Page History
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Sub-Group Members: Beran Gillan, John Berryhill, Alan Greenberg, Athina Fragkouli, Avri Doria, Cheryl Landon-Orr, David McAuley, Edward Morris, Gary Campbell, Greg Shatan, Guru Acharya, Holly Gregory, Josh Hofheimer, Keith Drazek, Matthew Shears, Michael Clark, Par Brumark, Philip Corwin, Rosemary Fei, Rudi Daniel, Sabine Meyer, Samantha Eisner, Sharon Flanagan, Stephanie Petit, Steve DelBianco, Vivek Mohan, Vrikson Acosta (27)
Staff: Adam Peake, Alice Jansen, Brenda Brewer
Apologies:
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Transcript CCWG ACCT LEGAL SubTeam 8 April.doc
Transcript CCWG ACCT LEGAL SubTeam 8 April.pdf
Recording
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p5c6cyii81k/
The audio recording is available here: http://audio.icann.org/gnso/gnso-legal-subteam-08apr15-en.mp3
Agenda
1- Welcome & roll call (5 minutes)
2- Timeline and Methodology (15 minutes)
3- Review of Issues Arising from Written Advice (20 minutes)
3.a. Issues arising from mechanisms
4- Review of Issues Raised by CCWG Participants (20 minutes)
5- Next Steps (10 minutes)
6- AOB (10 minutes)
7- Adjourn
Notes
These high-level notes are designed to help you navigate through content of the call and do not substitute
in any way the transcript.
1.Welcome & Roll call
2. Timeline and Methodology (15 minutes)
Preliminary report on April 21. Less than 2 weeks for document to be produced. How can Counsel and the legal sub-team support the groups. How to best inform the lawyers of calls. With an eye to cost effective.
Friday 17, following the CCWG schedule of 14, 16 and early 17 April.
What other calls should legal be on? WP1 later today (April 8), Adler unable to join be Sidley will cover the call and do document review.
48 hours notice would be good, scoping the next 2 days ideal
Coordinate with the co-chairs and rapporteurs.
Suggest legal call on Apr 20 in addition to the 17th. And check with the co-chairs where outside legal advice might be needed on their schedule of calls.
Action: email co-chairs and rapporteurs to ask when they need lawyers on their calls. and any feedback, and to identify documents that might be needed for those calls
Stress Test team will becoming for legal advice on issues they have identified.
One person from the legal sub-team should join the calls where lawyers have been requested. Members will provide coverage.
3. Review of Issues Arising from Written Advice
Issues arising from the documents and what's being discussed in the WP teams
Amend the second hour agenda to inc issues they see in the mechanisms - addition to the agenda.
Takeaways from the advice: models that are looking good, those that might be relegated. Issues that need to be focused on, a triage.
Also look at the ARIN legal notes, particularly on designators. Also ask the lawyers to react to the memo.
The memo is from ARIN not the ASO. However ASO representatives discussed the proposal as it was developed, but the document put forward by ARIN
for the community's reference for work in WS1
Focus legal efforts of the next 10-12 days on WS1 issues.
Action: pass the ARIN legal memo to the lawyers ask for their consideration.
Binding nature of IRP my be an issue to focus in on.
4. Review of Issues Raised by CCWG Participants
Pedro da Silva and Eberhard Lisse.
Need to address issues that deal with WS1.
Dr. Lisse's questions not directly WS1. A centralize list of questions, and non-WS1 can be addressed after the public comment period. Other questions directly
address the Sidley and Adler documents, suggest asking the lawyers to respond directly to the questions posed.
Da Silva, about California law, asking for a direct response would be reasonable.
(Action: forward questions asked in response to the lawyer's questions to the respective firms. And forward other relevant WS1 questions to both firms.)
A Wiki page will be created listing questions, with action taken provided, i.e. forwarded to counsel or if not with the reasons why not.
Outside counsel join the call.
Want legal advice on calls when needed, but with adequate time to prepare. Proposing a 48-hour rule, unless some emergency matter.
How to best use legal advice, will coordinate with the co-chairs and rapporteurs. 48 hours if a new legal issues is short notice, but for previously seen
information should be adequate. Noting that lawyers on the team have different skills and not entirely interchangeable, but the benches are strong.
April 21 work product will be the CCWG's proposals. Based on the matrix sent to the legal teams. Recommendations on work stream 1 accountability mechanisms.
Action: To provide legal counsel with ToC for the public comment document , and tracking document of the progress of WP1, WP2 and the stress test WP.
