Draft Agenda

1. Welcome, Roll Call, SoI 
2. Debriefing feedback received
3. Next steps and technical assistance
4. Empowered SO/AC model
5. Concluding remarks

Transcript

• Transcript CCWG ACCT Working Session 2 - Buenos Aires - 24 June.doc
• Transcript CCWG ACCT Working Session 2 - Buenos Aires - 24 June.pdf

Recordings

The Adobe Connect recording is available here:  https://icann.adobeconnect.com/p2qli5yo09s/

The audio recording is available here:  http://audio.icann.org/meetings/buenosaires2015/ccwg-accountability-24jun15-en.mp3

Documents presented

Empowered SO AC PP 24 June 2015.pdf

Notes

Comments from CCWG members and participants about the new model  and generally about the public comment and reactions to the CCWG work.

Now we are on agenda point 2, debriefing and feedback received.  Share concerns and suggestion from your respective communities on all aspects of our proposal.

The success or failure on our shoulders.  Depends on our approach.  In addition to public comments, we have also received input from distinguished comments from Sec. Strickling, CEO Fadi Chehade, and others. We should review Sec. Strickling's comments carefully.

As we proceed to we seek perfection we must also look for some areas of compromise.  So take the immediate and urgent issues as a minimum set lf requirements for public comment 2. We can still move issues to WS2.

Board liaison: The board had sent a lot of questions, perhaps we could have engaged more, but concerned we might have been seen as trying to overly direct the conversation.

During the meeting on Friday people were given time to present models. Thinking about how groups resolve disagreements.  On one end of the spectrum there are contractual arrangements, not relying on trust, but on legal intervention.  On the other end of the spectrum there is a model of the Quaker meeting, based on purely on trust.  And the voluntary model has driven the development of the Internet.  Free to access, a sharing culture, and learning culture.  And the culture allowed the net to spread. And while overtaken now, this enthusiasts model is still pretty strong.

On Friday we heard models that were legally oriented.  See this model as infiltrating more mistrust.  And suggest that these types of model run counter to some of the original models of the Internet.

Numbers community:  Concerned if the CCWG can deliver and implement the proposal without delaying the overall transition.  Note: the CCWG must be in sync with the ICG process.  Effectiveness is not the only goal, we must also be in time.  A balance of enforceability and the stability of ICANN, And also look again at whether the elements are needed for the transition of IANA

Better if models are tested before.  Strengthen the IRP, strengthen the bylaws, and agree with the concern about timing.  Can some of the work regarding community empowerment be shifted to WS2?

Hybrid model is a concern for the NCSG, particularly with derivative law suits, that our time could be tied up by lawsuits. So more focus on how we would get agreement on budget and strategic plans, to bring the two sides together rather than any recourse to the courts.  Softer enforcement methods for these two issues.

Stakeholders from India.  Relationship between and Board and SO/AC and keep feeling that we are looking at WS2, rather than issues essential to the transition.  CWG is dependent on CCWG mechanisms, and would like to hear those explained.

Comments from the commercial stakeholders groups.  (1) simplification was welcome, but preserve access to enforceability, and anxious to get to the details of that.  (2)  Comments about accessibility and cost of pursuing an IRP.  (3)  acknowledge that RSAC and SSAC may not wish to vote, but wish not to loose their advice to the community group.

How might it effect individual ccTLD managers. Is there a veto mechanisms available for an impacted group.  How could an individual ccTLD manager enforce.  Larry Strickling's advice.  Implementation of the WS1 proposals.  Linkages to the CWG proposal explained.  One comment that all that needs to be enforceable is removal of the Board.

AoC reviews, come confusion between the ongoing nature of the AoC reviews and the shift of those to the bylaws.  Advice to continue the AoC reviews until such time as the transfer to bylaws complete.

RSAC and SSAC.  Both very much committed.  But do not expect to articipate in the voting mechanism.  The attach importance to being an expert group. Don't want to create any fuzziness about their advisory role and new powers. 

SSAC they are advisors nominated by the board.  Interest to them if the future a situation arose where they wanted to engage more directly they could do so

ALAC: Concept of the culture of the Internet resonates.  Something softer. Concern about membership.  And concern about liability.  Question, who has standing.  Possible that the ICANN Board does something dumb, but its likely that such a decision will not be unanimous and that person (persons) have standing to take action against the rest.

The GAC needs more understanding on the proposed mechanisms.  The group has developed questions, and will submit those and comments before the CCWG mtg in Paris.  Main issue is how the GAC can participate, and how public policy issues will be taken into account.

Next Steps and technical assistance for CCWG

A second public comment launch end July.  F2F meeting July 17-18, where we need to discuss and resolve the issues from the pubic comment and meetings here.  Governments and others will submit questions and comments, but we need these a few days early so they can be fairly addressed.

We will design a scorecard of issues raised in the PC; those supported, mostly supported, divergence. Need to discuss these and reach agreement on each.

Bylaws drafting approach.  The timeline for approving bylaws is tight, to mid November.  Some are almost ready, for example of incorporation of AoC into the bylaws.   Need to be clear about the role of CCWG, of ICANN staff, especially in their role assessing of consistency with other bylaws, and the Board has a special roll on bylaws changes.

How to proceed with bylaws drafting, what do you think is required?

CCWG had significant discussion at the beginning of the process to get own legal counsel, why are they not being asked to lead the drafting work.

ICANN legal has the best knowledge of the bylaws.  We have legal advisors who can provide advice on how the drafts meet our requirements, and suggest changes.

ICANN internal support.  Seeking the best, and timely and cost effective solution.  Essential that the CCWG and independent counsel are part of the effort, a role for review and assessment.  Clear guidance about what should be in the bylaws, and also that these are ICANN's bylaws and should be drafted in the consistent way.  And also ask for costs to be considered.  But there is an important roll for the CCWG and independent counsel.

Yes, ICANN bylaws, but we as the ICANN community should be drafting. Agreement, the CCWG is developing the plan, knows what its intentions are should be drafting.  But ICANN legal should be in there supporting with the legal counsel.  But the pen in the hand of the CCWG.

