[council] Fwd: [FormerMembersCCWG-AP] ICANN Grant Program session at ICANN78

Thu Nov 2 18:00:13 UTC 2023

Thanks Paul, I continue to share your concerns. I really appreciate Becky’s efforts shortly before the Board meeting to try to address the Council’s concerns, but the Board resolution, as passed, does not really do so.  Although Becky’s email regarding the intent to make a Bylaws amendment, which reflects the reference in the recitals clause, gives some comfort the resolution itself reflects only the Board’s determination that such an amendment is not necessary:

Resolved (2023.10.26.11), the ICANN Board revisits its 12 June 2022 decision on Recommendation 7 of the Cross-Community Working Group on New gTLD Auction Proceeds (CCWG-AP) and issues the Revised Scorecard - CCWG on Auction Proceeds Final Report Recommendations – Board Action ("Revised Scorecard")<https://www.icann.org/en/system/files/files/revised-scorecard-ccwg-auction-proceeds-final-recs-board-action-26oct23-en.pdf>, removing the requirement and dependency that a Fundamental Bylaws Amendment is required prior to the launch of the ICANN Grant Cycle. The Board's action on all other Recommendations within the CCWG-AP's Final Report remains in place.

And from the Scorecard itself:
UPDATE October 2023: The Board acknowledges the balance that the CCWG-AP was attempting to develop between remaining accountable to applicants while also remaining accountable to the goal of preserving auction funds for grants, as opposed to depleting funds through defense against application-related uses of the ICANN’s accountability mechanisms. At the same time, the Board recognizes that ICANN’s Fundamental Bylaws on accountability do not need to be amended at this time in order to implement the CCWG-AP’s recommendation barring applicants from use of accountability mechanisms for decisions on individual applications. Prior to any modification of ICANN’s Bylaws, the Board directs that it is more appropriate for ICANN org to explore the use of contractual terms and conditions to implement this recommendation. The Board expects that applicants will be precluded from resort to ICANN’s accountability mechanisms for all individual application decisions taken within the ICANN Grant Program, whether those decisions are a result of the substantive Independent Application Assessment Panel review or due to other application eligibility or admissibility checks implemented within the Program. This is the only means with which to uphold ICANN’s accountability for the preservation of public funds. Throughout the ICANN Grant Program cycles, the Board will pay close attention to the very important balance recommended by the CCWG-AP on preservation of the auction funds for grant making and the impact on ICANN’s accountability mechanisms, all while running a Grant Program in a manner that is accountable to applicants and the broader Internet community. The Board directs ICANN org to review the effectiveness of the limitation of access to ICANN’s accountability mechanisms after the first cycle.

There is no guarantee that the proposed Bylaws amendment in the form being proposed will pass (and I personally have concerns about what is being proposed), and we have a resolution from the Board stating categorically that it does not need to make such an amendment in order to disapply the accountability mechanisms to these decisions.  That is simply not correct.

I would very much prefer that we continue the dialogue with the Board on this, but the time limits for the RfR and IRP are such that we cannot wait on such a dialogue if we wish to challenge this decision.

Susan Payne
Head of Legal Policy
Com Laude
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From: council <council-bounces at gnso.icann.org> On Behalf Of Paul McGrady via council
Sent: Wednesday, November 1, 2023 10:05 PM
To: DiBiase, Gregory <dibiase at amazon.com>; dashcraft at swlaw.com; COUNCIL at GNSO.ICANN.ORG
Subject: Re: [council] Fwd: [FormerMembersCCWG-AP] ICANN Grant Program session at ICANN78

Thanks Greg.

I think whether or not the Board can contract around the protections for community members in the fundamental bylaws is a very important one.  If the Board is going to undo the work of the CCWG-Accountability, there should be more thought given to it. In order to preserve the ability to keep talking with the Board about this, I think it makes sense to file a simple 2-3 page request for reconsideration as well as ask for the CEP (in order to push off the clock on the IRP and to see if we can get through to the Board). I’d be happy to pick up a pen and/or be on a writing team to get drafts to Council if this is the direction we want to go.  It is possible that other groups within ICANN may be having similar discussions, so that is a possibility as well.  Thanks!

Best,
Paul

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> On Behalf Of DiBiase, Gregory via council
Sent: Wednesday, November 1, 2023 4:54 PM
To: dashcraft at swlaw.com<mailto:dashcraft at swlaw.com>; COUNCIL at GNSO.ICANN.ORG<mailto:COUNCIL at GNSO.ICANN.ORG>
Subject: Re: [council] Fwd: [FormerMembersCCWG-AP] ICANN Grant Program session at ICANN78

Hi All,

I am following up on this thread to flag upcoming deadlines for engagement on this issue and to add to Damon’s helpful summary below.

