[council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

Sun Sep 25 13:37:28 UTC 2016

Works for me. Thanks, Phil, for doing it.

 Ed

----------------------------------------
 From: "James M. Bladel" <jbladel at godaddy.com>
Sent: Sunday, September 25, 2016 2:44 AM
To: "Phil Corwin" <psc at vlaw-dc.com>, "egmorris1 at toast.net" <egmorris1 at toast.net>, "Drazek, Keith" <kdrazek at Verisign.com>, "Paul McGrady" <policy at paulmcgrady.com>
Cc: "GNSO Council List" <council at gnso.icann.org>
Subject: Re: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request   
 Assuming the others agree, this sounds like a good plan and thanks Phil.

 J.

   From: Phil Corwin <psc at vlaw-dc.com>
Date: Saturday, September 24, 2016 at 16:58
To: Edward Morris <egmorris1 at toast.net>, Keith Drazek <kdrazek at verisign.com>, Paul McGrady <policy at paulmcgrady.com>
Cc: James Bladel <jbladel at godaddy.com>, GNSO Council List <council at gnso.icann.org>
Subject: RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

Paul and Edward, thanks for the feedback.  

I can work up some draft language for the four of us to consider, and if we can reach consensus we can share it with the rest of Council.  

That work?  

Philip S. Corwin, Founding Principal  

Virtualaw LLC  

1155 F Street, NW  

Suite 1050  

Washington, DC 20004  

202-559-8597/Direct  

202-559-8750/Fax  

202-255-6172/Cell  

Twitter: @VlawDC  

"Luck is the residue of design" -- Branch Rickey  

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Edward Morris
Sent: Saturday, September 24, 2016 10:09 AM
To: Phil Corwin; Drazek, Keith; Paul McGrady
Cc: James M. Bladel; GNSO Council List
Subject: RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request  

Paul, 

Thank you for everything you've done to focus our attention on the possibility of budget implosion. 

I agree that Phil has done a great job of bridging the gaps. Please include me, as well, on future e-mail exchanges. 

Thanks, 

Ed 

----------------------------------------

From: "Paul McGrady" <policy at paulmcgrady.com>
Sent: Saturday, September 24, 2016 2:38 PM
To: "Phil Corwin" <psc at vlaw-dc.com>, "Drazek, Keith" <kdrazek at Verisign.com>
Cc: "James M. Bladel" <jbladel at godaddy.com>, "GNSO Council List" <council at gnso.icann.org>
Subject: RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request   

Phil, Keith and Ed,  

Thanks so much for your leadership on this.  I am happy to participate in that email exchange and think, based on Phil's last email, that we are already quite close.  

Best,  

Paul  

From:owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Phil Corwin
Sent: Friday, September 23, 2016 4:11 PM
To: Drazek, Keith <kdrazek at Verisign.com>
Cc: Paul McGrady <policy at paulmcgrady.com>; James M. Bladel <jbladel at godaddy.com>; GNSO Council List <council at gnso.icann.org>
Subject: RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request 

Keith:  

Apologies for the delay in replying but it's been a busy week.  

Glad that you personally agree with my assessment - and I assure you that I share the RySG concern about budget creep. So does the BC generally, although on our BC call yesterday there was some concern that the draft Resolution takes a somewhat inflexible stand on obtaining additional funding if it is necessary to complete the work on key issues such as ICANN transparency.  

I don't think that in the six days between now and the Council call where this Resolution will be considered we will have the bandwidth to review all of the WS2 subgroups, get feedback from the rapporteurs, and guesstimate which ones are more likely to make valid claims for the use of outside counsel, much less project what such use might cost. Also, given that there is a Legal Committee to perform the review function for such outside counsel requests, it may be inappropriate for Council to interject on which topics are more deserving of outside legal input.  

That said, looking at the draft Resolution, I'd posit that 90% of it is non-controversial and that the part we've been discussing could probably be made broadly acceptable with some modest wordsmithing to make the points that:  

·         Council expects the working groups to be restrained and judicious in their use of outside legal assistance, and the Legal Committee to exercise reasonable and effective controls on such expenditures  

·         The aim should be to work within the constraints of the approved budget, and any additional expenditures beyond it should be approved only when deemed essential to completing the work (a tough standard but not as harsh as the "extraordinary circumstances' standard that is in the draft).  

·         Council expects that the working groups will receive necessary support and assistance from ICANN staff.  