The drafting already done by the CCWG followed much of the language of the AoC and exciting bylaws.  The work already done might need a little more work, but after some relatively easy work might be ready to pass over to ICANN legal. 

Suspect it will be a collaboration.  Optics suggest it should be in the community's hand's first.

Independent counsel do not act for ICANN and there are liability issues that ICANN legal must sign off on this.  The board must vote on resolutions and do so based on it's own legal advice.

Two sets of legal advisors use wisely.  CCWG should be giving advice. Most cost efficient would be ICANN legal drafting and external counsel reviewing.  Think of ICANN legal as working for CCWG.

Legal process must be embedded in the multistakeholder discussion.

Note that ICANN also has bylaws changes from CWG.  There isn't much time, so important that we are lock-step to Dublin.

Empowered SO/AC model.

First introduced during the working session last Friday (June 19).  We were reviewing our requirements, and had a table presenting the pros and cons of our models.  Tried not to use the word enforceability, and also considered implementation time.  Need to evaluate the pros and cons, and then a full legal test.  This is a baby step towards consensus.

Slides introduced.

Time is important.  Want to retain trust.  Don't want to make changes to operating principles.  Concern for the members model.  And flexibility for the future, the ability to bring in new groups.

Don't want to change legal nature.  Want to exercise the community powers. Leave status quo as it, but could "switch-on" the authority to exercise

certain powers.  Both the member model and designator model could be the basis.

Are we jeopardizing the CWG dependencies, need discuss the conditionality issues.

What do SO/AC need to do - nothing at the moment.  Can formalize relationship later.

ICANN needs to make sure the authority is granted in the bylaws. Might nerd indemnification for SO/AC.   WS1 and WS2 tasks still need to be implemented.  Needs to be considered in context of stress tests and impact assessment.

Now talking about mechanisms. The difference between this as a designator mechanism and a member mechanism.  Only the budget and strategic/Ops will

not be legally enforceable.  Can't imagine the board doing nothing. Might be more complex than we need, only need the ability to remove the Board to be legally enforceable.

Designators and members have differences in powers relating to the budget/strategic and operational plans - members also have statutory rights.  For example being able to dissolve the corporation.  This is not acceptable.

The proposed substantial reform of the IRP must be effective, and must have legal certainly in this.  Do the models have enforceability for the breach of the mechanisms, for examples failing to appoint an IRP panel. Is there a remedy?

Changing the bylaws is enough.  Don't feel that 15 boards members will all act so badly.  Support the new proposal, but feel we can go further.

We are trying to honor those who wanted the trust based model. Idea that if the board/community relationship turned sour then the powers could be turned on.

Heard loud and clear about concerns about litigation.  No one wants a model that leaves ICANN constantly in court.  We can seek resolution through the IRP.  In the general and normal case, if the community wished to rely on the IRP mechanism, that is a viable approach.

If there is a problem with the Board and community we need escalation.

Need a table that compares the new model with the old.  We are passing on the hard issues, and think we have had good success with the proposal.

There is an obligation on us to support the CWG. And a lot of work in a short space of time to take these consensus issues and build on them.

Be realistic about the practical level of empowerment.  That in the other be s the trust models works.  Perhaps look at what works right in other parts of the community. And consider if we need a numerical method of delivering those powers, if voting is the right answer? Any instability in ICANN effects the numbers community.

GAC and consideration of the role of governments in this new model.  (1) would the empowered SO/AC model require legal personhood? And if some are

members and some are not, would this create an imbalance between them. (2)if a SO/AC decides to join at a later stage who decides if they can join or not. 

Firmly supporting the bottom up process. And the CCWG process.

Risk of capture.  There is no decision in those core fiduciary areas that cannot be stopped by the community.  And if the community does not like what the board has done it can remove one or all directors.  Need to ensure the corresponding responsibilities of accountability are transferred as the powers are.

This is issue of community accountability raised my a number of commenters.  Needs to be resolved.

Is there any requirement before a SO/AC can spring? IRP as a requirement, would we have a way of keeping members out of courts on their issues.

Proposed as a low risk model, what was involved in that assessment?  And need to consider re-writing the bylaws as a member organization.

The ability to go to the IRP is one of the first protections.

Which of these models if any provide a remedy to breaches in the bylaws other than those noted in WP1. Would the empowered model protect from

cases such as ICANN failing to implement an IPR. Need to work on that.

We are here because ICANN accountability considered lacking. And here to find solutions.   The community needs to be empowered to do that.   And the model does seem to combined good aspects to do that.  So lets review the models to date.

This will make Directors more cautious in what they say and do. This desire to introduce community powers assumes the community is in agreement with them, it is note. It seems to take ICANN towards being the next UN general assembly. 

Red herring to talk about trust and accountability.  Accountability is the ability to hold to account.  Trying to say that we don't want to use the term enforceability, and certainly not go to courts.  Also need to remember how difficult it is within ICANN to gain consensus.  It would need to be serious enough to bring about community consensus. And we have work to do making the community more accountable.

On the one had people say it will never happen so OK to have the power. On the other, never happen so don't need the power.  Leaning towards those who say the budget and strategic plan not the same weight. Need to examine the statuary rights and what those are.

Unintended consequences of the budget proposal where members of the community vote against each other, or for their pet issues.  Budget paralysis would also threaten the ability to fund the IANA function, which should be enshrined in the bylaws.

Empowered designator.  7 directors, if we do not trust 1 to take action then introducible.  Then have a contract to require them to take action.

At the end is Congress.  Everything has to pass a political context. Would a government or the GAC have the ability to become a member?  Senators will ask do the governments have more power than they do today.  Yes. Will they have more power relative to others, more power.  Isn't one the key conditions of NTIA that govt should not replace us?  Be careful.

There are many questions to think through.  What is necessary to transition ICANN from one govt to all stakeholders.  Don't upset the consensus balance that has worked for years.  If the balance changes our model, then we are in trouble.

Must not be under control of one or more govt.  A proposal, find consensus, make simple to explain to Congress, but no extra criteria than those laid out when we started. Stick to our requirements. 

Support for the empowered SO/AC model.  It's truly bottom-up. It gives us choices. 

