[council] Fwd: [FormerMembersCCWG-AP] Correspondence ICANN - Anne Aikman-Scalese
Anne ICANN
anneicanngnso at gmail.com
Tue Aug 22 11:44:12 UTC 2023
Dear Council Leadership and Members,
In relation to the AOB item re the ICANN Grant Program that evolved from
the Board's approval of the CCWG Auction Proceeds Final Report, ICANN Org
has re-established a list of consenting former CCWG members for the purpose
of community consultation. As a former CSG voting delegate to the CCWG
Auction Proceeds, I posed certain questions after consultation with some
CSG members. The questions and ICANN Org's responses to the questions
appear below. Notably, no one knows of a procedure in place for the Board
to modify a Final Recommendation of a CCWG that the Board has already
adopted. So to borrow a term from cricket, that is a bit of a "sticky
wicket". I think other Councilors will have further comments on the
substance of the proposed solution of private contracting to eliminate
resort to Request for Reconsideration and Independent Review as to grant
decisions (in lieu of a ByLaws amendment to accomplish this as recommended
by the CCWG.)
Thank you,
Anne
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso at gmail.com
---------- Forwarded message ---------
From: Negar Conrad <negar.conrad at icann.org>
Date: Thu, Aug 17, 2023 at 8:33 AM
Subject: Re: [FormerMembersCCWG-AP] Correspondence ICANN - Anne
Aikman-Scalese
To: Anne ICANN <anneicanngnso at gmail.com>
Cc: FormerMembersCCWG-AP at icann.org <FormerMembersCCWG-AP at icann.org>, Susan
Payne <susan.payne at comlaude.com>, Paul McGrady <paul at elstermcgrady.com>,
lschulman at inta.org <lschulman at inta.org>
Dear Anne,
Thank you very much for your note and clarifying questions. Xavier is
currently out of office so I’m responding to your email instead. Please see
our responses, inline, below.
1. The Board adopted the Final Recommendations of the CCWG Auction
Proceeds in June of 2022 and proceeded to instruct ICANN Org to implement.
The Board adopted
<https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-12-06-2022-en#2.c>
the Final Recommendations of the CCWG on Auction Proceeds on 12 June 2022
and directed ICANN org to take the actions as specified in the accompanying
Scorecard
<https://www.icann.org/en/system/files/files/scorecard-ccwg-ap-final-recommendations-board-action-12jun22-en.pdf>,
and “to ultimately implement an ICANN Grant Giving Program that is aligned
with ICANN's mission and based in sound governance practices.”
2. It appears that it was determined that no IRT was necessary
in order to proceed.
The CCWG did not specify the need for an IRT.
3. The CCWG Guidelines appear to allow for ICANN to proceed to
implement in the absence of an IRT being requested by the CCWG. See what I
think are the CCWG guidelines at the link below but I am not certain this
version is current. (Could you please confirm by reply all?)
https://ccnso.icann.org/sites/default/files/file/field-file-attach/2016-12/ccwg-principles-recommendations-07nov16-en.pdf
[ccnso.icann.org]
The CCWG Guidelines are a community document providing a general framework
for the establishment, operations and closure of CCWGs. They are not Board
approved. Upon consultation with ICANN org colleagues, I understand that
the version that you cited is the most recent version, which the GNSO and
ccNSO, as chartering organizations to establish this framework, have both
adopted.
4. The Board considers the adoption of the Final Recommendation
to amend the ByLaws to exempt grant decisions by the independent panel from
the Request for Reconsideration and Independent Review Process as being
unwieldy and too complicated, causing too much delay. The Board has
recommended transactional remedies in the nature of covenant not to sue
ICANN for grant applicants.
The Board has signaled its intent to maintain the CCWG’s recommendation
that grant decisions by the independent panel should be exempted from the
Reconsideration and IRP Processes, but that the manner of implementation of
that community-based recommendation should be moved into a contract with
applicants as opposed to changes to ICANN’s core accountability mechanisms
as defined in the Bylaws.
5. Some members of CSG have questioned the procedure and the
efficacy of the recommended solution.
[Note, this appears to be a statement that does not require confirmation
from ICANN.]
