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Members: Alan Greenberg, Becky Burr, Cheryl Langd= on Orr, Eberhard Lisse, Izumi Okutani, James Bladel, Jorge Villa, Julia Wol= man, Leon Sanchez, Mathieu Weill, Olga Cavalli, Par Brumark, Robin Gross, R= oelof Meijer, Sebastien Bachollet, Steve Delbianco, Thomas Rickert (17)
Participants: Kavouss Arasteh, Avri Doria, Bob Ta= kacs, Christopher Wilkinson, David McAuley, Edward Morris, Finn Petersen, G= ary Campbell, Greg Shatan, Jonathan Zuck, Keith Drazek, Kevin Espinola, Mac= iej Tomaszewski, Mark Carvel, Paul Szynder, Pedro Ivo Silva, Phil Buckingha= m, Rudi Daniel, Sabine Meyer, Thomas Schneider, Tomohiro Fujisaki, Vrikson = Acosta, Yasuichi Kitamura (23)
Legal Counsel: Edward McNicholas, Holly Gregory, Ingrid= Mitermaier, Josh Hofheimer, Michael Clark, Miles Fuller, Tyler Hilton, Ros= emary Fei (8)
Staff: Adam Peake, Alice Jansen, Berry Cobb, Kim = Carlson
Apologies:
**Please let Brenda know if your name has been left off the list (at= tendees or apologies).**
Transcript CCWG ACCT - Call #34_26 May.doc
Transcript CCWG ACCT - Call #34_26 May.pdf
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p30issltzhv/
The audio recording is available here: http= ://audio.icann.org/gnso/gnso-ccwg-acct-26may15-en.mp3
CCWG-Accountability Meeting #35 =E2=80=93 Tuesday 26 May 2015 from 12:00= =E2=80=93 14:00 UTC
1. Welcome, Roll Call & SoI
2. Feedback received on CCWG proposal
3. Next steps on discussions regarding UAs and other membership mo= dels (follow-up on recent mailing list activity)
4. Legal group and engagement with lawyers
5. Work plan post BA - 2nd public comment
6. AoB (introduction of video if available)
1. Welcome, Roll Call & SoI
CCWG is encouraged to provide outstanding = SoIs - staff can assist as needed.
2. Feedback received on CCWG proposal= strong>
It would be useful to receive a short = ;update on discussions in our respective communiti= es. As a reminder we have currently rece= ived 4 comments. The CWG-stewardship is manag= ing 50 comments. It would be valuable to= share what comments are currently being = ;drafted.
- Mathieu was invited to a ccNSO Council&n= bsp;call where the CWG and CCWG proposals&nbs= p;were discussed. We should expect that the&n= bsp;Council will ask us to highlight which of our&= nbsp;proposals affect ccTLDs and in which man= ner. There might be an official correspondence.&nb= sp;
- BC will be sending in comments: enforcing&nbs= p;powers may require that SO/ACs adopt member= status under California law and will encourage th= e CCWG to provide further explanation on this= model. Suggestion to start answering these q= uestions. It was found that slides prepared&n= bsp;by Xplane were a very helpful way to dige= st report content.
- Community is seeking clarification about members a= nd UA structure
- RySG will be submitting comments that&nb= sp;are largely supportive.
- IPC is drafting comments that are l= argely supportive. Jonathan will coordinate with B= ecky on comments.
- Stress Tests Work Party will determine&n= bsp;how assessments will change if lack enfor= ceability.
- As we make decision about type of&n= bsp;UAs and variation, stress tests should al= so look at accountability issues in particula= r
--> Specific solutions for specific stress&n= bsp;tests.
3 Next Steps on Discussions regarding&n= bsp;UAs and other membership models
There have been very thorough and fruitful = ;discussions regarding membership model and UAs.&n= bsp;Many concerns and questions remain to be&= nbsp;answered: accountability of members etc being= one.
Should we adopt membership model or appoin= t Chairs to be Members of ICANN?
UAs provide legal vehicle for community to= hold ICANN accountable. We need legal v= ehicle to achieve goals.
UAs is not the only legal vehicle tha= t can provide us with their empowerment. = ;There have been discussions about how corporation = ;in Switzerland could achieve this for instance. U= As has been the easiest model.
SO/AC Chairs can be appointed as member bu= t this triggers new questions.
Hybrid model could be adopted and would&nb= sp;function: SO/ACs could choose to form UAs while= others may choose to appoint their Chai= r.
Bylaws would recognize each member or the&= nbsp;figure of the Chair. Bylaws would be&nbs= p;recognizing the position of the Chair.
Chair would act on behalf of SO/AC. U= As would be governed by rules stated by&= nbsp;each SO/AC.
To avoid: 1) Chair used as synonym of= individual; 2) Equate legal personhood of&nb= sp;individual to the one grand to Chair =
Key questions: 1) whether it is possible&n= bsp;for Bylaws to recognize only function or&= nbsp;figure instead of natural person, whether&nbs= p;Bylaws would provide powers to position rat= her than person; 2) whether the risks co= uld increase through membership model.