Generally in favor.  Needs study and development.  Budget, the power to veto the budget, a super majority.  Solvable problem.

NTIA ending a contract with ICANN and that is a legally enforceable contract.  Can say that today that the SO/AC have different types of power.  The SO/AC will have the same powers as today.  It gives the community more power across the board, not more power to any single group.

Be clear, I was presenting the risk, not the answer.  The contract with the IANA is not about accountability. There are real political risks.

Fear of lawsuits and of statutory rights, and the CCWG needs to lookout for this.  Ensure that no group can short-circuit and move to enforcement mode without having a proper consultation in the community.

And commitment to watch the watchers.  The two camps, of those who enforcement powers and those who want trust model, but head little willingness to compromise.  And we do not wish to leave anyone behind. Which suggests a hybrid model is attractive.  Starting from trust.  But the question is when to we move from the trust based model, and when do we move.  And some movement on some the need for some powers, so long as other powers in place.

How do we connect the two worlds.  A threshold to switch from one level to the next, perhaps within the community.  Take the best from all worlds to move forward.  And think more about where the power is.  And develop a rationale as to why we put the votes in the proposal.  Need to see if statutory powers can be waived.  Putting the IANA budget in the bylaws,

and we have a weakness of the designator model perhaps removed.  Very helpful proposal for tomorrow's discussion at the next working session.

END

Chat transcript

  Kimberly Carlson: (6/24/2015 12:58) Hello, my name is Kim Carlson and I will be monitoring this chat room. In this role, I am the voice for the remote participants, ensuring that they are heard equally with those who are “in-room” participants. When submitting a question that you want me to read out loud on the mic, please provide your name and affiliation if you have one, start your sentence with <QUESTION> and end it with <QUESTION>. When submitting a comment that you want me to read out loud of the mic, once again provide your name and affiliation if you have one then start your sentence with a <COMMENT> and end it with <COMMENT>.  Text outside these quotes will be considered as part of “chat” and will not be read out loud on the mic.

  Kimberly Carlson: (13:21) All chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards

  Jordan Carter (.nz, ccTLD member): (13:35) Hello all - sorry to be stuck in ccNSO until half an hour from now

  Bruce Tonkin: (13:45) Hello All - I am glad to be in the same room as the CCWG again - as opposed to being on the phone.

  Chris Disspain: (13:46) Bruce...we can feel your presence

  Toronto Canada Remote Hub: (13:53) @kimberly - who is speaking?

  Samantha Eisner: (13:54) George Sadowsky

  Farzaneh Badii: (13:54) Geord Sadowsky

  Toronto Canada Remote Hub: (13:54) thank you

  rudi daniel: (13:54) Rudi Daniel here..is that a icann board member speaking?

  rudi daniel: (13:55) George!!

  Edward Morris: (13:55) Thank you Matieu

  Jordan Carter (.nz, ccTLD member): (13:55) Thanks Mathieu

  Chris Disspain: (13:57) Mathieu...90 minutes...I thought we'd extended it

  Keith Drazek (ICG Liaison): (13:58) The CCWG is currently working towards the timeline outlined on Monday by Fadi....approval in October in Dublin.

  Mathieu Weill, ccNSO, co-chair: (13:58) You'lll see, many have conflicts. So we'll have to cut short the formal meeting and the rest will be a "workshop"

  Chris Disspain: (13:59) ah

  Chris Disspain: (13:59) understood

  Jimm Phillips: (13:59) Who is speaking now?

  Thomas Rickert: (13:59) As León said, we will have an informal meeting with Xplain after 17.00

  Mathieu Weill, ccNSO, co-chair: (13:59) Athina is speaking (statement of ASO)

  Chris Disspain: (13:59) got it...

  Jordan Carter (.nz, ccTLD member): (13:59) YOu can tell who is speaking by looking at the list of speakers on the right, if you are in the Adobe room

  Keith Drazek (ICG Liaison): (13:59) The CCWG is focused only on Work Stream 1, that which is required prior to transition. Everything else will be deferred to Work Stream 2.

  Chris Disspain: (14:02) who just spoke before Robin?

  Brenda Brewer: (14:02) Cheryl Miller

  Bruce Tonkin: (14:02) @Keith - I assume by the separation of Work Stream 1 and Work stream 2 - that only Work Stream 1 is directly tied into the IANA transition process.   ie Workstream 2 will continue after submission of thew Workstream 1 proposal to NTIA.

  Chris Disspain: (14:03) thanks Brenda

  Bruce Tonkin: (14:03) It would probably be helpful to have a timeline at some point for Work stream 2 as well.   ie I suspect taht many of the voluntters in this process will be somewhat burnt out just to get work steeam 1 done - and may not want to keeping working at the same intensity for another year.   That means that some of the workstream 2 stuff will need to be prioritised as well.

  Peter Knight: (14:04) Could this be arbitration, assuming the parties can reach an "out-of-court" agreement?

  Peter Knight: (14:06) I'm no lawyer, but I understand that there are professional arbitrators available for solving conlicts . Perhaps more like marriage counselors in thsis case .

  SivasubramanianM: (14:08) look forward to reading the interrupt portion of George Sadowsky's intervention

  Peter Knight: (14:09) Clarification: I was referring to the derivative law suits. Of course if these are initiated only with objective of using deep pockets to delay actions they reject, this wouldn't work.

  Toronto Canada Remote Hub: (14:10) It unforunate that George S. was not allowed to continue his comments, but I do appreciates the chairs position to stick with his/her agenda

  Leon Sanchez (Co-chair ALAC): (14:10) George will be given the chance to continue his feedback when we come to agenda item 4

  JP: (14:12) why is the transcript not working for this meeting?

