WT A MEETING MINUTES: 06 DECEMBER 2010
SPECIAL CARTAGENA AGENDA
Participants: Evan Leibovitch, Yrjö Länsipuro, Cheryl Langdon-Orr
Apologies: Carlos Aguirre, Peters Omoragbon, Baudouin Schombe, Sivasubramanian Muthusamy
Absent: Sylvia Herlein Leite, Eric Brunner-Williams, Matías Altamira, Daniel Monastersky
Staff: Seth Greene, Heidi Ullrich, Samantha Eisner (Legal)
1. Discussion of Bylaw amendment process and drafting; creation of schedule in collaboration with Legal
Guest: Samantha Eisner of ICANN Legal
Samantha:
- The General Counsel’s office can help in various ways with the drafting of the needed Bylaw amendments.
- One main concern of our office is the internal consistency of the Bylaws.
- The document I’ve distributed shows some proposed Bylaw changes I had drafted earlier in an attempt to satisfy the needs of the ALAC Review WG’s Final Report (see Legal Dept Drafts: ICANN Bylaws (4 Dec 2010; S Eisner). This document can now be shown to the community, etc.
Cheryl: One concern of mine is that, so far, what is missing in our draft revisions is Paragraph 4(g). In the end, we’ll need a cross-reference to it that defines the role of the RALOs as doing policy development (rather than just the ALAC).
Samantha: Okay, we’ll look at that.
Evan: Another concern is that there is an inequality within the Bylaws between the ways in which advice from ACs is dealt with, responded to.
Samantha: This could be remedied via different paths, including the ATRT work or Bylaw amendments. However, it’s important to note that the ALAC Review WG’s Final Report recommends only that policy advice from the ALAC be acknowledged – nothing more. Only the GAC, among the ACs, actually has a consultation mechanism. I myself do not know why the Final Report does not refer to a similar mechanism for the ALAC, but it does not.
Evan: That’s something we would like to make consistent for all the ACs.
Yrjo: By putting into the Bylaws.
Samantha: But the question is: Can we actually facilitate that vie Bylaw changes in response to the Final Report?
Cheryl: The route taken, I expect, would depend on how the Board reacts to the ATRT recommendations.
Evan: I’d say that, in the short term, we do the revisions necessary based on the Final Report. And, in the long term, hopefully these broader issues will get addressed.
Sam: Also, many of the recommendations in the Final Report focus on the need for agreement or understanding between the SOs and ACs. But, ideally, we need those agreements and discussions to actually first exist, before the analogous Bylaw changes are made. That’s the only way the organization – specifically, these agreements -- will function correctly. Bylaw changes can not make such agreements happen.
Evan: Can we discuss the topic of non-voting liaisons between ACs themselves. I’d like to see that addressed in the Bylaws. I’m suggesting this be a modification to paragraph f.
Cheryl: I am looking at, under Recommendation 13, task number 13.3, which says, "Processes between SOs, ACs and the Board need to be developed/strengthened to provide feedback on how ALAC advice has been considered and used within their processes." What Bylaw changes are we going to make to incorporate this?
Samantha: Yes, I understand the need for that and agree. The issue, however, is timing. The goal is to incorporate this into ICANN’s policy development process in a way that the change will be welcomed by the various constituents and actually followed. To do so, some work needs to be done building these agreements with the SOs, etc., before the Bylaw changes are made. And I don’t believe that work has been done yet.
Yrjo: Regarding the WT A report to be given during the ALAC and Regional Leadership Wrap-Up session here in Cartagena, I would like to use the suggested Bylaw changes in Comments a and b found on the WT’s Confluence page (see WT A Drafts: ICANN ByLaw Changes). Comments c and d I’ll mention just really as placeholders. Now, granted, the WT’s competency is not drafting Bylaw amendments; that’s Legal’s role. But these are our recommended changes.
- Note: Below are the four lettered comments to which Yrjo is referring:
a. The ALAC is the primary organizational home within ICANN for individual Internet users, whose views and concerns it captures, aggregates and articulates in order to offer a representative input into ICANN’s processes.
b. The ALAC shall provide ICANN with advice on policy and input into planning and operations from the individual users’ point of view. It plays an important role in ICANN’s present and future accountability mechanisms and functions as a two-way channel for ICANN’s outreach to the individual user community.
c. On issues that clearly affect individual users or have implications for them, ALAC’s advice shall be sought and considered by relevant SO’s or the Board. The ALAC may also put such issues to the SO’s or Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies.
d. If the ALAC’s advice is not followed in the development of the policy, a response should be sent to the ALAC with an explanation, or an explanation should be provided in the policy document or in the minutes of its discussion.
Samantha: Regarding comment b, I believe it is already handled the Bylaws and in the draft revisions I’ve handed out (see Legal Dept Drafts: ICANN Bylaws (4 Dec 2010; S Eisner). And I would be hesitant to repeat sections already present in the Bylaws. There’s no need to repeat them. Similarly, or the opposite actually, Legal would be hesitant to remove something from the Bylaws that is needed. For example, I saw in an early draft on your Confluence page, though perhaps it’s now back in, that your revised wording removed the phrase in Article XI, 4 (a) “the interests of individual Internet users,” because that defines for us the role of At-Large.
Samantha: My suggestion is that WT A go through the Bylaws as they currently exist and determine which points from the Final Report are already taken care of and which are not. For example, the Final Report’s recommendation that the ALAC be part of ICANN’s accountability mechanism is not in the Bylaws yet.
Cheryl: What WT A has written in our suggested draft Bylaw changes is a preamble actually, needed to inform and rally those within the community who only read preambles.
Samantha: Yes. Perhaps, then, what we need to have in the Bylaws is a nonbinding preamble explaining the goals, etc. of the Bylaws. And then go on to specific (lettered, etc.) sections that actually are the binding parts of the Bylaws. I’ll have to check with others within Legal regarding whether this is actually possible or not. In the meantime, I will review the drafting you’ve done on your Confluence page and start cleaning it up as a possible preamble.
- See WT A’s revised Bylaw text at WT A Drafts: ICANN ByLaw Changes.
>> AI: Samantha Eisner (Legal) to check with others in General Counsel’s office regarding whether or not a nonbinding preamble can be added within the Bylaws.
>> AI: Samantha to use WT A’s revised Bylaw language (on WT A Drafts: ICANN ByLaw Changes) to draft a nonbinding preamble for use within Bylaws.
Cheryl: Can we agree to set with Legal a process and deadlines for WT A’s work, in collaboration with Legal, in finalizing the Bylaw amendments? This meeting is over, but we could do it in the first regular meeting of WT A after Cartagena.
Samantha: I’d be happy to help with that and to meet with this WT as much as it believes would be helpful.
2. Preparation of presentation & slides for Thursday's ALAC & Regional Leadership Wrap-Up Meeting
WT A did not get to this topic in this meeting.
3. Discussion/drafting of comment re ATRT (if this work is still needed)
WT A did not get to this topic in this meeting.
The meeting was adjourned.