Feedback:
- If you have not uniformed arrangement&nb= sp;between SO/ACs - when come to voting, = ;there will be different criteria, this won't= be normal. We address one accountability&nbs= p;question but transfer another accountability que= stion. Clarity is needed on overall picture.&= nbsp;
--> This needs to further discussed but= we need to come to a conclusion on= how to address this issue. Answer could= be that each SO/AC would apply methods.=
- We need to be careful that it = not necessarily be Chair of SO/AC but rather = the Chair SO/AC designates. We may want to&nb= sp;distribute the position (one per region et= c). We do not want to make it sound= like SO/AC Chair. There may well be&nbs= p;situations where we want to put someone in = position but this person cannot. We might want&nbs= p;to consider replacements. ALAC has certain = rules when it comes to accountability criteri= a. We have processes that can be written= in Bylaws, Charters etc to ensure crite= ria are being met. Can we tie responsabi= lity to a rank?
- It can be another person that could= be designated. We must avoid complicating&nb= sp;this. Most SO/ACs have formal processes. I= n favor with proceeding with this route. = ;
- UAs is really consistent with trying&nbs= p;to make SO/ACs into members. Looking at&nbs= p;Chairs concept, agree that acting as a = ;conduit for the will of SO/AC. It is&nb= sp;symbolically appropriate.
- 1) We need to have the representatives o= f SO/ACs in the community body accountable&nb= sp;to their own SO/ACs we need enforceable&nb= sp;tools against these representatives 2) we = need to have enforceable tools against ICANN&= nbsp;decision that would not respect community&nbs= p;body decision 3) we keep things as sim= ple as possible. Do the options we are&n= bsp;considering have these requirements? Are SO/ACs&nbs= p;already UAs? Legal counsel to clarify.
- Holly said we might already be UAs.= There is no difference but difference i= n how it can be explained to others = ;and how will it be perceived adds a&nbs= p;level of complexity. Existence of UA and&nb= sp;its descriptions makes it even more comple= x.
--> Agrees with three requirements - th= ere are a number of options: 1) UAs = ;as members ; 2) Human beings designated = ;by UAs as members. You need some = entity to have enforceable right. There needs= to be a level of intent, basis/minimal&= nbsp;rules to help indicate who is involved i= n organization. There may be benefits in = ;being registered as UA. Discussion around UA= s have added a degree of complexity.
--> We are fine-tuning to make things a= s easy as possible. The member model is&= nbsp;best way for community to get powers.&nb= sp;Whether the SO/AC is member or a dele= gate appointed by SO/AC, you need some p= ower to ensure that that person is respe= ctful of desires of community group he/she&nb= sp;represents. Traditionnally the way to get = there is to have group be legal person&n= bsp;itself. The additional benefit you would = have by registering UAs as an entity, yo= u get liability protection that comes with&nb= sp;it. As many rules you have, you have&= nbsp;formed intent to create UA, we are advoc= ating final step of registering for legal&nbs= p;benefit.
- ICANN will require certain legal balance= : enforceability that considers reality.
- Are we on same page with respect&nb= sp;to enforceability? If the group considers = robust enforceability as a requirement, then = we are taking about membership model. Questio= n is how do we implement membership mode= l. Using UAs would be a very good i= mplementation model. Concerns about complexity thi= s might add. If we have set of requ= irements that are implemented including UAs, = would you still go for other option even= if we had to sacrifice goals? We n= eed to communicate the whole accountability a= rchitecure in professional matters.
- The reference that some SO/ACs may = already be UAs, we do not want SO/ACs&nb= sp;to be UAs but to have a shadow. = Perceived complexity of how people will under= stand ICANN. There has been a discussion = ;on potential problems of if we had abil= ity to go to Court we end up with&n= bsp;possibility. When writing these rules can = ;we waive the right to go to court?
- It might be useful to have a c= omparitive table betweem UA and non UA m= embership - pros and cons - degrees of&n= bsp;implementation and complexity.
- Concerned about discussion - if we = want to end up being organization where = we are able to go to Court, it is&n= bsp;not an organization I would like to = join. Best way would be international organiz= ation.
- Conversation is missplaced - enforceability&n= bsp;issue is about having authority that we&n= bsp;are putting in Bylaws. It is not abo= ut going to Court.
- Governance arrangements's basis principle is&= nbsp;to prevent going to Court. The fact = ;that you can go to Court is a cred= ible threat so that no one goes to = Court. We need to acknowledge feedback on&nbs= p;complexity. Suggestion would be for the CCW= G to create UA - we submit to group= draft articles of association based on = legal counsel's legal input. Anyone on this&n= bsp;list can comment and add concern on = UA. We can report to community first han= d.
- If you create a legal person, perce= ption that might lose multistakeholder model = soul, it does not have any reality attac= hed to it.
- It is not the legal process, it is&= nbsp;the perception that it will cause among&= nbsp;others that is problematic. Is it possib= le to waive litigation?
- Having ability to go to Court and&n= bsp;ability to remove Board directors are the= two powers/authorities that make it so unnecessar= y
- Powers that are put in place are&nb= sp;far more complex that anything having to&n= bsp;do with UAs. Struggling to understand why= UAs are causing so much concern when&nb= sp;it is the least complex part of this&= nbsp;entire process. You can certainly waive = rights to Courts but why create such a&n= bsp;complex set if not going to use them?
- Setting up a UA documenting how we&= nbsp;do it and explaining steps that need&nbs= p;to be taken might help explain concept = ;to community together with far more complex&= nbsp;escalation path we have already been wor= king on. Suggestion: Cochairs to talk to = ;Comms Team to see if can facilitate com= ms to community.
ACTION ITEM - CoChairs to reach out t= o Comms Team to analyse feasibility.
- Overall structure may be complex and&nbs= p;may benefit from further explanation. We ne= ed to see how we can boil complexity.&nb= sp;
- Does this structure increase opportunity = ;for individual members to litigate on their&= nbsp;own without community consensus?