  Roelof Meijer (SIDN, ccNSO): (14:12) @Mathieu: can you explain the difference between a working session and a work shop? So that I know what I will be missing

  Mathieu Weill, ccNSO, co-chair: (14:13) @Roelof : there will be sort of a brainstorming effort in the workshop to flesh out the empowered SO/AC approach, facilitated by Xplane

  Jonathan Zuck (IPC): (14:13) good point Avri

  Roelof Meijer (SIDN, ccNSO): (14:14) @Mathieu: I take it that the results of the workshop will be input for the working session 3 tomorrow

  Steve DelBianco [GNSO - CSG]: (14:14) Great point, Avri.  A couple of AoC reviews will be in-process at the expected time of  byaws changes in early 2016.  One idea is to avoid sunsetting the AoC until acompletion of any  in-progress AoC reviews

  Jordan Carter (.nz, ccTLD member): (14:16) There isn't a culture war invovled here from my point of view. Just want to put that on the record.

  Mathieu Weill, ccNSO, co-chair: (14:17) @Roelof : yes Roelof, they would not have the status of a 1st reading ;-)

  Jordan Carter (.nz, ccTLD member): (14:17) I've been a supporter of the open, MS model since i started in this arena - reject the slur that supporting legal enforceability means that I don't support the Internet way.

  Keith Drazek (ICG Liaison): (14:19) +1 Jordan

  Jordan Carter (.nz, ccTLD member): (14:22) after all, the entire ICANN project has been built on an enforceable legal foundation: the contract for NTIA.. Surely those who wish to see a desertion of such a fundamentally successful model are those with the burden of proof

  Jordan Carter (.nz, ccTLD member): (14:23) (the legal enforceability bit - not questioning the transition.)

  James Gannon: (14:24) +1 Jordan

  Keith Drazek (ICG Liaison): (14:26) I believe the CCWG should take the lead in drafting the proposed by-laws changes, with the support of its expert/independent legal counsel, and in coordination with ICANN legal.

  James Gannon: (14:27) Can staff not take down hands in the adobe please

  Malcolm Hutty: (14:28) Very well said Keith.

  Malcolm Hutty: (14:28) I would encourage you to take the mic to say exactly that

  Milton: (14:28) Agree with Keith. This group should be in charge of the drafting process. ICANN legal is there for advice

  JP: (14:28) +1

  Jordan Carter (.nz, ccTLD member): (14:29) We iwll be in charge of the drafting process, won't we?

  JP: (14:29) +1 on idea of independent review of each draft

  Arun Sukumar: (14:29) imperfect as the legal counsel may be, it has to be a ccwg-driven process. ICANN staff should have little or no say in it

  Phil Buckingham: (14:29) I also agree with Keith.

  Jordan Carter (.nz, ccTLD member): (14:29) So we specify, ICANN drafts, We check with legal counsel, we consider their advice, ICANN revise, we check, done?.

  David McAuley (RySG): (14:29) It seems morel ikely  to me that our counsel will best capture our CCWG intent (when we reach it) and they should hold the initial pen

  Malcolm Hutty: (14:30) @Jordan, if ICANN legal hold the pen, I think at the very least it will lead to a perception that we were not in charge of the drafting process

  Matthew Shears: (14:30) + 1 David

  Jordan Carter (.nz, ccTLD member): (14:30) That's valid - this meeting makes the call, I'd say

  Jordan Carter (.nz, ccTLD member): (14:31) There are good arguments to get the process right and I trust us and our advisors to getit right, whoever does the first drafts

  Seun Ojedeji: (14:34) For the Numbers proposal it was RIR staff that draft the SLA but they brought it back to the community for comments. So i don't see any problem with ICANN legal doing this so long as there are principles they are drafting on and their outcome will still be reviewed by CCWG

  Avri Doria (atrt): (14:34) My hand is raised for Bruce whose laptop is out of power.

  Mathieu Weill, ccNSO, co-chair: (14:34) Queue was closed but...

  Alan Greenberg: (14:35) given that we have legal counsel that will wave large red flags if something is proposed that differes from what we are intending. Why do we have to maximize legal fees?

  Keith Drazek (ICG Liaison): (14:38) No one is saying ICANN's legal department can't have input or perform its role on behalf of the Board. There will need to be collaboration.

  Jordan Carter (.nz, ccTLD member): (14:39) I have no desire to be drafting bylaws, thanks Kavouss :-) I would ratehr people with legal training did that, and got a layperson's eye afterwards

  Matthew Shears: (14:39) we should be able to work this out in the CCWG leveaging the skills of the members, ICANN legal and outside counsel

  James Gannon: (14:39) Not at all ICANN legal are key to the process as Chris said they will need to advise the board on their resolutions. But its imperative that we are holding the pen.

  Jordan Carter (.nz, ccTLD member): (14:39) Chris - didn't understand your point - these are draft bylaws for consulting the community on. Then the Board will need to be advised before it decides to move them forward to implementation. Has anyone queried that?

  Greg Shatan: (14:40) We won't be done until both ICANN legal and the CCWG (upon advice of counsel) are satisfied.  I don't believe we will have any shrinking violets in the process.

  Seun Ojedeji: (14:40) Exactly!

  Jean-Jacques Subrenat: (14:40) @Bruce +1: "giving instructions to legal", rather than "holding the pen".

  Keith Drazek (ICG Liaison): (14:40) Would the ICANN legal team do all the drafting themselves, or would they rely on Jones Day or other outside counsel?

  Jordan Carter (.nz, ccTLD member): (14:40) Personally: if this was a 1000 page contract, I would be militantly in favour of our group's lawyers writing it

  Arun Sukumar: (14:40) The ICANN lawyers can certainly advise the board, but I'm not clear what that has to do with signing off on them. S

  Jordan Carter (.nz, ccTLD member): (14:40) but it's the ICANN bylaws

  Jordan Carter (.nz, ccTLD member): (14:41) it isn't a very complex document

  Malcolm Hutty: (14:41) I understand Chris' point. He thinks that ICANN legal can prevent "unworkable" proposals being tabled in our final report.

  Greg Shatan: (14:41) I expect that drafts will be exchanged and commented on between the firms.  Everyone will get their turn and we will not be done until both "sides" are satisified.

  Jordan Carter (.nz, ccTLD member): (14:41) there isn't any chance there will be "hidden hooks" added that we, or counsel, won't notice.

