that developed such PDP.

Feedback:

- Does this imply IRP can be used to challenge an action of SO/AC rather than ICANN the corporation?
Clarify what limits 
are in terms of SO/AC activities. 

--> Clarification will be added. 

- Will this clause apply to challenging GAC, ALAC recommendations?

--> This would be after the fact decision. It does not impact ability of Board to respond. 

- It will jeopardize the multistakeholder system. Can we re-discuss? 

--> Multistakeholder input is part of the process. 

ACTION ITEM - Sebastien to signal whether objection sustained in 48 h. 

- Carve-out ensures that the multistakeholder approach is functioning. We should anticipate that
each PDP that is adopted is verified 
by the multistakeholder community. This carve-out should ensure it does not contravene wish of PDP.
It preserves the approach more 
than anything else. 

- Drafting note: The term PDP is not used for the ASO in the Bylaws, so the full expression should
be used in any Bylaws.

- Without agreement we could not challenge PDP - that is all we are saying.

- Against proposed drafting note. 

- We should not use abbreviation PDP because it is not used in ASO environment. 

--> We will avoid acronyms.

- What is status of DIDP: are we going to handle it separately or will it be WS2?

---> We need escalation process first. 

- Would DIDP be available to individual or SO/ACs?

---> DIDP is available right now. Violation of Bylaws would be appealable to IRP. 

- Where will we give consideration to public comments? 

---> We have tried to identify in discussion points all the comments with specific attention to COs,
Board, constituencies, stakeholder 
groups. E.g. question of PTI was a CWG-Stewardship comment. It is intent to capture all comments.
Anyone is welcome to challenge these key discussion items - if there is a concern, raise it on 
the call. e.g. Mike Charter raised an omission on list. A summary of comments per recommendation can
be found 
at:
<https://www.icann.org/en/system/files/files/summary-comments-draft-ccwg-accountability-proposal-08j
an16-en.xlsx>
https://www.icann.org/en/system/files/files/summary-comments-draft-ccwg-accountability-proposal-08ja
n16-en.xlsx

CONCLUSION/ACTION ITEM: Becky to continue work on this scope and to clarify limits on applicability
of IRP. This item will be 
considered closed unless we get objection from Sebastien within 48 hours that gets traction. 

---

Human Rights

Review of current options. 

Feedback:

- Option 2 C is not C reconsidered. It is the dormant Bylaw language that it should not be
operational before FoI. 

--> 2 C is proposal by lawyers.

- Why do we need a dormant Bylaw? Mention commitment in WS 1 but have all details in WS2.

--> In WP4 commitment to include a transitional Bylaw that would allow commitment for Bylaw to
remain dormant and for 
FoI to be developed. 

- Object to 3 c: there is significant confusion. Organization must abide by Bylaws. It has to be
stated that it is not effective (i.e. Bylaw) 
otherwise it is effective (subject to IRP). Is it intended that Bylaw is not enforced as opposed to
enforceable until FoI is put in place? A is 
significant departure from 3rd draft. C is closer to what was suggested. 

A does not take into account transitional Bylaw. Intent is to not have effective until FOI put in
place. A deletes the transitional Bylaw and 
make Human Rights Bylaw immediately effective and binding in terms of action/inaction. That is
different from proposal. C leaves the 
Bylaw effective and binds ICANN in actions/inactions - it is internally contradictory. Alternatives
need to be well stated so we understand effect. 

- Options are not ready-to-go language. These are concepts. Option 3A is not big departure from
draft. A is what we had in third 
draft - B Board/comments 
suggestions - C is dormant concept. 

- 3A is language as proposed in report. No big risks with IRP. 3B was discarded by lawyers (see 2A)
- Board needs to give more 
argumentation to consider that further. 

- Go for something general and safe.

- In PC period, strong record of support for that recommendation. Human Rights is an important
signal. 

- Any implementation needs to come after FOI. Alternate A - there is belief it will be immediately
effective. It deletes effect of transitional 
Bylaw. Will ICANN be immediately bound by IRP? Problems understanding between 3A and 3C.

---> Way forward could be to keep language we have in report and specify that implementation of
human rights bylaw would be subject to 
framework of interpretation and that bylaw would remain dormant until then. This would be in line
with what was discussed in WP4 and 
address Board concern. We have not received GAC feedback on this yet. Let's keep this in mind as we
wait for GAC input.

- Have Bylaw not operational until FOI is adopted. Option of dormant Bylaw is going to address
comments, including Board. 

- We need text to solidify understanding. C cannot be viewed as an option. 

Board input:

Deferring to WS 2 would be cleanest option. The Board is committed to having a commitment to Human
rights. We should not have 
language in Bylaw before framework is developped. We need to see language before considering in
detail. 

--> ACTION ITEM: Language to be circulated in second reading conclusions document. 

Feedback:

- We should all converge towards a single point of agreement. 

- Do not wait from external input but translate opinions of this group into language.