6. The CCWG list has been reestablished for the purpose of
facilitating dialogue among consenting former members of the CCWG Auction
Proceeds, though this is not an attempt to convene an IRT.
A mailing list of prior CCWG members that consent to join the list has been
established, as one of the communication avenues that ICANN org has planned
to keep the community up to date, for the purpose of facilitating updates
to the former members in a transparent and publicly archived list. Any
dialogue among those former members would be publicly archived as well.
Xavier, could we please see the proposed text of the Resolution to override
the adopted Final Recommendation of the CCWG Auction Proceeds and could we
please know the date at which this Resolution will next be considered by
the Board?
While the Board has not taken its decision yet, as Tripti noted in her
recent email, the Board intends to direct an implementation path that both
upholds the CCWG-AP’s recommendation that individual application decisions
should not be challenged through ICANN’s accountability mechanisms, while
also keeping ICANN’s accountability mechanisms unchanged within the Bylaws.
This will also support the CCWG-AP’s intention to to lower complexity and
protect the total amount of proceeds available for applicants. The Board is
scheduled to further consider this matter in September.
The Board’s intended resolution and rationale will detail all of the
Board’s motivation for changing the implementation path, including a
discussion that the use of contractual terms and conditions as contemplated
is a limited and narrow solution that could only be used when there is a
community-developed and supported recommendation to limit the usage of
ICANN’s accountability mechanisms.
Separately, is there a specific procedure applicable to overriding an
adopted Final Recommendation of a Cross Community Working Group?
We are not aware of a defined process (such as those defined in the Bylaws
to govern consideration of recommendations from the GNSO Council’s PDP or a
ccPDP) for the consideration of CCWG recommendations.
Thank you for your continued interest in this important program and your
efforts to help make it a success.
Kind regards,
Negar Conrad
ICANN
Director, Implementation Operations
*From: *FormerMembersCCWG-AP <formermembersccwg-ap-bounces at icann.org> on
behalf of Anne ICANN <anneicanngnso at gmail.com>
*Date: *Monday, August 14, 2023 at 11:29 AM
*To: *"erika at erikamann.com" <erika at erikamann.com>
*Cc: *"FormerMembersCCWG-AP at icann.org" <FormerMembersCCWG-AP at icann.org>,
Susan Payne <susan.payne at comlaude.com>, Paul McGrady <paul at elstermcgrady.com>,
"lschulman at inta.org" <lschulman at inta.org>
*Subject: *Re: [FormerMembersCCWG-AP] Correspondence ICANN - Anne
Aikman-Scalese
Many thanks Xavier and Erika, for continuing this dialogue. In order to be
able to brief the CSG on this proposed action, I need to get clarification
on the following:
1. The Board adopted the Final Recommendations of the CCWG Auction Proceeds
in June of 2022 and proceeded to instruct ICANN Org to implement.
2. It appears that it was determined that no IRT was necessary in order to
proceed.
3. The CCWG Guidelines appear to allow for ICANN to proceed to implement in
the absence of an IRT being requested by the CCWG. See what I think are
the CCWG guidelines at the link below but I am not certain this version is
current. (Could you please confirm by reply all?)
https://ccnso.icann.org/sites/default/files/file/field-file-attach/2016-12/ccwg-principles-recommendations-07nov16-en.pdf
[ccnso.icann.org]
<https://urldefense.com/v3/__https:/ccnso.icann.org/sites/default/files/file/field-file-attach/2016-12/ccwg-principles-recommendations-07nov16-en.pdf__;!!PtGJab4!9hYZpH-henVPI1fsIhGPkOH0x-zrGCoc-TGGBkSsRyoYl4LpHaoiQz1YJOGjSdzYVJiaIHXNzaUZO9Bzfwi3lHj3T-7BUSE$>
4. The Board considers the adoption of the Final Recommendation to amend
the ByLaws to exempt grant decisions by the independent panel from the
Request for Reconsideration and Independent Review Process as being
unwieldy and too complicated, causing too much delay. The Board has
recommended transactional remedies in the nature of covenant not to sue
ICANN for grant applicants.
5. Some members of CSG have questioned the procedure and the efficacy of
the recommended solution.
6. The CCWG list has been reestablished for the purpose of facilitating
dialogue among consenting former members of the CCWG Auction Proceeds,
though this is not an attempt to convene an IRT.