  Jordan Carter (.nz, ccTLD member): (14:41) Malcolm: I don't think he was getting at that, but we can't both be right :)

  Malcolm Hutty: (14:42) We have consistently faced ICANN legal defending the doctrine of Board supremacy in the face of proposals to the contrary. Do we really want to spend the next period arguing with them as to whether we are even allowed to propose what we wish

  Milton: (14:42) Becky left the room

  Milton: (14:43) Well, said, Malcolm

  Samantha Eisner: (14:44) Malcolm, I don't believe that's an accurate portrayal of my participation in this process

  Robin Gross [GNSO - NCSG]: (14:44) If I gave anyone the impression that NCSG does not support these powers, let me apologize.  We absolutely unequivicably support these community powers.  Sorry for only pointing out concerns and not also the support.  My mistake.

  Malcolm Hutty: (14:45) @Samantha, I mean no disrespect, and you have a duty to discharge, but there was a long thread of argument (in which I was not a participant) that led to independent counsel being hired

  Seun Ojedeji: (14:45) Malcom - "We remove enforcability from our list"  well said.

  Seun Ojedeji: (14:46) Can we have the scroll of the slides?

  Samantha Eisner: (14:47) Understood Malcolm, and I did not take it that way.  ICANN has been supportive of the CCWG's wish to have independent counsel as a test to the information and inputs we've provided into the process.

  wolfgang: (14:47) @Malcom: The philosophy of Joe is water under the bridge. We have 2015 and times have changed.

  Leon Sanchez (Co-chair ALAC): (14:50) Thanks for clarifying @Robin!

  Mathieu Weill, ccNSO, co-chair: (14:54) FYI we are setting up the timer

  Athina Fragkouli (ASO): (14:55) Roelof's point makes sense to me

  Jordan Carter (.nz, ccTLD member): (14:56) The counterpoint to Roelof's suggestio is that by ensuring powers are enforceable, you'll never need to worry about people behaving badly because theyknow the consequences are clear and real

  Matthew Shears: (14:56) + 1 Jordan

  Keith Drazek (ICG Liaison): (14:56) Exactly Jordan.

  Jonathan Zuck (IPC) 2: (14:57) Of course that scenario happens all the time, leads to people getting help, etc. That said, I agree it would be bad after so the board would have the incentive not to let it ge3t there.

  Izumi Okutani (ASO): (14:57) Indeed Roelof, I think it is worth distinguishing the legal enforceability and enforcerability within the ICANN, given ther are other legally enforceable powers except budget/operational/strategic plans

  Leon Sanchez (Co-chair ALAC): (14:57) Exactly. As I said, having the powers enabled is like walking with a big stick in your hand. Nobody will want to mess with you because they know you carry a big stick and will use it if necessary

  Jordan Carter (.nz, ccTLD member): (14:57) I recall in the .UK comment among others, the suggestion that "pre use" conciliation and discussion obligations should be created

  Seun Ojedeji: (14:58) @Jordan i don't agree that enforcability would stop mis-behavior otherwise the prisons will not be so full in some countries ;-)

  Jordan Carter (.nz, ccTLD member): (14:58) I don't think there is a counterfactual, Seun - no libertarian paradises to compare to, are there? Don't most hold the rule of law to be a plus?

  Jordan Carter (.nz, ccTLD member): (14:59) and of course I was exaggerating in saying "never"

  Izumi Okutani (ASO): (14:59) It may be worth asking the question whether the  fact that there is legal enforceability on overthrow of the Board would give sufficient movitation for the Board to listen to community input.

  Jordan Carter (.nz, ccTLD member): (15:01) maybe worth asking. Worth thinking about scenarios there - e.g. when you test it out, does it leave you thinking the Board could make teh consequences of that seem so damaging that it is never available, even if needed. But that's a sort of scenario tease-out. In our earlier work, we'd opted for a range of powers of vairous sorts so as NOT to have to resort to such a big deal

  Greg Shatan: (15:01) @Alan - what section(s) of the California Code are you referring to.

  Leon Sanchez (Co-chair ALAC): (15:02) @Izumi that cannot be a legal question. It is our hope and expectation it would be a deterent for the Board from going rogue but it  definitely cannot be assured

  Greg Shatan: (15:02) Izumi, are you looking for something with even greater power than being sued for failing to abandon office?

  Seun Ojedeji: (15:03) I think the fact that there would be a process to get an overall community view on an issue, considering that board positon is termed based, it will be un-strategic for board members to refuse such collective view. Especially board members that were elected by the community.

  Malcolm Hutty: (15:05) If the Chair is replying to questions posed in this section, perhaps I could get an answer to my question as to whether these models provide a legal remedy for breaches of bylawys, rather than just the five? community powers created by WP1

  Chris Disspain: (15:05) My hand is raised for Cherine who has raised his hand in the room but is not in chat

  Seun Ojedeji: (15:06) @Jordan thanks for indicating the clause of exageration and that is what i would call this issue of enforability. Even organisations that are members based are wise to avoid such legal path because it will still tell on everyone. 

  Seun Ojedeji: (15:06) enforability= enforcability

  Chris Disspain: (15:08) My had is raised for myself as well

  Alan Greenberg: (15:08) @Greg, one moment will get that.

  Jordan Carter (.nz, ccTLD member): (15:08) member based organisations have rights for their members

  Jordan Carter (.nz, ccTLD member): (15:09) it's just that simple

  Farzaneh Badii: (15:10) Seun just a couple of sentences above you said that enforceable laws are not deterrents thats why we have full prisons. then here you think community review process can actually act as a deterrent ?

  mike: (15:10) So,  the "empowered" model sounds more like an implimentation (towards membershio) approach, than a different model?

  Alan Greenberg: (15:10) @Greg:  California Corporations Code for a Public Benefit Corporation.                    6610.  (a) Any corporation may elect voluntarily to wind up and dissolve (1) by approval of a majority of all members (Section 5033) or ... (other mechanisms)                  From http://www.leginfo.ca.gov/cgi-bin/displaycode?section=corp&group=06001-07000&file=6610-6618.

  Jordan Carter (.nz, ccTLD member): (15:11) that helps those of us who work for them be held to account

  Keith Drazek (ICG Liaison): (15:11) •      The Empowered SO/AC model reinforces the foundation of our existing community structure, and would only become relevant if/when all other accountability mechanisms are exhausted. It would change nothing about the day-to-day operations of ICANN or the existing community structures and processes.