Task to ask co-chairs and rapporteurs when the expect legal counsel to be needed.
Questions from Stress Test WP will submitted to legal counsel. The WP meets weekly, Wednesday at 11:00UTC.
Action: Staff/legal sub-team will give notice to counsel of when Stress Test WP needed.
WP1 questions will be discussed on the group's call later today (21:00– 23:00 UTC) Sidley will address at a high level on the WP1 call.
How powers are given to the community are important, but would be helpful to know the priorities for this powers, and the primary powers and mechanisms needed.
Helpful to understand if some powers are alternatives, or are all powers are wanted?
Counsel: If the CCWG comes with a set of specific requirements (to remove the board, to remove individual directors etc), then can give advice
Response: And this is where the WP1 seems to be at. Powers have been identified. Some draft mechanisms have been drawn up, but need advice on
whether those mechanisms are possible and if they are, can they do what the WP1 hopes they can do.
Legal sub-team will perform some triage on questions for outside counsel. More is needed on best mechanisms rather than outliers, but for CCWG to identify those.
* Issues arising from mechanisms
List of mechanisms sent outside counsel. Any comments on the mechanisms documents.:
Two firms cooperating. A response covering legal concerns and viability. Will provide feedback by the end of the week, and in one voice.
Wiki page will be created for questions from the community, the legal sub team will coordinate which are asked and all submit a memo to outside counsel.
Questions on the Sidley/Adler documents will be sent.
Questions received from the community include
Question about California incorporation.
A request for a multi-jurisdictional survey, which is too broad, but may ask if the lawyers know of any jurisdiction where ICANN functions can be better accomplished.
ARIN, the RIR for N America region, sent some legal advice the sub-group the outside counsel to consider, some informal response will be requested.
Questions can be seem by outside counsel as the come in, but not respond until a memo received from the legal sub-team
Not aware of another jurisdiction what would have greater benefit than California. But have not formally researcher this and the research would be a substantial exercise.
Questions will focus on work stream 1.
FAQ listing responses received will be created (future action)
whether intergovernmental organization and sovereign states can bring actions against ICANN in state and fed courts in the US, or whether other fora should
be utilized to bring their legal issues/action
Conclusion the CCWG reached on 31 March: "Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction
comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that
could not be achieved in WS1, the jurisdiction issue might be pursued within WS2."
Action Items
Action: email co-chairs and rapporteurs to ask when they need lawyers on their calls. and any feedback, and to identify documents that might be needed for those calls
Action: pass the ARIN legal memo to the lawyers ask for their consideration.
Action: forward questions asked in response to the lawyer's questions to the respective firms. And forward other relevant WS1 questions to both firms.
Action: To provide legal counsel with ToC for the public comment document , and tracking document of the progress of WP1, WP2 and the stress test WP.
Action: Staff/legal sub-team will give notice to counsel of when Stress Test WP needed.
* legal sub-group will send formal memorandum to initiate work on items received from CCWG
* legal sub-group will contact co-chair and rapporteurs, identify which calls should lawyers join, with any supporting documents
* send stress test request for legal advice.
Request, relative priority of questions: Yes, will provide prioritization.
Will send calendar invites to all lawyers, with links to relevant groups pages and meeting information
To co-chairs to ask for time on the agenda for next CCWG call April 14 12:00-14:00 UTC - CCWG, or an exceptional call, to allow outside legal counsel to level set., offer a presentation on the mechanisms being considered.
Legal presentation, 50-60 minutes required.
Action: contact co-chairs about legal counsel presentation at the next CCWG meeting, or an exceptional meeting?
Documents Presented
Legal Subt Drafts - http://tinyurl.com/kajxlc4
Chat Transcript
Brenda Brewer: (4/8/2015 08:32) Welcome to the Legal SubTeam call #10 on 8 April. Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards
Robin Gross [GNSO - NCSG]: (09:58) Morning!
Edward Morris: (09:58) Hello everybody
Athina Fragkouli (ASO): (10:00) hello
Sabine Meyer: (10:00) hello everyone!
David McAuley: (10:01) This brings up a good issue - our own timeline and intensive schedule
Robin Gross [GNSO - NCSG]: (10:02) but join us anyway
Cheryl Langdon-Orr: (10:03) Thank you Greg... obviously the formal note will come from the Chairs via staff as per the AI in the call that I just left ...
Brenda Brewer: (10:03) Adam has agenda. He will upload.