If I am reading the resolutions and rationale<https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-26-10-2023-en> correctly, it appears that the plan is to proceed with the contractual provisions requiring grant applicants to give up their rights to IRPs. While the Board did say they would simultaneously pursue making a fundamental bylaws change, effectuating this change does not appear to be a prerequisite for Staff beginning the grant cycle with the aforementioned contractual provisions re: IRPs. I am not sure this course of action fully addresses all of the questions raised by Councilors at our last meeting (e.g., questions about whether or not the fundamental bylaws can be contracted around).

I’m highlighting this now since there are some upcoming deadlines for engagement (15 days to file a Reconsideration Request, 15 days to begin the Cooperate Engagement Process, 30 days for an IRP unless tolled by the Community Engagement Process).

Is this something that the Council should keep pushing on?  If so, what would that look like?

Thanks,
Greg

From: Ashcraft, Damon <dashcraft at swlaw.com<mailto:dashcraft at swlaw.com>>
Sent: Thursday, October 26, 2023 8:29 AM
To: Mark Datysgeld <mark at governanceprimer.com<mailto:mark at governanceprimer.com>>; DiBiase, Gregory <dibiase at amazon.com<mailto:dibiase at amazon.com>>
Cc: COUNCIL at gnso.icann.org<mailto:COUNCIL at gnso.icann.org>
Subject: RE: [EXTERNAL] [council] Fwd: [FormerMembersCCWG-AP] ICANN Grant Program session at ICANN78

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Mark,

We had discussed in our meeting today whether or not the Board needed to amend a fundamental bylaw to proceed with the grant program.  As of today’s meeting, they apparently had the stance that no so amendment was needed and the concern (from Susan and others) was that ICANN could not get around a fundamental bylaw with a contractual term in a terms and conditions section of a contract.  Greg agreed to raise our concern to the Board. At the Board meeting, the Board announced that while they were still of the opinion that a fundamental bylaw change was not needed, that they would seek on in tandem with implementation of the grant program.  Basically saying we don’t need it but we’ll get it anyway due to community concerns.  Avri expressed concern over this approach but upon a vote, she and the rest of the board voted to move it forward.

I hope that helps.

Damon

J. Damon Ashcraft
office: 602.382.6389 | mobile: 602.510.1640
dashcraft at swlaw.com<mailto:dashcraft at swlaw.com>
Snell & Wilmer
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From: Mark Datysgeld <mark at governanceprimer.com<mailto:mark at governanceprimer.com>>
Sent: Thursday, October 26, 2023 5:10 PM
To: Ashcraft, Damon <dashcraft at swlaw.com<mailto:dashcraft at swlaw.com>>; DiBiase, Gregory <dibiase at amazon.com<mailto:dibiase at amazon.com>>
Cc: COUNCIL at gnso.icann.org<mailto:COUNCIL at gnso.icann.org>
Subject: Re: [council] Fwd: [FormerMembersCCWG-AP] ICANN Grant Program session at ICANN78

[EXTERNAL] mark at governanceprimer.com<mailto:mark at governanceprimer.com>

________________________________

I'm lost in this. If anybody can provide a summary, that would be helpful.
On 26 Oct 2023 16:34, Ashcraft, Damon via council wrote:

Looks like the Board will pursue a fundamental

Bylaws change per Becky in the Board meeting.

Damon

J. Damon Ashcraft

Snell and Wilmer, L.L.P

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On Oct 26, 2023, at 3:14 PM, DiBiase, Gregory via council <council at gnso.icann.org><mailto:council at gnso.icann.org> wrote:

[EXTERNAL] council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org><mailto:council-bounces at gnso.icann.org><mailto:council-bounces at gnso.icann.org>

________________________________

Hi All,

The Board will seek to address concerns raised by the GNSO at the meeting later today.  Stay tuned.

Thanks,

Greg

From: council <council-bounces at gnso.icann.org><mailto:council-bounces at gnso.icann.org> On Behalf Of Anne ICANN via council

Sent: Thursday, October 26, 2023 4:41 AM

To: Terri Agnew via cou. <council at gnso.icann.org><mailto:council at gnso.icann.org>; Paul McGrady <paul at elstermcgrady.com><mailto:paul at elstermcgrady.com>

Subject: [EXTERNAL] [council] Fwd: [FormerMembersCCWG-AP] ICANN Grant Program session at ICANN78

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe.