  James Gannon: (15:12) I like the idea of having an NCSG bunker, can we have a tank aswell?

  Keith Drazek (ICG Liaison): (15:13) Alan's argument that a single SO or AC could unilaterally dissolve ICANN is impossible under this proposal. If one "member" SO or AC attempted that, any other SO or AC could activate their membership rights and block it. Voila. Problem solved.

  Alan Greenberg: (15:13) @Keith, I now strongly support the empowered SO/AC model.  But not with Membership.

  Alan Greenberg: (15:13) @Keith, I do not beleive there is a waiting period. What is done is done.

  Seun Ojedeji: (15:14) @Farzaneh i "never" said community process would act as deterrant,  i said the converged view from the community would definately persuade the board to act in their interest. There are known situations where simple protest from community members of a town made the leaders change their approach and respond to their need. There was no legal enforcability in that.

  Jordan Carter (.nz, ccTLD member): (15:14) Seun, you just said no then yes in different words :(

  Malcolm Hutty: (15:14) @Alan, that link you sent says that the corporation with no members may be dissolved by the Board. If dissolution is your concern, perhaps this should make you want members

  Samantha Eisner: (15:14) @Keith, I understand your point, but doesn't that underpin that the springing mechanism could trigger other areas of instability if there are places that members could spring to thwart actions of other members?

  Jordan Carter (.nz, ccTLD member): (15:15) Sam: that's a very important thing we need to iron out, and is one of the examples that we don't know the answer to.

  Jordan Carter (.nz, ccTLD member): (15:16) +1000 to Fiona. We need to work on an array of 'soft' accountability improvemetns. The question is whether we have time to do that while building a durable solution structurally speaking

  Milton: (15:16) Fiona, because ICANN has not real authority over the numbers community it is understandable that you think we don't need more accountability and enforcement. But names is a lot different

  Seun Ojedeji: (15:16) @Jordan perhaps you care to clarify your point

  FIONA ASONGA (ASO): (15:19) Milton, we do need more accountability and enforcement but it has to be realistic and practical. I don't think realistic and practical is about using the judicial system

  SivasubramanianM: (15:19) my hand gets dropped repeatedly as my phone goes into power saver mode

  SivasubramanianM: (15:19) please take it as raised

  Seun Ojedeji: (15:19) @SM you may remove it from power saver mode

  Becky Burr: (15:20) Julia - we agree on equal power level playing field concern and running that to ground is an important next stepl  on the issue of new SO/ACs, thatwould be dealt with at the time of creation.  All SOs and ACs are provided for in the bylaws, and the admission of new SOs and ACs will  provide for the necessary authority, adjust voting threshholds, etc.

  SivasubramanianM: (15:20) thanks Seun. I have asked the moderator to take it as raised

  Jordan Carter (.nz, ccTLD member): (15:21) The logic that this Board member is expressing is a logic that would mean no membership organisation had a functional board. It is wrong, and has no basis in law.

  Sabine Meyer (GAC - Germany): (15:21) just to clarify, Becky: what is meant by "new" SO/ACs?

  Jordan Carter (.nz, ccTLD member): (15:22) What is *vital* though is that the mode of expressing these powers in the rules, and the understanding driving these, respect and acknolwedge that the Board will remain the Board, with the responsibilities it has broadened a bit.

  Keith Drazek (ICG Liaison): (15:23) The existing community groups have accountability mechanisms built in to their processes and exsitence. It's bottom-up consensus accountability. Empowering the community structures does not take away from that accountability.

  Becky Burr: (15:23) for example, if ICANN decided to recognize a new "Consumer Protection Advisory Council" then it would need to be provided for in the bylaws, just like the SSAC and RSAC

  Seun Ojedeji: (15:24) Honestly i thought we would be getting more details about this "Empowered SO/AC model" today and i hope the CCWG would be sensitive on the need to maximise their time by looking at the high-level points of a proposal and deciding whether is something to further develop in details or not. I think there is high level of this current proposal now and its enough to provide some guidiance on how promising it is

  Sabine Meyer (GAC - Germany): (15:24) cool, got it. thank you Becky for clearing that up.

  Jordan Carter (.nz, ccTLD member): (15:24) Seun, who did you expect to write more detail during an ICANN meeting? :)

  Jordan Carter (.nz, ccTLD member): (15:25) I think if we had tried to create further subgroup meetings, our heads would have been torn off..

  Jordan Carter (.nz, ccTLD member): (15:25) i'm amazed we have anything to see at all, and really thanks to Becky for leading that on top of everything else that has been done

  Seun Ojedeji: (15:25) Well who made the proposal? maybe there should be some requirement on the level of details that should be provided before a proposal is pushed to the floor

  Jordan Carter (.nz, ccTLD member): (15:25) the proposal emerged at the meeting on Friday

  Becky Burr: (15:26) Seun, I think there are various levels of awareness and understanding in the group

  James Gannon: (15:26) +1 Jordan the work tht has been done on this in the middle of an intensive has been exceptional, thanks are definitnly due to Becky

  Jordan Carter (.nz, ccTLD member): (15:27) I think we should be realistic about the fact we are, many of us, at an ICANN meeting. High on caffeine, lacking sleep, stimulated by hundreds of people around us, doing our day to day work at the event as well as on this material.

  Jordan Carter (.nz, ccTLD member): (15:27) maybe we could cut ourselves a bit of a break

  Jordan Carter (.nz, ccTLD member): (15:27) about the availability or otherwise of written material

  Sabine Meyer (GAC - Germany): (15:27) we'll always have Paris, Jordan :D

  Seun Ojedeji: (15:28) @Jordan please note that my comment is not to say Becky has not done a good job. My point is that the next public forum will be in OCT and it would be good to have some clear direction from this current meeting. For the record, i also thank becky and her team for their wor

  Becky Burr: (15:28) Malcolm i can answer that and the answer is yes

  Keith Drazek (ICG Liaison): (15:28) In response to Cherine's earlier statement, I respectfully disagree that transferring some authority from Board to Community would make the SOs and ACs LESS accountable than they are today. Strongly disagree.