·          Council believes that revisiting the jurisdiction or organization of the ICANN legal entity should not be undertaken by the Jurisdiction subgroup because the new accountability measures are all premised on California jurisdiction, any near-term changes in organizational jurisdiction could be extremely destabilizing for ICANN -- and because such exploration would likely require outside  legal input substantially in excess of the WS2 budget (this is a nuanced difference from the current draft, which seems to say that such exploration should be viewed as out of scope solely for budgetary reasons).  

What I would propose is that you and I, along with Paul and Ed if they wish given their input on this (but certainly not excluding any other Councilor who wishes to be involved) exchange some emails between now and the Council meeting to see if we can't work up some proposed modifications that would satisfy everyone's concerns and could be adopted as a friendly amendment on next week's call.   

Is that feasible?  

Best regards, Philip  

Philip S. Corwin, Founding Principal  

Virtualaw LLC  

1155 F Street, NW  

Suite 1050  

Washington, DC 20004  

202-559-8597/Direct  

202-559-8750/Fax  

202-255-6172/Cell  

Twitter: @VlawDC  

"Luck is the residue of design" -- Branch Rickey 

From: Drazek, Keith [mailto:kdrazek at verisign.com]
Sent: Wednesday, September 21, 2016 9:00 PM
To: Phil Corwin
Cc: Paul McGrady; James M. Bladel; GNSO Council List
Subject: Re: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request 

Thanks Phil. Speaking personally, I agree generally with your assessment. That said, the RySG still has significant concerns about the potential for budget creep. Just thinking out loud...could we make explicit, or carve out, the very limited and specific areas where we think the WS2 effort needs to have a bit more flexibility? Regardless, I fully expect the Board would need to approve any increase to the CCWG WS2 budget.  

Regards, 

Keith 

On Sep 21, 2016, at 12:44 PM, Phil Corwin <psc at vlaw-dc.com> wrote: 

Keith et al:  

Thanks for conveying the views of the RySG, and for pointing out some key exchanges between CEO Marby and members of the Senate Judiciary Committee on this subject.  

I think it's important for Council members to disaggregate the question of availability of funding for independent legal advice to WS2 subgroups from the question of ICANN's organizational jurisdiction. While the latter question could require substantial outside legal advice(but probably will not, as the subgroup does not seem inclined to delve deeply into it), it should probably not dictate our views on the draft Resolution addressing the former.  

The Jurisdiction subgroup met this morning; Paul was on the call, and other Council members may have been. Almost the entire call was dedicated to discussing these two questions:  

                2. Approach to ICANN's Place of Incorporation and Headquarters Location   

a. Should the scope of the Jurisdiction topic include examining the effects of ICANN's place of incorporation and location (for example, on the actual operation of policies and accountability mechanisms and on the settlement of disputes), or should this be out of scope?              

b. Should the scope of the Jurisdiction topic include the possibility of recommending that ICANN be directed to change its place of incorporation and/or headquarters location, or should this be out of scope?  

The consensus within the group seemed to favor not using a restricted version of the subgroup's "scope" to prevent any discussion of the matter - but to not spend much time on it if it seemed clear that the majority of the subgroup did not favor any change in ICANN's own jurisdiction, and instead address such issues as choice of law in ICANN contracts and jurisdictional matters relevant to ICANN hubs and offices outside the U.S. And it did seem clear that the majority of the groups' participants do not wish to delve deeply into and reopen the matter of ICANN's U.S. incorporation. So I think the prospects of significant sums of outside legal advice being requested on that are quite low.  

My own personal view on this ICANN jurisdiction matter is well known, as I have both written about it and spoke at the Helsinki lightning round --  I favor memorializing ICANN's U.S. incorporation in a Fundamental Bylaw, as has already been done for the Empowered Community and the PTI.  But I have no plans to push that position if the consensus within the subgroup is to move on to other jurisdictional matters.  

So any concern I have about the adequacy of the budget for outside legal support of WS2 subgroups is unrelated to the jurisdiction matter, and is grounded in my belief that ICANN legal may not be counted on to give fully comprehensive advice on such matters as transparency/document access, and staff and Board accountability standards. WS2 issues were put off not because they are unimportant, but because they were not required to be resolved in advance of the transition.  

My understanding of the cost control measures for WS2 are that any expenditure of funds for outside legal counsel must be considered and approved by the Legal Committee, and that any request for funding beyond the $1.4 million being allocated must be approved by that same Legal Committee and then approved by the Board. Those are tight controls not present in WS1.  

