[CCWG-ACCT] Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #5 - 26 September 2016

[MSSI Secretariat]

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #5 – 26 September 2016 will be available here:  https://community.icann.org/x/rAO4Aw

A copy of the notes may be found below.

Thank you.

With kind regards,

Brenda Brewer
MSSI Projects & Operations Assistant
ICANN - Internet Corporation for Assigned Names and Numbers


Notes (including relevant excerpts from the chat):
1.         Welcome
·         Greg Shatan: no audio only. Any changtes to SOIs? (none). (over 25 participants at start of call).
2.         Continued Discussion of Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.”
a.   Confirming the scope of the “Gap Analysis”
b.   Method(s) of assessing/performing the Gap Analysis?
·         Greg Shatan: Given the list discussion this seemed a logical choice as the first topic for the discussion today. Good points brought up by DM.
·         David McAuley: Based on my experience on WS1 it was my impression that rec. 12 was asking us to consider the gap analysis provided in WS1 and therefore not necessary to do another one.
·         Pedro da Silva: My conclusion is the opposite of the one by DM. There was an effort at the Istanbul meeting to start a gap analysis. What we had was an intense discussion and not a proper gap analysis. Based on this I conclude we have not completed a gap analysis and need to do so in WS2.
·         Greg Shatan: Unfortunately, Milton Mueller is not here but will read his email - supports the notion that we need to do a formal gap analysis. Other valid input from Philip Corwin.
·         Philip Corwin: If we do a gap analysis we cannot do it for specific issues (Chinese menu) we have to look at countries for all the aspects. Counsel at the end of WS1 confirmed that California law met the requirements - which is essentially a gap analysis. Now even if it would be recommended that ICANN be incorporated in another jurisdiction how would it then interact with the Empowered Community and PTI.
·         Paul McGrady: 2 questions - Why would we jump to finding a new home for ICANN because there is a gap in a subset - would we not first look at filling the gap under the current jurisdiction. Secondly if we do decide to move - How would we proceed to select another country? Would we look at all countries? How long would this take and how much would this cost.
·         Greg Shatan: Gap analysis is in two parts. The first is are there shortfalls in the current implementation of the recommendations - if not why would we look at another jurisdiction? If there is a gap it would seem logical to seek a simple solution which would not require moving incorporation. So we should do a gap analysis to confirm if there are gaps (but this does not need to be a work for the ages given our timeframe).
·         Pedro da Silva: One of the tools for helping us to decide if we need to consider re-incorporation should be the gap analysis.
·         David McAuley: I understand what PDS is saying but it would be good to know what we need to check for Jurisdiction is important.
·         Greg Shatan: Unless there is a critical that cannot be solved in California then the incorporation discussion should be ended.
·         Avri Doria: Some feel the gap analysis has not been properly done. Once this is done we would look at these gaps, if any, to see what solutions could be applicable - but moving incorporation would be a very last resort. But to be clear gap, for me, does not automatically imply moving jurisdiction.
·         Greg Shatan: Agree with AD.
·         Paul McGrady 2: I agree with Avri - gaps do not automatically= moving out of California.
·         Cheryl Langdon-Orr (CLO): Agree Avri
·         Greg Shatan: Uless there are other comments we should look at doing some form of an analysis without re-inventing the wheel or incurring significant legal costs should be done? We need, as a group, to initially identify any potential gaps and if these are confirmed then we can consider if these need to go to the lawyers. Would prefer assignment model - where people tell us what they will look at.
·         David McAuley (RySG): we should formulate an agreed base question as well - that we will be uniformly following as we review the report.
·         Greg Shatan: Support DM suggestion. We need a limited time to get this done - 2 weeks? No objections. Action Item: We will review the results at our October 10th meeting.
·         Pedro da Silva: So you are proposing that we divide amongst ourselves WS1 recommendations to look for gaps - if this is the case we should make a clear separation between requirements and implementation. For the EC this should be doable - we should have a table with the powers of the EC in one column listing the power and then another column listing the mechanisms for implementation.
·         Greg Shatan: why look alternatives if there is no gap.
·         Pedro da Silva: as pointed out by PC the EC is not membership.
·         David McAuley: Agree with GS that we should not look for new jurisdiction until there is a real gap that cannot be resolved otherwise. Should the rapporteurs should get a clear crisp mandate which has been checked by the co-chairs.
·         Greg Shatan: DM good suggestion. Action Item we should aim to have a completed gap analysis to present in Hyderabad.
·         Paul McGrady 2: Not just before we identify gaps, but before we identify gaps that can't be fixed by new mechanisms while staying put...
·         Paul McGrady 2: while staying put...
·         Philip Corwin: Didn't our expert and not inexpensive outside legal experts provide us with reasonable assurance that all the accountability powers of the designator model could be reasonably and effectively exercised under CA law?
·         Paul McGrady 2: @Phil - I thought they did and that was what was "sold" to the community before the Marrakech vote.
·         Greg Shatan: The answer is yes but we have been asked to validate this as a community opinion vs a US legal opinion.
·         Philip Corwin: Also, BTW, since the Board was effectively able to veto the member model maybe we should take their temperature on whether they have any sympathy for considering an ICANN organization change of jurisdiction in the near term. As they have accepted the designator model under CA law, should we expend any substantial time or $ on looking at other jurisdictions to cure "gaps" if in the end the Board is going to tell us that they reject the concept of moving at this time? They did dispatch the new CEO to Capitol Hill two weeks ago to tell US Senators that ICANN had full intent to remain in the USA.
·         Pedro da Silva: Support DM suggestion to prepare a set of questions.
·         Greg Shatan: Is there anything beyond the question beyond the recommendation and how it is implemented. Uncertain about PDS issues. We will produce a question and then proceed to the analysis. Would ask participants to work with the list for questions. Meeting adjourned.


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160927/ef4d8b46/attachment-0001.html>