  Becky Burr: (15:29) NOT BECKY'S MODEL!!!

  Malcolm Hutty: (15:29) THANK YOU BECKY

  Malcolm Hutty: (15:29) oops caps

  Becky Burr: (15:30) i just thought that was an especially heartfelt thanks

  James Gannon: (15:30) Becky according to Seun you now have a team, moving up in the world =)

  Samantha Eisner: (15:30) @Keith, I heard Cherine's point as requesting that there be accountabiilty for the decisions made through the community enforcement mechanism, and not that it would make the SO/AC less accountable than they are today

  Keith Drazek (ICG Liaison): (15:31) Empowering the SOa and ACs introduces checks and balances, which improves accountability and stability for the organization.

  Matthew Shears: (15:31) sorry Becky!

  Jordan Carter (.nz, ccTLD member): (15:31) Trust and Accountability aren't opposites - you don't need one when te other is lacking. They're part of a healthy organisation.

  rudi daniel: (15:31) very good session but I am losing audio often...what is the URL for the audio recording of this pls

  Jordan Carter (.nz, ccTLD member): (15:32) Rudi: http://buenosaires53.icann.org/en/schedule/wed-ccwg-accountability

  Peter Knight: (15:32) Trust takes a long time to earn, but can be lost very quickly.

  Jordan Carter (.nz, ccTLD member): (15:32) check that page out later

  rudi daniel: (15:33) thx. Jordon

  Jordan Carter (.nz, ccTLD member): (15:33) I'd also observe trust breaks down fastest when people say one thing and do another, not when accountability frameworks are or are not there. We don't rely on "trust" to run our societiies generally, why would we do so for the Internet?

  Jordan Carter (.nz, ccTLD member): (15:33) trust "by itself", I mean. of course. :)

  Becky Burr: (15:35) Back @ Sam re Cherine's comment on accountability of the community - totally legitimate and serious concern to be addresed

  Seun Ojedeji: (15:35) @Jordan perhaps because we built it? ;-)

  Jonathan Zuck (IPC): (15:35) sigh. it will never happen BECAUSE we have the power

  Jordan Carter (.nz, ccTLD member): (15:35) we build all of our society, Seun

  Roelof Meijer (SIDN, ccNSO): (15:36) @Jordan: in the end, it's still trust: trust in our legal system. Ansd that consists of people..

  Jordan Carter (.nz, ccTLD member): (15:36) Roelof: quite

  Jordan Carter (.nz, ccTLD member): (15:36) and in the separation of powers that the institutions of successful societies exercise as part of that

  Alan Greenberg: (15:36) @Becky, re community accountability, Jan Scholte has been saying that forever and we have resolutely ignored it and not done a whit of work in that direction.

  Malcolm Hutty: (15:37) "It'll never be needed" (if we've got it)  isn't the same as "it'll never be needed (if we haven't). Better to have it and not need it than need it and not have it

  James Gannon: (15:37) +1 Malcom

  Becky Burr: (15:37) actually, i don't think we've ignored it and several people, myself included, have said we should take a look at proposals such as the accountability roundtable prposed, i think, by Willie Curry

  David McAuley (RySG): (15:38) @Alan, I think there has been reasonable discussion about mutual accountability roundtable that Willie Currie put on table

  Matthew Shears: (15:38) community oversight over the budget is a key element of WS1 and a dependency vis-a-vis the CWG's work

  SivasubramanianM: (15:38) Icann at present, operates from the California legal environment. This is an environment that makes the Board and Executive excessively cautious about what they say or do.

  SivasubramanianM: (15:39) contd..

  Jordan Carter (.nz, ccTLD member): (15:39) This organisation is much less risk adverse than a treaty organisation would be

  Julia Wolman, GAC Denmark: (15:39) + 1 Matthew

  Keith Drazek (ICG Liaison): (15:39) The CCWG discussed an arrangement to ensure continuing operations while a budget is reconsidered. The budget reconsideration would only be vetoed IF the the Board approved something far beyond or inconsistant  with the budget that came from the community process.

  Seun Ojedeji: (15:39) @Malcolm how about using what we have wrongly.

  Theresa Swinehart: (15:39) Raising my hand for Fadi .

  Malcolm Hutty: (15:40) @Alan, that sounds like progrss, if we're moving from arguing about whether legal recourse is necessary, to whether it is better sought by SOACs or by NomCom

  Milton: (15:40) Fadi makes a good point

  McTim: (15:41) no MM, he doesn't!  they would have less power!

  abibu (.tz): (15:41) a very good point Fadi.

  SivasubramanianM: (15:41) The proposal to enlmpower the Community with legally enforceable powers would make the situation far more complex

  Milton: (15:41) Tell me how, McTim

  McTim: (15:41) They have what is a near veto now

  SivasubramanianM: (15:41) contd

  McTim: (15:41) the current board is unwilling to stand up to GAC stupidity

  Chris Disspain: (15:41) McTim...can I assure you that they have nothing like a veto

  Milton: (15:42) GAC will not give up its special Advice power un the bylaws, but they will add membership powers, at least that is my understanding

  Chris Disspain: (15:42) we are constatly stnding up to GAC

  McTim: (15:42) Sorry, Chris, I disagrfee, see the latest 2 letter fiasco

  Chris Disspain: (15:42) Interesting example...

  Becky Burr: (15:42) nobody supports making change for change's sake

  McTim: (15:42) they get what they want aftere writing a letter, not even reaching consensus advice

  Chris Disspain: (15:42) what makes you think we haven't stood up to them

  Milton: (15:42) I would not say that board is "constantly standin up to GAC" but they do stand up to them some time and they have the authority to do so any time.