- Threshold could probably be set (member&= nbsp;approval before litigation).
ACTION ITEM: Legal counsel to do some = ;research on litigation threshold.
- How do we have people understand th= e overall process? A lot of this is = ;about explanability. Issue of individual members&= nbsp;taking action.
ACTION ITEM: CCWG to go through memorandum= s put together by counsel on UAs - = https://community.icann.org/download/attachments/52890082/REV= ISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411= 876-v4.pdf?version=3D1&modificationDate=3D1430694085000&api=3Dv2&nb= sp;
We will reach out to comms Team to&nb= sp;see how we can explain this.
- Complexity for UA membership implementation&n= bsp;needs to be added.
--> We need to define scenarios first&n= bsp;and will be able to provide clear ta= ble.
ACTION ITEM - Provide clear comparative do= cumentation on models.
Legal Group & Engagement with Lawye= rs
We had discussion on last call where = concept of rearranging legal subteam was sugg= ested. We have reached out to ICANN to&n= bsp;provide us with information on legal cost= s incurred so far. We have hit 1 million= dollars for CCWG. We will be asking&nbs= p;for timesheets and more detail on time = ;being sent on what subject.
Variety of expertise, getting lawyers up-to-spe= ed and research on legal requirements/implementati= on added to legal costs.
1,7 million for both CCWG and CWG
We will be exercising more control on = ;costs.
Work Plan Post BA - Second Public&= nbsp;Comment Period
Public comment will end on 3 June. St= aff will populate comment review tool by = ;June 7. Our regular call on June 9 = ;is going to be extended by an hour = ;to ensure everyone is comfortable the PCRT w= as populated in appropriate manner. That will= kick WP work on analysing comments. Jun= e 16 will be freeze date for WPs' o= utput. We will be assessing which parts = raise concerns, divergences, agreements etc.
BA schedule:
We will then move into phase where ou= r goal will be to launch a 40-day c= omment period. We will attempt to finalize&nb= sp;proposal in time for Dublin meeting which&= nbsp;means we will need to finalize proposal&= nbsp;by October 9. We have the month of&= nbsp;July to finalize document for comment. D= o we plan for a F2F or intensive se= ssion? Do we move fast and finalize this= before or after July 20? Is it cur= rently foreseen that there would be a ne= ed to have specific work groups or suppo= rt for that period? There is some suppor= t among Chairs and Rapporteurs for a F2F= in July.
Feedback:
- What happened to consensus work plan?'= p>
--> We are planning to try and clo= se as many items as early as possible&nb= sp;if we get consensus on IRP or reconsi= deration process e.g.. This is planning for&n= bsp;outstanding issues in July. It is not&nbs= p;replacing the approach described by Thomas. = ;
- July 16 difficult.
ACTION ITEM - Cochairs to follow up on&nbs= p;F2F/intensive session on list.
Objective is to select dates and determine= format asap.
6. A.O.B
Video is not available. As part of en= gagement activity, we are planning to do = ;videos to help community understand what we&= nbsp;are working on. Pilot is currently being= finalized by comms Team. We will review= and will share with group.
Lawyers have not received stream of emails= on UAs.
ACTION ITEM - staff to investigate whether= lawyers have access to mailing list.
Lawyers would welcome guidance on what is&= nbsp;needed for Buenos Aires.
ACTION ITEM =E2=80=93 Thomas to check whether GAC wants a brie= fing session
ACTION ITEM - Cochairs to provide lawyers&= nbsp;on clear Buenos Aires expectations
ACTION ITEM - CoChai= rs to reach out to Comms Team to an= alyse feasibility.
ACTION ITEM: CCWG to= go through memorandums put together by = counsel on UAs - https://community.= icann.org/download/attachments/52890082/REVISED%20Memo%20on%20Unincorporate= d%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=3D1&modif= icationDate=3D1430694085000&api=3Dv2
ACTION ITEM - Provid= e clear comparative documentation on models=
ACTION ITEM - Cochai= rs to follow up on F2F/intensive session on&n= bsp;list.
ACTION ITEM - staff&= nbsp;to investigate whether lawyers have access to mailing list.&= nbsp;
ACTION ITEM =E2=80=93 Tho= mas to check whether GAC wants a briefing session
ACTION ITEM - Cochai= rs to provide lawyers on clear Buenos Ai= res expectations
Kimberly Carlson: (5/26/2015 05:06) Welcome to CCWG Accountability Meeti= ng #34 on 26 May! Please note that chat sessions are being archived a= nd follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountabi= lity/expected-standards
ARASTEH: (05:52) Pls kindly advise that I will be dialed
Kimberly Carlson: (05:52) Yes, I will ask the operator to dial yo= u now
Mathieu Weill, ccNSO, co-chair: (05:52) Hello there
ARASTEH: (05:52) I AM NOT CONNECTED
ARASTEH: (05:53) PLEASE ADVISE TO DIAL ME UP
ARASTEH: (05:54) Dear Brenda
Kimberly Carlson: (05:55) yes, I hear you
Yasuichi Kitamura (At-Large): (05:55) hi, all
Yasuichi Kitamura (At-Large): (05:56) yes, I can hear you.
ARASTEH: (05:56) I AM NOT CONNECVTED
Ingrid Mittermaier (Adler Colvin): (05:57) Good morning.
Holly Gregory (Sidley): (05:57) good morning
Michael Clark (Sidley Austin): (05:57) Good morning
P=C3=A4r Brumark (GAC Niue): (05:57) Hi all!