CONCLUSION/ACTION ITEM: Use proposal language, add clarification that Bylaw will remain dormant
until FOI is still developed. Circulate 
proposed language and ask for lawyers to confirm language. 

Board removal liability mitigation

We have concluded discussion with request for our legal counsel to work with Jones Day on finding
language.

AOC Reviews

Overview of discussion items. 

On 1 & 2

Feedback:

/ 

Conclusion: We will move forward with these. 

On 3 - Any objection to including mid-term review of IRP? This discussion would be deal with IRP IOT

Feedback: 

/

Conclusion: No objection

On 4 - increase presence of GNSO in gTLD reviews (consumer trust, WHOIS) - 

Changing numbers might lead to change of number of seats on Review Teams. Does it serve the purpose
to augment seats?

Feedback: 

- ALAC will be vocal if this changes. Political pressure is high. ALAC has diversity as well and we
will have no choice but to ensure 
regions are presented as well. 

- Size needs to be manageable and balance unchanged. 

Conclusion: No change to proposal.

On 5 & 6

Feedback:

- Member as different connotation as sole member. We should not reopen issue. It should remain
standard bylaw. 

Conclusion: Our report will stay as it is. 

On 7

Conclusion: Support for inclusion of recommendation. On the understanding that specific
recommendations in Annex 9 would be 
respected, such that this text addresses only implementation detail

Mission Statement

Suggesting to break discussion in subparts. We would like to take stock on some of these items and
highlight challenges moving forward. 

Root server language is pending. We have received comment from lawyers on numbers language. In
addition, we have text from 
Izumi. We are wordsmithing - no disagreement on substance. 

Consumer trust: we have received clarification from Fiona Alexander.

Feedback:

- Reference to MoU  is inappropriate. It may change overtime. 

- ALAC recommendation on whether market mechanism should remain in Bylaws 

ACTION ITEM: Add discussion point on market mechanism

- Commitments are necessary for expansion of new gTLD.

CONCLUSION: We are keeping our Third Draft Proposal language. We are not discarding Consumer Trust
per se - although it is not 
a Core Value,  it is part of AoC reviews.

ALAC had comment on preservation and enhancement of DNS which was not properly transposed from NTIA
requirements.

There are two large discussions: 

 - Whether there should be any limitations on scope of ICANN's agreement with contracted parties -
to what extent can ICANN 
enforce commitments. There is a degree of diversion on list. There are fundamental freedom of
contract provisions and questions 
about security and stability of agreement, the extent to which they can rely upon. This debate is
still polarized. 

- Grandfathering - specific request for provisions including PICs - can be renewed without being
subject to questions. This is 
complicated by many operators proposing individual PICs. It involves freedom of contract as well.
Expand the conversation to 
include people who are not participating. 

Feedback:

- ICANN is enforcing terms under which it agreed to a delegation. We have to be able to permit
enforcement. 

- We should accept advice from lawyer but Board will decide what is right. 

- It raises question of to what extent are applications part of agreement? 

Conclusion: We will have call to identify where agree on on the list in next few days to we may move
to constructive phase to 
close on this discussion. We will reconvene on this discussion with language based on fruitful
mailing-list discussions.

GAC Advice

Overview of key discussions. In addition we could add:

- notion of rationale 

- add clarification that all ACs, not just GAC.

On two suggestions:

Feedback:

- Agree with these two suggestions

- OK with notion of rationale but is there a process if others think it is not a rationale?

- Board should decide whether they have received a rationale

- We are not singling out GAC.

- At discretion of Board to identify whether rationale is sufficient 

Conclusion: These two suggestions will be taken onboard for second reading. 

Suggestion to clarify that we cannot restrict AC on advice they offer but that it is clear that
ICANN may not take action if inconsistent 
with its Bylaws. Proposed text: While the GAC is not restricted as to the advice it can offer to
ICANN, it is clear that ICANN may not 
take action that is inconsistent with its Bylaws. The empowered community will have standing to
bring an IRP to challenge any board 
action or inaction that is inconsistent with its bylaws, even if the board acted on GAC advice.

Feedback:

- Uncontroversial. It should be consistent with Bylaws.

- Important to clarify how community IRP. IRP is to bring a finding. Series of consequences flow. 

Conclusion: We are moving forward with this for second reading. 

Suggestion to add language: This recommendation is intended to limit the conditions under which the
ICANN board must enter a 
try to find a mutually acceptable solution.  This recommendation does not create any new obligations
for ICANN board to consider 
and/or vote on GAC advice, relative to the bylaws in effect prior to the IANA transition.   This
recommendation does not create any 
new assumption that ICANN is bound to implement any advice that is not rejected by the board,
relative to the bylaws in effect 
prior to the IANA transition.

Feedback: 

- What are lawyers expected to do? 

--> Does the clarification help for clarity in drafting? 

- Support this addition. It is in line with IPC comments. There is no new obligation in way Board
deals with GAC advice other than 2/3 majority. 

Conclusion: We will provide GAC and GNSO time to react on this but this discussion was useful to
clarify.

AOB

We will discuss timeline on Thursday. 

 

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