With that background, and turning to the draft Resolution, I would propose consideration of:  

·         Whether the "extraordinary circumstances" standard proposed in Resolved clause 3 does not set too high a bar, given the tough cost control measures already established for WS2 and the inability to foresee where all of the multiple subgroups may require independent legal advice.  

·         Changing the language of Resolved clause 4 to express the consensus view of Council that ICANN should remain incorporated within the U.S. (because it's a stable and predictable legal environment; has been ICANN's jurisdictional locus for two decades; all the accountability measures have been designed to work within the context of CA law; is consistent with the incorporation of the EC and PTI; etc.) - rather than implying that it should not be discussed at all for budgetary reasons -- which seems similar to the "out of scope" position that did not have significant backing with the subgroup, even though the consensus within the subgroup seems to be to leave U.S. incorporation in place and move on to secondary jurisdiction matters once we have had some discussion.   

If changes are made to resolved Clause 4 then there should probably be some corresponding changes to Whereas clause 4 as well.  

I hope those thoughts are useful to other Council members as they consider this matter.  

Best to all, Philip   

Philip S. Corwin, Founding Principal  

Virtualaw LLC  

1155 F Street, NW  

Suite 1050  

Washington, DC 20004  

202-559-8597/Direct  

202-559-8750/Fax  

202-255-6172/Cell  

Twitter: @VlawDC  

"Luck is the residue of design" -- Branch Rickey 

From: Drazek, Keith [mailto:kdrazek at verisign.com]
Sent: Wednesday, September 21, 2016 11:23 AM
To: Phil Corwin
Cc: Paul McGrady; James M. Bladel; GNSO Council List
Subject: RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request 

Further, on the topic of ICANN's jurisdiction, it's probably worth noting the testimony of Goran Marby before last week's Senate Judiciary hearing Chaired by Senator Cruz.  

Here's the link to the hearing webcast:  http://www.judiciary.senate.gov/meetings/protecting-internet-freedom-implications-of-ending-us-oversight-of-the-internet  

At 1:24:24, Goran responds to questions from Senators Lee, Grassley and Cruz on ICANN's incorporation, bylaws, headquarters, etc.  

·         Senator Lee asks, "Is ICANN committed to remain domiciled in the United States?"  Goran's response is "Yes." He also notes that the basis of ICANN is built on California law, not to mention its 2000+ contracts.  

·         In response to a question from Senator Grassley about ICANN relocating, Goran says, "It would be very hard to do. It would be easier to start a new ICANN elsewhere without California law as basis."  

·         In response to a question from Senator Cruz, Goran says, "There is no intention (to relocate ICANN). It would be highly improbable.  

We should be prudent with both time and money and avoid diving into the rathole of changing ICANN's jurisdiction or domicile.  

Regards,  

Keith  

From: Drazek, Keith
Sent: Wednesday, September 21, 2016 5:09 AM
To: Phil Corwin
Cc: Paul McGrady; James M. Bladel; GNSO Council List
Subject: Re: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request 

Thanks Phil and Paul for the input.  

The RySG has significant concerns about any increase/expansion of the proposed WS2 budget and would likely oppose language suggesting (a) reopening discussions on ICANN's  incorporation and/or physical headquarters, and (b) the need for additional funds to support that effort. All the reforms we developed in WS1 assume California not-for-profit law and that simply isn't going to change in WS2. I also do not believe the RySG would agree to lowering the threshold for additional funds to be solely a determination of the Legal Committee.  

Regards, 

Keith 

On Sep 20, 2016, at 4:44 PM, Phil Corwin <psc at vlaw-dc.com> wrote: 

Appreciate the thoughts, Paul.  

In his role as rapporteur for the Jurisdiction subgroup, Greg Shatan has circulated thoughts this week on whether and how deeply the Jurisdiction subgroup should explore the subject of ICANN's organizational jurisdiction, and that will be the focus of the next subgroup call at 1300 UTC tomorrow. So its intent in that regard may be clearer within the next 24 hours.  

Setting aside the jurisdiction issue, I would like to see the GNSO statement on this express some concern that the amount budgeted for impartial outside legal assistance may be inadequate, and to endorse  a lower threshold for making additional funds available if recommended by the Legal Committee - and certainly not the "extraordinary circumstances" standard proposed in the current draft.   