Jonathan Zuck (IPC): (06:00) Yo, yo, yo!
Cheryl Langdon-Orr: (06:00) hi all.
Josh Hofheimer (Sidley): (06:01) Hello all
Mathieu Weill, ccNSO, co-chair: (06:01) Who is on a submarine ?= p>
David McAuley (RySG): (06:01) I too wondered about pinging Mathie= u - seems ship has surfaced now
Sabine Meyer (GAC - Germany): (06:03) hello everyone!
Eberhard Lisse [.NA ccTLD Manager]: (06:04) Mathieu, traditionall= y, the answer is: "Pong"
Holly Gregory (Sidley): (06:10) UA status is an inexpensive organ= ization structure and should not pose any significant liability conce= rns as explained in several of our memos
Rudi Daniel: (06:10) good day all
Keith Drazek: (06:10) Thank you, Holly.
Pedro Ivo Silva [GAC Brasil]: (06:11) Hi all. Soory, no mic here.= The Brazilian Government is also drafting comments, to be submited soon.= p>
Leon Sanchez (Co-Chair, ALAC): (06:12) Excellent @Pedro!
Holly Gregory (Sidley): (06:12) good point to test re what happen= s without enforceable powers
Cheryl Langdon-Orr: (06:13) thanks for that update @steve
David McAuley (RySG): (06:13) Good suggestion Steve
Leon Sanchez (Co-Chair, ALAC): (06:14) So I think the question on= "who guards the guardians?" remains to be solved
Holly Gregory (Sidley): (06:14) Leon, that question can continue = on into infinity
Cheryl Langdon-Orr: (06:14) indeed
David McAuley (RySG): (06:14) Agree @Holly
Jonathan Zuck (IPC): (06:15) Hmm. That sounds like a red herring = to me. The ICANN community is accountable to the internet community and the= only possible way to enforce that "accountability" is to come volunteer at= ICANN I think.
avri doria: (06:15) Holly, true, still no reason not to understan= d the first level or two of guardians.
Sabine Meyer (GAC - Germany): (06:15) or creating a triangle, for= example
Holly Gregory (Sidley): (06:15) Agree Avri!
Jonathan Zuck (IPC): (06:17) I think this is really just a conver= sation about who gets the last word and we're basically agreed that it shou= ld be the community. There might be accountability issues with the structur= es we create but "who holds the stakeholders accountable" is way outside ou= r scope, confident in our diversty
Mathieu Weill, ccNSO, co-chair: (06:18) @Jonathan: it may not end= up covering everything but it's important to test. There are ways to impro= ve accountability (transparency, consultation, independence, ...)
Kimberly Carlson: (06:19) Please mute line if not speaking - than= k you
Holly Gregory (Sidley): (06:19) Members can be unincorporated ass= ociation or human beings -- in each case a "legal person"; having hum= ans serve as members does not obviate the need for UAs however, because you= will likely want a legally recognized group to seat the human (chair) and = have rights to remove
Mathieu Weill, ccNSO, co-chair: (06:20) @Holly: if the Chair is t= he member (say: Alan Greenberg) with no UA, what happens when Alan is no lo= nger chair of ALAC ?
Alan Greenberg: (06:21) My real question is not that Mathieu, but= can I become the Memeber by nature of my being Chair (or holding some othe= r specific office in At-Large).
Holly Gregory (Sidley): (06:21) Mathieu, you will need a mechanis= m to ensure that the membership is tied to the position
Mathieu Weill, ccNSO, co-chair: (06:21) Agree Alan, that's anothe= r way to ask the question
David McAuley (RySG): (06:22) Holly, would a bylaw naming the cha= irs as members be sufficient?
Holly Gregory (Sidley): (06:23) Alan, yes- there could be a provi= sion for certain persons to be members due to their positions. still = have issue of how to ensure that ALAc can enforce right if dispute arises r= e who the ALAC chair is
James Bladel - GNSO: (06:24) Are there any scenarios/situations i= n which a chair would not be eligible (due to their "day job" or nationalit= y or something) to be a Member?
Mathieu Weill, ccNSO, co-chair: (06:25) @James : we would have to= clarify our requirements I guess. WP1 did some work on that a while ago
Josh Hofheimer (Sidley): (06:25) To add to Holly's comment, the g= roup also would need a means to ensure that the chair was voting as the gro= up desired when it comes to powers reserved to the "Members," otherwise you= will need a mechanism to remove the chair of the group
Alan Greenberg: (06:25) @Holly, The ALAC has explicit rules regar= ding how anyone (Chair or other appointee) can be removed by a formal decis= ion of the ALAC.. I presume that other SO/ACs either have similar rules or = could have if they wished.
Roelof Meijer (SIDN, ccNSO): (06:26) @Holly: but that's an intena= l SO/AC matter, how is determinded who the chair (really) is, isn't it? Tha= t process is made clear in the bylaws relevant to the SO/AC
Steve DelBianco [GNSO - CSG]: (06:26) @Kavous -- it's= not unusual. Some of ICANN board directors are nominated and others = are elected. It's a mix
Holly Gregory (Sidley): (06:27) David, a bylaw would work, but th= e issue continues re what happens when that person does not act as the grou= p he or she "represents" desires; need ability of the underlying group to r= emove as a member and replace for example with a new chair -- and if a disp= ute arises in that group, how to ensure enforceable rights -- which brings = us back to UAs
Cheryl Langdon-Orr: (06:27) @james would think it should be an of= ficer's of the AC/SO. ie. Chair or their delegate
Greg Shatan: (06:27) @Josh, these could be written into the ICANN= bylaws or more properly into the bylaws of the relevant SO/AC.