Philip Corwin: (10:03) Good day to all
Adam Peake: (10:03) Alice just uploaded
Brenda Brewer: (10:06) Adam please do roll call
Brenda Brewer: (10:07) I am not on phone line. apologies.
legal: (10:08) Rudi Daniel
legal: (10:08) excuse me ....error
Alan Greenberg: (10:09) You can change your "name" by editing info using pull-down at top right of attendee list.
Alan Greenberg: (10:10) Which I see you did!
Adam Peake: (10:11) Current timeline: https://community.icann.org/display/acctcrosscomm/Drafts+for+CCWG-Accountability
Adam Peake: (10:11) 7th cell down
David McAuley: (10:12) The table Brenda sent last night is good for this
Adam Peake: (10:12) I will look for calendar - and will share if available
Sabine Meyer: (10:12) so we might have a look a look at the table with all upcoming CCWG calls.
Sabine Meyer: (10:12) exactly.
Robin Gross [GNSO - NCSG]: (10:14) ouch for SF time!
Sabine Meyer: (10:15) 8 AM in Germany. Not really seeing the issue ;)
Robin Gross [GNSO - NCSG]: (10:15) 11am is ok for me
Robin Gross [GNSO - NCSG]: (10:15) that works for me.
David McAuley: (10:16) and tentative depending on how CCWG does
Robin Gross [GNSO - NCSG]: (10:17) Agree we should scope out our work for the next couple of weeks
Sabine Meyer: (10:20) maybe we could also ask the lawyers how they feel about that. I could imagine that some calls might be more confusing than helpful, just hypothetically speaking.
David McAuley: (10:20) good point Sabine
Adam Peake: (10:20) Coordinating with the co-chairs, but also asking the rapporteurs to anticipate their needs (as Jordan WP1 has) might be helpful.
Robin Gross [GNSO - NCSG]: (10:22) I agree we may need to schedule an extra call or two also.
David McAuley: (10:23) 20th makes sense
Athina Fragkouli (ASO): (10:23) agree
Athina Fragkouli (ASO): (10:26) very good point
Robin Gross [GNSO - NCSG]: (10:26) I'm on WP1 and WP2. But not WP Stresstests.
Edward Morris: (10:26) I'm on all three.
Athina Fragkouli (ASO): (10:26) I can be in the Stresstest WP
David McAuley: (10:27) great
David McAuley: (10:27) sounds like we are covered
Samantha Eisner: (10:28) Giving the lawyers an expectation of what they will be expected to do on the calls will also help them with the most efficient staffing
Sabine Meyer: (10:29) +1 Sam
Athina Fragkouli (ASO): (10:31) thank you
Athina Fragkouli (ASO): (10:31) yes
Pär Brumark (GAC Niue): (10:31) Yes
Edward Morris: (10:32) +1 Robin
Athina Fragkouli (ASO): (10:33) +1 Robin
Avri Doria: (10:34) Is that an ARIN proposal for ICANN, or an ASO proposal? it is interesting.
Avri Doria: (10:34) i did read it. just wondering how we should treat it.
Avri Doria: (10:35) if it is aan ARIN suggestion, it is intersting. If it is an ASO proposal we should forl it in to our work.
Avri Doria: (10:35) ... should fit it into ...
Robin Gross [GNSO - NCSG]: (10:37) I think we will need a combination of mechanisms. I don't think we will find a single mechanism that meets all of our goals.
Avri Doria: (10:37) Well they also indlue a necessary change to the Articles.
Keith Drazek: (10:38) I think a key question on the ARIN proposal is whether it gives the community the necessary powers we're looking for, perhaps compared/contrasted to other models (such as membership). Does it cover the "package" of accountability mechanisms we're looking for, or only a subset?
Robin Gross [GNSO - NCSG]: (10:39) I would say only a subset, Keith - removal of individual board and bylaws approval.
Avri Doria: (10:39) i tink it i s analogue to some of the other proposals on the table. so agree, only a subset.
Philip Corwin: (10:39) Adding on to Keith's comment, I found the ARIN comment useful on the subject of indivdiual or en masse removal of Board members, but don't see that as the full suite of desirable accountability measures
Robin Gross [GNSO - NCSG]: (10:40) I don't think we'll find a "magic bullet" that meets all our needs in a single mechanism.
Athina Fragkouli (ASO): (10:41) agree
Keith Drazek: (10:42) (and the NomCom)
Adam Peake: (10:44) Designator/Board removal: I believe WP1 will discuss removal of the board or individual members on their call later today. Lawyers will be on the call.