One thought I have is that the expenditure ceiling might be loosened somewhat by advocating that up to an additional $700,000 be available to be allocated (a 50% increase beyond the $1.4M now budgeted) solely upon a finding by the Legal Committee that such expenditure is justified, with a higher standard in place for requests that would take spending beyond that. That might prove a reasonable balance between wanting to assure adequate resources while  keeping spending under control.  

Best to all,  

Philip  

Philip S. Corwin, Founding Principal  

Virtualaw LLC  

1155 F Street, NW  

Suite 1050  

Washington, DC 20004  

202-559-8597/Direct  

202-559-8750/Fax  

202-255-6172/Cell  

Twitter: @VlawDC  

"Luck is the residue of design" -- Branch Rickey 

From: Paul McGrady [mailto:policy at paulmcgrady.com]
Sent: Tuesday, September 20, 2016 4:34 PM
To: Phil Corwin; 'James M. Bladel'; 'GNSO Council List'
Subject: RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request 

Thanks Phil.  I'll need to run this past the IPC of course, but my initial thoughts are:  

I guess I read James' rather artful language as a means of pointing out the lack of adequate funding rather than an instruction that WS2 shouldn't look at the formation jurisdiction issue.  Perhaps we can strengthen the language a bit to make that clear.  How about:  

"It is the position of the GNSO Council that any choice by WS2 participants to revisit the formation jurisdiction or nature of organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, namely California, would not be adequately supported by this projected budget as any change in formation jurisdiction or nature of organization of the ICANN legal entity would necessarily lead to undoing much of the work of Workstream 1.  In the event that WS@ participants open up this topic, additional funding for legal advice will become necessary."  

Does that work?  

In a related thought, I'm of the opposite view that formation jurisdiction or nature of organization of the ICANN legal entity should not be reopened in WS2 as it is not inevitable that it turn out the way you hope, with a fundamental bylaw making California permanent (or as permanent as possible).    

Best,  

Paul  

From:owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Phil Corwin
Sent: Monday, September 19, 2016 5:40 PM
To: James M. Bladel <jbladel at godaddy.com>; GNSO Council List <council at gnso.icann.org>
Subject: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request
Importance: High 

James:  

The following remarks are my personal views, and I will share them with the BC Executive Committee and BC members prior to our September 29th meeting to assure that any statement I make/position I take at that meeting is consistent with the consensus within the BC.  

That said, I have some significant concerns about the wording of the draft Resolution, and shall now set them forth.  

Use of Budget Constraints to limit range of discussion within WGs_-  

Your cover note states, "I would like to draw your attention to WHEREAS #4 and RESOLVED #4, in which I attempted to capture the concerns raised by Phil and Paul and others regarding revisiting the subject of ICANN Jurisdiction in WS2". My comments on this draft resolution are solely my own and I will let Paul chime in, or not, as he sees fit.  

Whereas #4 states --  "The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not support revisiting the topic of the jurisdiction of ICANN"s organization."  

Resolved #4 states - "It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, is not supported by this projected budget."  

My very public personal position on ICANN's organizational jurisdiction is that it was a mistake not to resolve this matter during WS1 (and the failure to do so is now being cited by Congressional critics of the IANA Transition), and that ICANN's U.S. incorporation should be enshrined in a Fundamental Bylaw as an expedited outcome of WS2.  

Notwithstanding that clear personal view, I have concerns about the proposed language cited above. For one thing, it is presently ambiguous - it is not clear whether the import of the language is that:  

·         The projected budget should be increased so that "the topic of the jurisdiction of ICANN"s organization" can be revisited or addressed (the word "revisited" is also problematic, as it implies that some conclusive decision was made on this matter during WS2, whereas the record is to the contrary), or  

·         The topic of organizational jurisdiction should be off-limits in WS2 due to budget constraints  

Again, my personal view is that this topic of ICANN's organizational jurisdiction should be further addressed in WS2 - and should be definitively resolved through the adoption of a Fundamental Bylaw enshrining US incorporation.  

Notwithstanding that personal view, I am opposed to any Resolution which takes the position that budget considerations should limit the scope of inquiry and discussion of any WS2 subgroup. The budget, and especially that for impartial outside legal expertise on accountability matters on which ICANN Legal may have an inherent bias (such as transparency or staff accountability) should be adequate to support the necessary work, rather than suggesting that the work should be constrained to fit within the scope of the budget.  

Adequacy of the budget for outside legal expertise  

The other problem I have with the draft Resolution is that it does not speak at all to the general concerns I and others have expressed about the adequacy of the budget for outside legal expertise for WS2 activities, as well as the proposed process for obtaining authorization of additional funding.   