Cheryl Langdon-Orr: (06:29) exactly @alan
Jonathan Zuck (IPC): (06:29) NOT the "King." They're the voice, t= he decisions all get made using existing structures
Holly Gregory (Sidley): (06:31) Alan, agree so long as there are = clear rules that are enforceable for the group to remove the person that is= designated by the group
Robin Gross [GNSO - NCSG]: (06:32) Along the lines of James' ques= tion, could a person from an OFAC country be able to be a Member?
Holly Gregory (Sidley): (06:32) by the way, if the groups have ru= les at the level we are describing, it is fairly likely that they could be = considered UAs already
Mathieu Weill, ccNSO, co-chair: (06:33) @Holly: wow ! that would = be significant news !
Ingrid Mittermaier (Adler Colvin): (06:33) Agree with Holly. = ; Need to make sure control over who represents a SO/AC stakeholder as memb= er is enforceable.
Holly Gregory (Sidley): (06:34) Josh and I are together and woul = like to respond
Josh Hofheimer (Sidley): (06:34) +1 @Holly and Ingrid.
Leon Sanchez (Co-Chair, ALAC): (06:34) Will go to you @Holly
Michael Clark (Sidley Austin): (06:35) Agree as well with Josh Ho= lly and Ingrid
avri doria: (06:37) that has been my hope that there was an ident= ity between the SOAC and the UA.
Thomas Rickert, CCWG Co-Chair: (06:39) Alan, are you against the = idea as such or do I hear you correctly that you are concerned about how we= communicate this?
Alan Greenberg: (06:40) @Thomas, by having the existence of a UA,= we add the complexity. It is more than just needing a good communications = vehicle.
Keith Drazek: (06:40) mute phones and computers please
Jonathan Zuck (IPC): (06:43) I don't think it adds any real opera= tional complexity. IT's a legal nuance thta won't really affect how we do b= usiness at ICANN
Holly Gregory (Sidley): (06:45) Jonathan, Agreed
Sabine Meyer (GAC - Germany): (06:45) are there any specific crit= eria for this intent?
Holly Gregory (Sidley): (06:46) Registration shows the intent as = does a wrting like a set of very basic bylaws that expresses the intent
Thomas Rickert, CCWG Co-Chair: (06:46) please mute your lines whe= n not speaking
David McAuley (RySG): (06:46) Pllease mute if not speaking
Mathieu Weill, ccNSO, co-chair: (06:46) @JOsh, Holly: with what y= ou are saying, the powers might work even if some SO/ACs did NOT regi= ster as UAs right ? They would not benefit for the same degree of enforceab= ility and liability protection, but the system would work out ?
Robin Gross [GNSO - NCSG]: (06:46) lots of noise on the line
Sabine Meyer (GAC - Germany): (06:47) thank you Holly
Holly Gregory (Sidley): (06:47) Yes Mathieu -- it is a risk = issue, and the community or groups in the community may be satisfied with t= aking on the risk of unenforceability
Mathieu Weill, ccNSO, co-chair: (06:48) Thanks. That could put co= ncerns of some to rest, if they do not HAVE to create the UA
Alan Greenberg: (06:48) An AC/So may de facto be an UA, but remem= ber, the UA we are talking about is NOT the AC/SO but adifferent grouping o= f individuals that should map to the AC/SO.
Sabine Meyer (GAC - Germany): (06:48) Mathieu, it might also crea= te concerns to tell some SO/ACs that they are in fact a UA already.
David McAuley (RySG): (06:48) Can the chairs be the named members= and SOs/ACs that want to become UA can do so but others might retain right= to become UA in future if enforcement action needed =E2=80=93 would that h= elp?
Holly Gregory (Sidley): (06:49) They do not HAVE to create UAs bu= t your lawyers want to be clear about the risks.
Greg Shatan: (06:49) @Alan, I think Holly's point was that we cou= ld skip the "mapping" concept if we accept the idea that an SO/AC is a UA.<= /p>
Mathieu Weill, ccNSO, co-chair: (06:50) @Sabine: hum... I can't s= ee which group would have such concerns... ;-)
Holly Gregory (Sidley): (06:50) But remember that only legal pers= ons can be membe-- so UAs or humans
S=C3=A9bastien (ALAC): (06:50) But is unenforceability really a r= isk? Or how we need to work within ICANN among equal partners?
Roelof Meijer (SIDN, ccNSO): (06:50) @Sabine: if I understood it = correctly, you can only be a UA if you intend so. So without the intention = (=3Dpresent situation), SOAC's are not UAs
Sabine Meyer (GAC - Germany): (06:50) thanks to my legal training= I only ever speak in hypotheticals.
Holly Gregory (Sidley): (06:51) Agree Thomas re lack of complexit= y in UAs
Sabine Meyer (GAC - Germany): (06:52) But the threshold for such = an intent to be assumed might be rather low, Roelof. I admittedly read some= German principles into this.
Josh Hofheimer (Sidley): (06:53) @Alan, our point is that it may = already be a reality that some or all of the SO/ACs may be de facto UAs.
Holly Gregory (Sidley): (06:53) The shadow entities certainly add= complexity in terms of perception and consideration should be given to whe= ther the "shadow" aspect is truly necessary.