Adam Peake: (10:45) Link to the ARIN memo
Adam Peake: (10:45) http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150407/de2d2f36/ARINMemoonProposedICANNBylawsAmendments-0001.pdf
Samantha Eisner: (10:46) Contracts with whom? Doesn't that still raise the congnizable entity issue?
Samantha Eisner: (10:49) It's a question that needs to be addressed if we go down the contracting path
Robin Gross [GNSO - NCSG]: (10:50) yes, an unincorporated association. But this seems to be a speed bump - not a bar.
Athina Fragkouli (ASO): (10:53) thank you for forwarding these emails
Adam Peake: (10:55) Hi everyome, to let you know Holly has joined the call. Welcome Holly.
Edward Morris: (10:55) IMHO we need to focus on questions directly related to ongoing WS1 work. All of hesear
David McAuley: (10:55) agree w Athin a
Holly Gregory: (10:55) hi all. not yet phoned in
Edward Morris: (10:55) theseare interesting questions - but for another time.
Robin Gross [GNSO - NCSG]: (10:55) great suggestion - one place with all questions
Alan Greenberg: (10:57) Note top of the hour in 3 minutes.
Holly Gregory: (10:57) can I get a dial out 862 485 3215
Robin Gross [GNSO - NCSG]: (10:59) ok with me, Greg
Robin Gross [GNSO - NCSG]: (11:01) perhaps could reworded simply as "is there any other jurisdiction that would be better for this goal?"
Josh Hofheimer: (11:01) Good morning, waiting for the coordinator to join me to the conference
Michael Clark (Sidley Austin): (11:01) Still waiting for audio
Josh Hofheimer: (11:01) I am in
Robin Gross [GNSO - NCSG]: (11:02) Reason could be "out of scope"
Holly Gregory: (11:02) I need someone to dial me at 862 485 3215
David McAuley: (11:02) I think Athina's idea is a good one
Cheryl Langdon-Orr: (11:02) I will be dropping off this call at the top if this hour and will review the recording of the second hour with the Advisors when available...
Robin Gross [GNSO - NCSG]: (11:03) another reason could be "too expansive / ambigous"
Holly Gregory: (11:03) I'm on
Athina Fragkouli (ASO): (11:03) good idea
Robin Gross [GNSO - NCSG]: (11:03) Yes, and I suspect most questions will simply be passed on.
LEGAL: (11:04) Colleen Brown of Sidley signed in as Legal
Sabine Meyer: (11:04) I'd say that giving reasons for passing on questions would also help make decisions more transparent and also serve as a yardstick of sorts.
Gary Campbell: (11:04) I am not legal
Robin Gross [GNSO - NCSG]: (11:04) Agree, Sabine.
Vivek Mohan: (11:05) Vivek Mohan of Sidley is also present
Rosemary Fei: (11:05) Hello, everyone
Keith Drazek: (11:06) mute phones/computers please
Cheryl Langdon-Orr: (11:08) Cheryl and becky are the other rappouters @Greg
Rosemary Fei: (11:08) If analysis or research needed, sometimes 48 hours not enough
Rosemary Fei: (11:09) I cannot make the call later today, unfortunately
Robin Gross [GNSO - NCSG]: (11:09) We can try to schedule them sooner than 48 hours. We will have our group's schedule for the next 2 weeks shortly. Mostly done now.
Greg Shatan: (11:09) Thank you CLO
Robin Gross [GNSO - NCSG]: (11:10) We are putting out our initial outline for recommendations in Work Stream 1 (in my view).
Athina Fragkouli (ASO): (11:12) This is my understanding too
Josh Hofheimer: (11:12) Thanks David
Josh Hofheimer: (11:13) Yes, please do send us the draft/template of the report.
Robin Gross [GNSO - NCSG]: (11:13) and then the public will comment on it. Tell us we are all wrong or we haven't thought of this, etc. And then we'll refine our proposoal in response to the comments.
Vrikson Acosta: (11:13) hi everyone :)
David McAuley: (11:13) Thanks CLO, good points
Rosemary Fei: (11:15) For clarification of earlier point, I assume the 48 hours will run from the time the lawyers are sent notice, not from when someone has decided to schedule a call
Sabine Meyer: (11:16) would the template we're trying to locate the one named "Proposed Structure of Public Comment Report"? The wiki link to that is the following:
Sabine Meyer: (11:16) https://community.icann.org/download/attachments/50823981/Proposed%20Structure%20of%20Public%20Comment%20Report.docx?version=2&modificationDate=1427017501000&api=v2
David McAuley: (11:18) it looks like it Sabine, but not sure if that is the one Mathieu put up on the screen most recently
Cheryl Langdon-Orr: (11:18) Greg you will also have our meeting transcript in the next 12 hrs as well...