My recollection is that the WS2 legal budget is just one-tenth of the amounts expended for WS1 -- $1.4M compared to $14M. I would certainly anticipate that WS2 outside legal expenses will be substantially less than in WS1 because major revisions and drafting of Bylaws and Articles of Incorporation will not be required. Yet there is still reason to believe that a 90% reduction is excessively severe and likely to fall short of requirements for a quality and fully considered work product.  

It is also my recollection that under the proposed budget and accompanying procedures, even if the Legal Committee agrees that additional funding is required at some point in the process, the Board has unbridled discretion and decisional authority to accept, reject, or modify such a request for additional funds. This is very troubling given that WS2 addresses such matters as organizational transparency, and Board and staff accountability.   

Therefore, at this time I cannot personally support the proposed language in Resolved clause #3 - "The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or request for additional funding will be considered only in extraordinary circumstances." (Emphasis added)  

An "extraordinary circumstances" standard for authorizing additional funds is, in my opinion, far too high given that the budget for WS2 was set by a small group and only put out for public reaction after the fact. Further, it is absolutely unacceptance as a standard for consideration of additional funding requests - every such request should be considered without bias on its own separate merits, and not face a high hurdle simply because it exceeds a legal assistance budget that some Council and community members already fear may be inadequate to support the necessary work delegated to WS2.   

Summing up, my personal view is that this Resolution should be modified to:  

1.       Eliminate any suggestion that discussion of ICANN's organizational locus of incorporation is off-limits for the Jurisdiction subgroup based upon budget considerations  

2.       Express general concern about the adequacy of the funds budgeted for outside legal assistance, as well as the proposed process for deciding whether additional funds should be allocated at a future point of time.  

I thank you and my fellow Councilors for considering these views, and look forward to further discussion of this matter.  

Regards, Philip  

Philip S. Corwin, Founding Principal  

Virtualaw LLC  

1155 F Street, NW  

Suite 1050  

Washington, DC 20004  

202-559-8597/Direct  

202-559-8750/Fax  

202-255-6172/Cell  

Twitter: @VlawDC  

"Luck is the residue of design" -- Branch Rickey 

From:owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of James M. Bladel
Sent: Monday, September 19, 2016 4:02 PM
To: GNSO Council List
Subject: [council] Draft Motion - GNSO Validation of CCWG-Accountability Budget Request 

Council Colleagues -   

Attached and copied below, please find a draft motion for consideration during our next GNSO Council call (29 SEP), that examines the subject of the proposed budget & cost control mechanisms for CCWG-ACCT and Work Stream 2.     

In particular, I would like to draw your attention to WHEREAS #4 and RESOLVED #4, in which I attempted to capture the concerns raised by Phil and Paul and others regarding revisiting the subject of ICANN Jurisdiction in WS2.  Please review these provisions closely, and make sure that they accurately reflect these points.  

Thank you,  

J.  

Draft Motion - GNSO Validation of CCWG-Accountability Budget Request  

WHEREAS,   

1.      Per its Charter, the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget and cost-control processes for the CCWG-Accountability activities for FY17, and has also developed a historical analysis of all the transition costs to date (see  https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf).  

2.      The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST. This request for validation was received on 23 June.  

3.      Following review and discussion during ICANN56, the GNSO Council  requested a webinar on this topic which was held on 23 August (see transcript at  https://gnso.icann.org/en/meetings/transcript-ccwg-accountability-webinar-23aug16-en.pdf, recording at  http://audio.icann.org/gnso/gnso-ccwg-accountability-webinar-23aug16-en.mp3 and AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/).    

4.      The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not support revisiting the topic of the jurisdiction of ICANN"s organization.  

5.      The GNSO Council has discussed and reviewed all the relevant materials.   

RESOLVED,  

1.      The GNSO Council hereby accepts the proposed CCWG-Accountability FY17 budget, as well as the cost-control processes presented in conjunction with the CCWG budget (see  https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf).    

2.      The GNSO Council expects to receive regular updates on actual expenditures as tracked against this adopted budget, and reserves the right to provide further input on the budget allocation in relation to the CCWG-Accountability related activities.  

3.      The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or request for additional funding will be considered only in extraordinary circumstances.   

4.      It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, is not supported by this projected budget.  

5.      The GNSO Council requests the GNSO Secretariat to communicate this resolution to the CCWG-Accountability Chairs, and to the office of the ICANN CFO.       

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