Steve DelBianco [GNSO - CSG]: (06:53) What may be com= plex to Create could well be simple to administer. Let's look t= o long-run for effective powers we can simply enforce
Jonathan Zuck (IPC): (06:54) +1 Steve!
Jonathan Zuck (IPC): (06:54) we can't remove the board members wi= thout enforceability either
Thomas Rickert, CCWG Co-Chair: (06:55) Jonahan +1
Holly Gregory (Sidley): (06:55) he ability toemove the board need= s enforceability
Thomas Rickert, CCWG Co-Chair: (06:55) @Alen, pls look at Jonatha= n's and Hollie's remarks.
Alan Greenberg: (06:55) @Jonathan, I said that we WOULD need the = ability to go to court over refusal to be removed.
Thomas Rickert, CCWG Co-Chair: (06:55) So you ar willing to compr= omise on enforceability, right?
Josh Hofheimer (Sidley): (06:56) @Alan, we already have an IRP an= d dispute resolution mechanism that is being considered by CCWG. But = in the end, the Board also needs to recognize the "power" of the community,= which can be best accomplished through the Member model, with enforceable = powers reserved to the Members.
Holly Gregory (Sidley): (06:56) We are happy to create a comparis= on chart but we have provided this information in other forms.
Mathieu Weill, ccNSO, co-chair: (06:57) @Holly: let's not duplica= te
Alan Greenberg: (06:57) What I had said about waiving the right t= o go to court was for enforcing actions OTHER than removal of board members= .
Jonathan Zuck (IPC): (06:57) I'm not willing to compromise on enf= orceability for what really seems to be a thin objection. We would hope it = NEVER came to that and the truth behind Alan's statement that it woul= d be time consuming to go to court so we would likely NOT do that.
Thomas Rickert, CCWG Co-Chair: (06:57) @Alan, but then you would = still need the legal vehicle to do that...
Rosemary Fei: (06:57) My apologies for joining late -- alarm fail= ure
Steve DelBianco [GNSO - CSG]: (06:57) It's great to h= ave Sidley and Adler responding to so many of our questions and hypothetica= ls, but we might need to watch our legal fees
Thomas Rickert, CCWG Co-Chair: (06:58) Jonathan, my comment was d= irected at Alan (in case you thought it was for you)
Leon Sanchez (Co-Chair, ALAC): (06:58) Welcome @Rosemary .-)
Alan Greenberg: (06:58) @Thomas, YES, this is a DIFFERENT sub-dis= cussion about legal entities.
Jonathan Zuck (IPC): (06:58) yeah, I knew that. It just inspired = my response. ;)
Josh Hofheimer (Sidley): (06:58) +1 Jonathan. The fact that= you can go to court is a credible threat, and makes it so you don't have t= o.
Greg Shatan: (06:58) @Steve, they won't charge us extra for answe= ring on the call....
Keith Drazek: (06:58) All of the accountability mechanisms we're = currently designing rely entirely on enforceability. Without it, the commun= ity becomes advisory and the Board remains the ultimate authority.
Steve DelBianco [GNSO - CSG]: (06:58) @Josh -- would = you please say THAT on the call bridge? It's a keypoint
Holly Gregory (Sidley): (06:59) We do not mean to propose that th= ere will be regular disputes that need to be resolved in court. We ar= e considering worst case scenarios. But again, this is a risk issue a= nd you may decide that you don't need enforceable powers. Agree Becky=
Josh Hofheimer (Sidley): (06:59) +1 Becky!!
David McAuley (RySG): (06:59) Agree w/Becky and Keith
James Bladel - GNSO: (06:59) +1 to Becky & Keith
Greg Shatan: (07:00) +1 to Becky & Keith.
Thomas Rickert, CCWG Co-Chair: (07:00) +1 Becky!
Keith Drazek: (07:00) Everyone should read Becky's email from las= t week on this discussion.
Thomas Rickert, CCWG Co-Chair: (07:00) +1 Keith
Holly Gregory (Sidley): (07:01) I dont believe that Beckky's emai= l was shared with the lawyers.
Steve DelBianco [GNSO - CSG]: (07:01) +1 Becky
Holly Gregory (Sidley): (07:02) Leon, I am not sure that we= are receiving access to emails between the members of CCWG. Could so= meone look into this?
Leon Sanchez (Co-Chair, ALAC): (07:02) The ability to go to Court= is the stick that will keep us from actually going to Court
Alan Greenberg: (07:04) @Mathieu. I don't think ANYONE is saying = that the act of creating a UA is too complex.
Leon Sanchez (Co-Chair, ALAC): (07:04) That is so kind of you Mat= hieu :_)
Holly Gregory (Sidley): (07:04) We provided very basic drafts of = what is required to create including draft articles/bylaws
Sabine Meyer (GAC - Germany): (07:04) exactly, Alan.
Mathieu Weill, ccNSO, co-chair: (07:05) @Holly : yes Holly, page = 9 of the UA memo
Michael Clark (Sidley Austin): (07:06) Agree with Mathieu and Leo= n. The goal of bylaws and other structures is to build in procedures = that would obviate the need to go court and, if you do have to go, be confi= dent that the procedures of the organization would be upheld.
Mathieu Weill, ccNSO, co-chair: (07:06) @Alan: not only creating,= also designing accountability
Holly Gregory (Sidley): (07:07) Well said Michael Clark
David McAuley (RySG): (07:07) The legal docs we received are avai= lable here: https://community.icann.org/pages/viewpag= e.action?pageId=3D52890082 under =E2=80=9CRESPONSES FROM SIDLEY AUSTIN,= ADLER & COLVIN=E2=80=9D
Holly Gregory (Sidley): (07:08) y have the other rights if you ar= e not going to enforce them?