*Xavier, could we please see the proposed text of the Resolution to
override the adopted Final Recommendation of the CCWG Auction Proceeds and
could we please know the date at which this Resolution will next be
considered by the Board? *
*Separately, is there a specific procedure applicable to overriding an
adopted Final Recommendation of a Cross Community Working Group? *
*I need to be able to confirm the above assumptions and to obtain answers
to the above questions in order to advise CSG members and receive
instructions on this matter.*
Thank you!
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso at gmail.com
On Thu, Aug 10, 2023 at 7:33 AM Erika Mann <erika at erikamann.com> wrote:
Thank you Xavier -
This is well understood.
I will reach out to Ching and either we will forward you something together
or I will respond individually.
All is fine, Xavier.
Hopefully you’re enjoying the summer period.
Warm regards,
Erika
Erika Mann
Senior Advisor Covington & Burling
erika at erikamann.com
+32 498 121354
Sent from my iPhone
On Aug 10, 2023, at 4:12 PM, Xavier Calvez <xavier.calvez at icann.org> wrote:
Dear Erika,
Thank you for reaching out. I hope all is well.
We have shared on this list information about a Board decision being
considered but do not have any specific questions to be addressed. However,
we welcome any feedback you, Ching, or any former member of the CCWG AP on
this list would like to share. We can not speak on behalf of the GNSO but I
believe there are members of the GNSO on this list who may be able to help.
Thank you.
Best,
Xavier
Xavier Calvez
ICANN
*SVP Planning and CFO*
*12025 Waterfront Drive, Suite 300*
*Los Angeles, California 90094*
*USA *
*Office phone:* +1 310 301 5800
*Cell phone:* +1 805 312 0052
*Skype:* Xavier.calvez.icann
*From: *FormerMembersCCWG-AP <formermembersccwg-ap-bounces at icann.org> on
behalf of Erika Mann <erika at erikamann.com>
*Date: *Thursday, August 10, 2023 at 4:46 AM
*To: *Giovanni Seppia <giovanni.seppia at icann.org>
*Cc: *"formermembersccwg-ap at icann.org" <formermembersccwg-ap at icann.org>
*Subject: *Re: [FormerMembersCCWG-AP] Correspondence ICANN - Anne
Aikman-Scalese
Dear Giovanni, dear Xavier -
Would you, the board, the GNSO, be interested in receiving from the
co-chairs of the former CCWG an informal opinion on the remaining questions?
Kind regards,
Erika
Erika Mann
Senior Advisor Covington & Burling
erika at erikamann.com
+32 498 121354
Sent from my iPhone
On Aug 10, 2023, at 12:02 PM, Giovanni Seppia <giovanni.seppia at icann.org>
wrote:
Dear former members of the CCWG-AP,
As anticipated, please see below the correspondence between ICANN and Anne
Aikman-Scalese that occurred during the past weeks.
Now that this list has been created, we encourage conversation to continue
here.
Best,
Giovanni
*From: *Xavier Calvez <xavier.calvez at icann.org>
*Date: *Saturday, 5 August 2023 at 02:49
*To: *Anne ICANN
*Cc: *XXX
*Subject: *Re: [Ext] Re: Message from Tripti Sinha to Former CCWG-AP Members
Dear Anne,
Thank you for your response below and for further clarifying your view. As
you are likely aware, the Board did not yet formally revisit its decision
on the CCWG-AP’s recommendation 7. While many of the concerns you raised
(or reported on behalf of others) were already part of the Board’s
deliberations, the Board wanted to make sure that its intended outreach was
complete before acting.
As indicated earlier, we intend to share the content of the emails that
Tripti, you, and I have exchanged with the newly created list of former
CCWG members who have consented to be included to provide visibility to the
concerns you have shared and the responses provided.
We also intend to further address your points below as a response to the
above list, once we will have posted the previous email communication in it
(including your email below). These points are addressed within the Board’s
rationale for the recommended decision relative to recommendation #7.
Thank you again for your interest on this topic and for taking the time to
share your thoughts. The communication that is resulting from it helps
to ensure
that the Board and org remain accountable to the community.