  Chris Disspain: (15:42) they bhave not got what tey want

  Malcolm Hutty: (15:42) @NTIA criterion was that this would not be multigovernmentally led, not that they would not get any new power or influence at all

  Roelof Meijer (SIDN, ccNSO): (15:42) @Mathieu: judging from the adobe room (soI could be wrong) I would think you're still in a working session, not a work shop like you described

  Chris Disspain: (15:43) but let's take this out of the chat

  Becky Burr: (15:43) justice delayed is justice denied

  McTim: (15:43) good point Malcolm

  McTim: (15:43) I wish the Board would stand up to them FAR more often than they few times they have

  SivasubramanianM: (15:43) The proposals for an empowered community presupposes that the Community is well balanced within. The ICANN Community is not balanced enough.

  Chris Disspain: (15:43) but let's take this out of the chat'

  SivasubramanianM: (15:43) contd

  SivasubramanianM: (15:45) We can't make changes that would create a situation of a stalemate.

  McTim: (15:45) agreed Siva, the GAc is the only "empowered" SO/AC at the moment, due to bylaws re: GAC

  Pedro Ivo Silva [GAC Brasil]: (15:45) I think the statement that governments would have more power than the other SOs/ACs is not accurate. The CCWG has never worked based on this assumption and I don't see how the models proposed so far suggest that government would have more powers then the other constituencies.

  McTim: (15:45) I agre Pedro

  McTim: (15:46) Ok, and the ASO is also "empowered" due to ti's MoU

  SivasubramanianM: (15:46) The proposals for procedures, counter procedures, processes, counter processes, powers and counter powers somehow take ICANN closer to being a UN General Assembly.

  Keith Drazek (ICG Liaison): (15:46) I recognize and appreciate Fadi's concerns about inadvertently increasing the power or influence of governemnts in the ICANN community. I would also say that there's an expectation of reasonable checks and balances and ensuring the Board is not the final arbiter of its own decisions. We can secure the latter without risking the former.

  ras: (15:47) +1 Pedro, the model does not allow a "government" to exercise "membership", it allows the GAC as a whole as an AC exercise membership and then a single goiverment is only one voice within the GAC as a whole

  SivasubramanianM: (15:47) The idea of an empowered community needs to be pursued with adequate caution and safeguards

  SivasubramanianM: (15:48) May be examined in detail during Work Stream2

  SivasubramanianM: (15:50) posted it because the transcript/notes were incomplete

  Farzaneh Badii: (15:50) Jordan, Thank you Thank you Thank you

  Matthew Shears: (15:50) @ Jordan  + 100

  Jordan Carter (.nz, ccTLD member): (15:51) The political risks are on both sides of the debate

  Keith Drazek (ICG Liaison): (15:51) +1 Jordan

  Mathieu Weill, ccNSO, co-chair: (15:51) There are more than 2 sides

  Seun Ojedeji: (15:51) Thanks and bye

  Jordan Carter (.nz, ccTLD member): (15:52) and what I would really, really not like to see is anyone senior in this organision pretending otherwise, on the basis of a model that has BARELY begun to befleshed out in dwtail

  Jordan Carter (.nz, ccTLD member): (15:52) Many sides, Mathieu.

  Malcolm Hutty: (15:53) Yes this goes beyond what is in the IANA Functions Contract, but the IFC certainly contains  measures addressed to ICANN accountability that go way beyond just IANA functions

  Jordan Carter (.nz, ccTLD member): (15:53) This whole Accountability process is *predicated* on replacing the accountaility arising from the IANA functions contract. I am mystified by Fadi's response.

  Malcolm Hutty: (15:54) agreed, Jordan

  Keith Drazek (ICG Liaison): (15:54) My agree fully with Jordan that the CCWG needs the time and space to flesh out this concept. I feel like some have alredy decided it's unacceptable. I appreciate the concerns raised by everyone, but the CCWG truly needs the opportunity to continue its work. After all, this proposal is the result of public comment and deliberations this week.

  Jordan Carter (.nz, ccTLD member): (15:54) the fact that they are not the same is kind of irrelevant.

  Chris Disspain: (15:54) Keith...I don't get that feeling

  Chris Disspain: (15:54) I think there is a willingness to work on it

  Jordan Carter (.nz, ccTLD member): (15:54) I don't think any of us know if it's fit for purpose yet

  Alan Greenberg: (15:54) Point of order. Hybrid between WHAT and WHAT?

  Jordan Carter (.nz, ccTLD member): (15:55) maybe it's meant to be the hybrid of the various groups

  Keith Drazek (ICG Liaison): (15:55) Thanks Chris, appreciate that.

  Becky Burr: (15:55) There is a lot of work to do.  We have many open questions, we have yet to hear from counsel on the details of the proposal (which of course need to be fleshed out).  Please let us not retreat to our corners but continue the meaningful and substantive dialogue we were just beginning to have

  Jordan Carter (.nz, ccTLD member): (15:56) ... beginning to have.

  Matthew Shears: (15:56) + 1 Becky

  Jordan Carter (.nz, ccTLD member): (15:56) and to resume tomorrow!

  Keith Drazek (ICG Liaison): (15:56) +1 Becky

  mike: (15:56) +1 Becky

  Becky Burr: (15:56) alan, hybrid between voluntary/cooperative and enforceable

  Chris Disspain: (15:56) absolutely becky

  Keith Drazek (ICG Liaison): (15:56) SHARED POWER = CHECKS AND BALANCES

  Leon Sanchez (Co-chair ALAC): (15:57) @Alan if I understand  your question well this would be a hybrid model between voluntary and membership/designator model

  McTim: (15:57) Nail on head BB!

  Robin Gross [GNSO - NCSG]: (15:57) Agreed.  We are really getting into the nitty gritty now and it will take some time to flesh out.

  Alan Greenberg: (15:57) Becky, does that include Designator or only if there is membership in your mind?

  Avri Doria (atrt): (15:57) lets also be careful of complexity

  Alan Greenberg: (15:58) an someone resent or provide a link to list of stautatory rights?

  Holly Gregory (Sidley): (15:58) Agreed Becky and Thmas:  a number of legal issues will need to be looked in to once the proposal is fleshed out

  Avri Doria (atrt): (15:58) too many sets of complicated conditions and triggers may make it too hard to explain

  Becky Burr: (15:58) i believe both designator and membership are on the table

  Alan Greenberg: (15:58) Good

  rudi daniel: (15:59) so/ac.  model rocks....I