Dear Council,

We just learned in the ICANN Grant Program presentation taking place now that the Board intends to take action THIS AFTERNOON to modify CCWG Final Recommendation #7 regarding amendment of the ByLaws.  The slide states that this decision will be reviewed after the first grantmaking round to determine whether the alternative proposal is adequate to control the risks that the ByLaws amendment recommended by the CCWG were intended to address.

Anne

Anne Aikman-Scalese

GNSO Councilor

NomCom Non-Voting 2022-2024

anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com><mailto:anneicanngnso at gmail.com><mailto:anneicanngnso at gmail.com>

---------- Forwarded message ---------

From: Anne ICANN <anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com><mailto:anneicanngnso at gmail.com><mailto:anneicanngnso at gmail.com>>

Date: Wed, Oct 25, 2023 at 11:57 PM

Subject: Re: [FormerMembersCCWG-AP] ICANN Grant Program session at ICANN78

To: Giovanni Seppia <giovanni.seppia at icann.org<mailto:giovanni.seppia at icann.org><mailto:giovanni.seppia at icann.org><mailto:giovanni.seppia at icann.org>>

Cc: FormerMembersCCWG-AP at icann.org<mailto:FormerMembersCCWG-AP at icann.org><mailto:FormerMembersCCWG-AP at icann.org><mailto:FormerMembersCCWG-AP at icann.org> <FormerMembersCCWG-AP at icann.org<mailto:FormerMembersCCWG-AP at icann.org><mailto:FormerMembersCCWG-AP at icann.org><mailto:FormerMembersCCWG-AP at icann.org>>, Xavier Calvez <xavier.calvez at icann.org<mailto:xavier.calvez at icann.org><mailto:xavier.calvez at icann.org><mailto:xavier.calvez at icann.org>>, Terri Agnew via cou. <council at gnso.icann.org<mailto:council at gnso.icann.org><mailto:council at gnso.icann.org><mailto:council at gnso.icann.org>>, Becky Burr <becky.burr at board.icann.org<mailto:becky.burr at board.icann.org><mailto:becky.burr at board.icann.org><mailto:becky.burr at board.icann.org>>

Thank you Giovanni.  Please note that GNSO Council is in receipt of a letter from Xavier regarding the issue that has been addressed on this list in relation to the CCWG Final Report Recommendation to the Board to amend the ByLaws to protect grants from being overturned using the Accountability mechanisms.  In this regard, not much discussion has occurred on this list since Erika sent an email stating that the Co-Chairs of the CCWG support the Final Recommendation as previously adopted by the Board to amend the ByLaws.

A status update to this list and to those copied would be appreciated.  The GNSO Council had sent a letter stating that any alternate solution varying the Final Report should have the approval of all CCWG Chartering Organizations.  This is because Chartering Organization approval of CCWG Final Recommendations is a Fundamental Principle of the CCWG Working Group guidelines.   The response to the GNSO Council contained in the most recent letter from Xavier will be under discussion as an agenda item at the next GNSO Council meeting.  (Please note Council members are copied on this email.)

A hybrid solution has been proposed on this list, whereby the first $10M could be granted in a timely manner with a ByLaws amendment process to be followed for the next and subsequent grant application rounds.  We look forward to hearing from ICANN in relation to this alternative proposal from some of the former members of the CCWG.  (Raising this suggestion on the list should not in any way be interpreted as agreement by the GNSO Council to that proposal.)

Thank you,

Anne

Former CSG Voting Delegate to the CCWG Auction Proceeds

Anne Aikman-Scalese

GNSO Councilor

NomCom Non-Voting 2022-2024

anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com><mailto:anneicanngnso at gmail.com><mailto:anneicanngnso at gmail.com>

On Wed, Oct 25, 2023 at 3:09 AM Giovanni Seppia <giovanni.seppia at icann.org<mailto:giovanni.seppia at icann.org><mailto:giovanni.seppia at icann.org><mailto:giovanni.seppia at icann.org>> wrote:

Dear former members of the CCWG-AP,

I would like to inform you that a Grant Program update session<https://icann78.sched.com/event/1T4Ig/icann-grant-program><https://icann78.sched.com/event/1T4Ig/icann-grant-program> is scheduled for tomorrow, 26 Oct at 13:15 local time in Hamburg (11:15 UTC), at ICANN78.

We will provide updates on the status of the program as we progress on the implementation design.

Kind regards,

Giovanni

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--
Mark W. Datysgeld [markwd.website<https://markwd.website/>]
Director at Governance Primer [governanceprimer.com<https://governanceprimer.com/>]
ICANN GNSO Councilor
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