Best regards,
Xavier
Xavier Calvez
ICANN
*SVP Planning and CFO*
*From: *Anne ICANN
*Date: *Thursday, July 27, 2023 at 8:24 AM
*To: *Xavier Calvez <xavier.calvez at icann.org>
*Cc: *XXX
*Subject: *Re: [Ext] Re: Message from Tripti Sinha to Former CCWG-AP Members
Thanks Xavier. As I am a CSG appointed delegate in this matter, I cannot
provide a substantive response to your explanation. Based on the feedback
received thus far on the CSG mailing list and the GNSO Council list, it
appears the timing of this proposed Board Resolution (TODAY?) is quite
concerning given that it modifies a Recommendation contained in the CCWG
Final Report without adequate prior consultation with the ICANN community.
Significant concerns have been raised by some, not only about procedure,
but also about the substantive effectiveness of the chosen path.
No one is more interested than I in seeing the ICANN Grant Program move
forward. I'm sure CSG members feel similarly. Nonetheless, legitimate
concerns have been raised about the timing and the methods chosen for
modifying a CCWG Recommendation. The actual Resolution language and the
timing of the action were not sent in the previous notification.
Accordingly, it would seem appropriate to defer any final action on the
proposed Resolution to allow for further discussion.
Please include this comment on the list you are now establishing and I do
give consent for the posting of this and prior comments communicated. (
I have already authorized Giovanni to add me to that list.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
On Thu, Jul 27, 2023 at 8:04 AM Xavier Calvez <xavier.calvez at icann.org>
wrote:
Dear Anne,
Thank you for your response to Tripti regarding the Board’s anticipated
action on the use of ICANN Accountability Mechanisms in the ICANN Grant
Program. This message is in response to the email you sent last week
(below). I know that Tripti and Maarten are in receipt of your email from
yesterday and will share its content with the Board.
You raised several points, and I wanted to confirm that the org’s Grant
Program Core Team and Steering Committee, as well as the Board, have been
carefully considering these items.
While the Board has not taken its decision yet, I want to confirm to you
that the org and the Board carefully considered and discussed the impact of
the original recommendation on both applicants and third parties. As the
org team considered the impact of seeking a fundamental Bylaws change that
altered the scope of ICANN’s Independent Review Process and the
Reconsideration Request Process while making sure that those changes were
as narrowly tailored to the CCWG-AP’s recommendations as possible,
significant concerns were uncovered. While the amendments would equally
impact applicant and third-party access to accountability mechanisms, the
contemplated amendments would actually be quite narrow in impact and could
create significant loopholes for the use accountability mechanisms by
either applicants or third parties to still challenge actions within the
Grant Program. The Board’s revised action was reached after evaluating
other ways to achieve as much of the CCWG-AP’s intended goal as possible,
while also upholding ICANN’s core commitments to accountability and to
having its accountability mechanisms remain available. The Board’s
resolution and supporting rationale (if adopted) will provide additional
detail.
As to your notes regarding the limited review opportunities that org is
considering within the Grant Program, to the extent such opportunities will
be built into the Program, they are currently contemplated to be only for
use by the impacted grant applicant, and not for third parties, and will be
limited to procedural items that could arise along the path of evaluation
of the applicant and application. They are contemplated to be lightweight
mechanisms in line with global grant program best practices, and not
appeals of issues such as grant amount, as you also caution against.
On a procedural note, I want to confirm that the email you received was
sent to all former CCWG-AP members. For transparency, we will be moving
these communications back onto a publicly archived mailing list, and we
think that the issues raised in your email (and our response) are important
parts of continuing the dialogue for the benefit of the community. Please
indicate if you are willing to be subscribed to the new publicly archived
mailing list, and if you agree to us posting your comment and our response
within that list.
Thank you for your interest on this important program, and your time and
efforts offered to the ICANN community to make this program successful.
Thank you.
Best,
Xavier
Xavier Calvez
ICANN
*SVP Planning and CFO*
*From: *Anne ICANN
*Date: *Thursday, July 20, 2023 at 12:34 PM
*To: *Wendy Profit
*Cc: *XXX
*Subject: *[Ext] Re: Message from Tripti Sinha to Former CCWG-AP Members
Many thanks, Tripti.