David McAuley (RySG): (07:08) good question Holly
avri doria: (07:08) can we wave litigation for mediation. i= note it is mostly lawyers arguing for litigation. it is a norm for t= hem, it is not for the rest of us.
Jonathan Zuck (IPC): (07:09) mediation isn't binding @Avri. Arbit= ration maybe but that starts to feel more like court
Rosemary Fei: (07:09) Waiver unless group votes, not total waiver=
avri doria: (07:09) i tough mediation could indeed be binding.
Greg Shatan: (07:09) Mediation is merely a negotiation between tw= o parties, with a neutral party facilitating the discussion. Th= at won't really help us here.
Keith Drazek: (07:09) I don't think anyone is arguing for litigat= ion.
avri doria: (07:09) .. thought ...
Leon Sanchez (Co-Chair, ALAC): (07:09) Plus arbitration is always= able to be challenged in court
Greg Shatan: (07:10) Arbitation is just privately-contracted liti= gation.
Jonathan Zuck (IPC): (07:10) there is literally no such thing as = a binding mediation
Mathieu Weill, ccNSO, co-chair: (07:10) @Avri : I see no one argu= ing for litigation ? I hear arguments about "credible threats"
Rosemary Fei: (07:10) Generally, informed consent to waive right = to go to court can be uenforceable
Alan Greenberg: (07:10) From *my* perspective (and I am not talki= ng on behalf of anyone) is that the iron-clad ability to sleectively or en = masse remove directors WOULD be sufficient.
avri doria: (07:10) Leon, even if that is the case, and mostly th= ose are thown our becasue the waiving was done properly, it is still a bett= er step.
Rosemary Fei: (07:10) Sorry, "enforceable"
Rosemary Fei: (07:11) Agree, holly, having individuals as members= will be far more complex
Leon Sanchez (Co-Chair, ALAC): (07:11) @Alan to have the ability = to remove directors we still need legal personhood
Jonathan Zuck (IPC): (07:12) I'm more fond of Alan's suggestion t= hat we raise the consensus threshold for going to court
Greg Shatan: (07:12) I'm a transactional lawyer. I'm almost= never in court or involved in litigation. My wife, a psychologist wi= th a social services agency, is in court much more often than I.
Alan Greenberg: (07:12) @Leon, YYYEEESSS. As I said earlier, thes= e are TOW DIFFERENT DISCUSSIONS that we are having in parallel.
Alan Greenberg: (07:12) TOW=3DTWO
Leon Sanchez (Co-Chair, ALAC): (07:12) @Alan :P
Josh Hofheimer (Sidley): (07:13) +1 Leon
Keith Drazek: (07:13) We probably need a one-pager that explains = the WHY and HOW on UAs.
Holly Gregory (Sidley): (07:14) Keith, we are happy to assist the= communications team with that
Mathieu Weill, ccNSO, co-chair: (07:14) We are working on a coupl= e of narratives
Julia Wolman GAC Denmark: (07:14) +1 Keith
Rudi Daniel: (07:14) Such a live test proposition should be under= taken by the stress test team ?
Mathieu Weill, ccNSO, co-chair: (07:14) short stories
Josh Hofheimer (Sidley): (07:14) @Keith, the memo we provided on = UAs previously goes into this and answers a lot of FAQs
Mathieu Weill, ccNSO, co-chair: (07:15) Legal memo on UAs is : https://community.icann.org/download/attachments/52890082/REVISE= D%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876= -v4.pdf?version=3D1&modificationDate=3D1430694085000&api=3Dv2= p>
Josh Hofheimer (Sidley): (07:15) @Alan, to your point, isn't it t= he intent of the CCWG that disputes be adjudicated outside of court, throug= h IRP and escalation measures, and ultimately through arbitration.
Keith Drazek: (07:17) Good question Jonathan. I assumed the membe= rs would need to decide as a group and that there'd be a minimum threshold.=
Alan Greenberg: (07:18) @Josh, yes, that seems to be the intent a= t the moment, but intent today does not change what could happen in the fur= ute.
Rosemary Fei: (07:19) Only if individuals are members
Thomas Rickert, CCWG Co-Chair: (07:19) @Alan - but then it is abo= ut communication!
Jonathan Zuck (IPC): (07:20) At-large is FAR more complex than UA= s ;)
avri doria: (07:21) i think both GNSO and At-LArge about the same= in terms of levels of complexity.
Leon Sanchez (Co-Chair, ALAC): (07:21) that is some nice music
Steve DelBianco [GNSO - CSG]: (07:22) But the INCREME= NTAL complexity of UA's seems to be very slight
Alan Greenberg: (07:22) @Avri, yes, and most people NOT in one of= those orgs do not understand the other, and in fact, many WITHIN an org do= not really understand how tey work. I can give lots of examples.
avri doria: (07:24) most people do not spend time understanding p= rocess, they only want their issue taken care of.
avri doria: (07:24) and we all wnat a simple deau ex machina to s= olve all issues.
Mathieu Weill, ccNSO, co-chair: (07:24) @Avri: I wish it were so = ;-)
Robin Gross [GNSO - NCSG]: (07:25) Is this for CCWG only, or also= CWG?
Josh Hofheimer (Sidley): (07:26) We'd like to get some clarity fr= om CCWG which Member rights they would like to determine can be limited to = be enforced only though "consensus" or majority vote
avri doria: (07:26) if that is their costs, what does that say ab= out the amount of value the rest of us have plowed into the effort. w= hen thinking abou tthe cost, we need to think about how it made the rest of= the work possible and to try and decrease thhe amount of free labor we nee= ded to donate to ICANN.
Mathieu Weill, ccNSO, co-chair: (07:26) @Robin: CCWG
Mathieu Weill, ccNSO, co-chair: (07:27) @Josh: I think we still n= eed to discuss around that
Mathieu Weill, ccNSO, co-chair: (07:27) @Avri: agreed !
Robin Gross [GNSO - NCSG]: (07:28) thanks.
Jonathan Zuck (IPC): (07:28) no
Alan Greenberg: (07:29) @Avri, or at least have ICANN show more a= ppreciation (in concrete ways) for what they ARE getting for free!
avri doria: (07:29) Alan, what a dreamer!
Josh Hofheimer (Sidley): (07:29) @mathieu, thank you. We wi= ll await further guidance on that issue, unless you want to discuss more on= this call?
Leon Sanchez (Co-Chair, ALAC): (07:29) @Avri with the last statis= tic, We could say that volunteer work accounts for mor than 4 million dolla= rs in billable hours. That's only MY rough estimate
Adam Peake: (07:32) Board: Sunday, June 21, 3pm to 4pm BA l= ocal time.
Holly Gregory (Sidley): (07:33) two points: the lawyers are= no longer receiving the CCWG emails
Leon Sanchez (Co-Chair, ALAC): (07:33) @Holly there has been litt= le or no traffic in the legal sub-team list
Leon Sanchez (Co-Chair, ALAC): (07:34) @Holly we need to re-arran= ge how we communicate with you
Jonathan Zuck (IPC): (07:34) F2F's are the most productive, phone= next, listserv least
Rosemary Fei: (07:34) Leon, you asked if we were following the UA= discussions, but we didn't get those emails.
Keith Drazek: (07:36) can staff please post the email archive lin= k here in chat?
Robin Gross [GNSO - NCSG]: (07:36) We can do an "intense 2-day mt= g" via Adobe Connect rather well and with far less disruption from all the = travel
Holly Gregory (Sidley): (07:37) Leon, we agree that we need to di= scuss how we communicate, and also what the expectations are for Buenos Ari= es.
Leon Sanchez (Co-Chair, ALAC): (07:38) @Holly yes
avri doria: (07:38) If i remeber correctly the memo say that havi= ng the SOAC be the UA, was possible but had extra complexities. I do = not remember reading what those extra complexities were. or what it took to= get beyond them.
Izumi Okutani (ASO): (07:39) I like the idea of discussing in Jul= y. I prefer Robin's suggestion for adobe intense meeting more than face to = face, but I can do face to face if needed.
Leon Sanchez (Co-Chair, ALAC): (07:39) @Rosemary yes this is some= thing we need to work on so we don't flood your inbox with the many e-mails= that we exchange in the main mailing list
Sabine Meyer (GAC - Germany): (07:39) how much would you need to = rely on CCWG members to establish consent for the 2nd draft report?
avri doria: (07:39) but sometime i dont perfectly understand what= i am reading
Leon Sanchez (Co-Chair, ALAC): (07:40) @Avri I don't think those = extra complexities were addressed. Will have to review the memorandum again= myself :-)
Kimberly Carlson: (07:41) Email archive link: http://mm.icann.org/pipermail/accountability-cro= ss-community/
Alice Jansen: (07:42) Hi Kavouss, the transcripts can be found on= this page: https://community.icann.org/pages/viewpag= e.action?pageId=3D53775089
Keith Drazek: (07:43) Thanks Kimberly. Holly and Josh, the = emails on UA are in the archive at that link.
Rosemary Fei: (07:43) Do you want us to look at it? Or not?= I'm hearing that you want to control what we look at more closely.= p>
Rosemary Fei: (07:44) I believe that's why we were taken off the = list.
avri doria: (07:44) you were takne off the list? by whom?&n= bsp; why? I just assumed you all were stil lthere.
avri doria: (07:45) of course the lists are openninly archived an= d avaialble. to all.
Leon Sanchez (Co-Chair, ALAC): (07:45) @Rosemary these are two di= fferent lists. You weren't removed from the list. It's just the discussion = happened on a different list
Rosemary Fei: (07:45) Avri, we don't know. We just learned = today that we were taken off. We just thought it had gotten very quie= t.
Leon Sanchez (Co-Chair, ALAC): (07:45) @Avri the discussion happe= ned on the main list while the lawyers are subscribed to the legal sub-team= list only
Leon Sanchez (Co-Chair, ALAC): (07:46) @Rosemary just to be clear= nobody has taken off nobody from any list
Mark Carvell GAC - UK Govt: (07:46) The CCWG session is in = the GAC agenda for the Weds at 11.00-12.30.
Mathieu Weill, ccNSO, co-chair: (07:46) Thanks Mark !
P=C3=A4r Brumark (GAC Niue): (07:46) Thx!
James Bladel - GNSO: (07:46) Thanks.
Rudi Daniel: (07:46) thx
Mathieu Weill, ccNSO, co-chair: (07:46) Bye everyone !
Robin Gross [GNSO - NCSG]: (07:46) thanks, bye.
Michael Clark (Sidley Austin): (07:46) bye all
Leon Sanchez (Co-Chair, ALAC): (07:46) thanks everyone!
Rosemary Fei: (07:46) Thanks, All.