As the former CSG Voting Member to the CCWG Auction Proceeds, I plan to
forward this information to CSG members. My personal comment in advance
of CSG input would be to note that any new procedural review mechanism
adopted by the Board should be "lightweight" and fast. Further, it
probably should not be available to challenge the specific amount of any
grant, but only for the purpose of a procedural review of a denial of a
grant. Nor would it be advisable for anyone to be able to challenge any
grant made to another party. The Independent panel mechanism should be
sufficient to ensure fairness. (In this regard, it may be advisable to put
the proposed limited procedural review mechanism out for public comment. )
Is the Board comfortable that third parties who have not applied for a
grant (and thus have not entered into the contractual restriction) would
not have grounds to challenge a grant made to someone else by availing
themselves of the existing Accountability Mechanisms? ( I think this may
be the reason that the CCWG settled on recommending a ByLaws amendment.)
As to whether the CCWG should be reconvened for the purpose of designing
this procedural review, I'll seek input from the CSG on that question but
am not expecting any strong opinions there.
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
On Thu, Jul 20, 2023 at 6:24 AM Wendy Profit <wendy.profit at icann.org> wrote:
*Sending on behalf of ICANN Board Chair, Tripti Sinha…*
Dear Former CCWG-AP Members, (in bcc)
In follow up to the update email from Xavier Calvez, I am writing to you as
Chair of the ICANN Board to update you on the Board’s discussions at its
workshop during ICANN77. During this workshop, the ICANN Board discussed
with ICANN org how to best implement Recommendation #7 of the Final Report.
As a reminder, part of Recommendation #7 stated that ICANN’s existing
accountability mechanisms – the Independent Review Process (IRP) or the
Reconsideration Process – could not be used to challenge decisions made by
the Independent Applications Assessment Panel on individual applications
within the Grant Program. To allow this would add unnecessary complexity to
the program. Additionally, the total available funding for the program
could also be depleted by the cost of such challenges. The CCWG-AP (and the
Board as well, as indicated in our June 2022 action on the CCWG-AP’s Final
Report) assumed that the best way to restrict the use of ICANN’s
accountability mechanisms in this way would be to amend the ICANN Bylaws to
create a “carve-out.” This would therefore require a Fundamental Bylaws
Amendment.
After exploring this issue more in-depth, I am happy to share with you that
the Board and ICANN org identified a path that both upholds the CCWG-AP’s
recommendation that individual application decisions should not be
challenged through ICANN’s accountability mechanisms, while also keeping
ICANN’s accountability mechanisms unchanged within the Bylaws. The Board is
planning to take action on this later this month; however, I wanted to
provide you with a preview. The Board will direct ICANN org to use the
contractual terms and conditions required to apply for the Grant Program to
obtain applicant agreement that they cannot use ICANN’s accountability
mechanisms to challenge any individual decision taken on their application
within the ICANN Grant Program. This remains in line with the CCWG-AP’s
recommendation regarding the accountability mechanisms as well as the
intention to lower complexity and protect the total amount of proceeds
available for applicants.
When the CCWG-AP made Recommendation #7, it also provided guidance that
providing limited opportunity for review of decisions within the Grant
Program might also introduce complexity, and encouraged ICANN to not make
such opportunities available. However, when considering the inability for
applicants to use ICANN’s accountability mechanisms for individual
decisions, the ICANN Board will also ask ICANN org to explore whether there
are appropriate interim opportunities within the evaluation process for
applicants to ask for a limited procedural review. The Board hopes this
will enhance ICANN’s accountability to applicants, while following best
practices within grant making programs.
We are happy to have identified a path forward that preserves the CCWG-AP’s
recommendation and enhances accountability to applicants and the wider
Internet community. The Bylaws are important to us, and we are confident
that we can keep up ICANN’s accountability, as set up, while at the same
time limiting the ability to challenge for individual selection decisions.
The Board is following ICANN org’s implementation closely and looks forward
to seeing this program launch next year. Thank you again for your time and
efforts that went into envisioning this exciting program. The establishment
of the ICANN Grant Program is a testament to your commitment to the work of
the CCWG-AP and is an excellent representation of the multistakeholder
model in action.
Kind Regards,
Tripti Sinha
Chair, ICANN Board of Directors
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