Sabine Meyer: (11:18) I see, David. It's dated March 9 on the wiki...
David McAuley: (11:19) sounds like i then
David McAuley: (11:19) like it
Edward Morris: (11:20) Next week 11 UTC
Edward Morris: (11:20) WWednesday
Rosemary Fei: (11:21) So you'd want answers by next Wednesday?
Steve DelBianco [GNSO - CSG]: (11:21) Our Stress Test legal question will inform WP1 whether they may need to develop an accountability mechanism further
Robin Gross [GNSO - NCSG]: (11:21) Rosemary, I would expect that the lawyers are contacted when the meeting is scheduled. So that should almost always be more than 48 hours in advance.
Josh Hofheimer: (11:21) 11:00 UTC is 4 a.m. pacific, correct?
Rosemary Fei: (11:21) When do you need answers to the questions that we got yesterday?
Cheryl Langdon-Orr: (11:22) Were not requesting Legal to join our calls (at this stage) but rather we have posed some fresh questions they will come via memorandum with refrence materials...
Josh Hofheimer: (11:23) Sidley will be on the WP1 call, and we will be able to share some thoughts in response, though not in writing beforehand
David McAuley: (11:23) exactly Greg
Robin Gross [GNSO - NCSG]: (11:25) CLO: There was a suggestion in the first hour of this legal sub-team call that we wanted the lawyers to join all of our calls until the 20th, so they understand the details of what we are doing in these subteams.
Steve DelBianco [GNSO - CSG]: (11:25) THese are a package of community powers. We need the package, and don't see a need to prioritize the powers
Edward Morris: (11:25) +1 Steve
Rosemary Fei: (11:26) All powers, but not all mechanisms, certainly, right?
Robin Gross [GNSO - NCSG]: (11:27) right, Rosemary. Mechanisms are just means of achieving the desired powers.
Edward Morris: (11:27) Right Rosemary.
Robin Gross [GNSO - NCSG]: (11:28) So we won't want ALL the mechanisms. Just the best one to achieve the desired power.
Cheryl Langdon-Orr: (11:28) I@Robyn I took that to be more to the WP1/2 and Plenary calls @Robyn our St's in the main are being run through in an iterative finction and are of ciurse deoendant on outcomes (mechanisms and powers) from the other Work Parties ... However for once at todays meeting we found the need for specific advice in writing will be fine...
Rosemary Fei: (11:28) +1 Holly
Rosemary Fei: (11:29) The problem with not letting us advise on the "best mechanisms" to get the requisite powers is that we're spending a huge about of time on alternatives you've asked us to comment on that we don't think will work best.
Robin Gross [GNSO - NCSG]: (11:30) Very helplful to hear, Rosemary. So now we need to start the triage process. What can we take off the table. What should we focus on?
Rosemary Fei: (11:30) Membership, possibly designator
Alan Greenberg: (11:30) I think wwhat Holly is describing is exactly what we are looking for. My only caveat is that as these proporals are firming up, they need to be passed by us to do a sanity check that they will not violate some overall principle or intent.
Robin Gross [GNSO - NCSG]: (11:31) Those are to focus on or take off the table?
Holly Gregory: (11:31) +1
Rosemary Fei: (11:31) And will need contract layer, to create enforcement mechanisms not available under CA corporate law
Stephanie Petit: (11:31) Robin, I think Rosemary means to focus on.
Rosemary Fei: (11:31) Focus on, Robin.
Josh Hofheimer: (11:31) Correct, to focus on
Vrikson Acosta: (11:32) All calendar changes and additions should be included in the ICANN community calendar. That t is because there are too many changes and new meetings planned
David McAuley: (11:32) Triage and focus on work stream one
Rosemary Fei: (11:33) You hired experts -- let us give you expert advice. We really want to do that!
Holly Gregory: (11:34) designator vs member and then recall of board and directors and approval of by laws seem like priorities
Alan Greenberg: (11:34) One of the reality of MSism is that many view themselves as "semi-experts" and love tinkering. You are dealing with the implications of that.
Avri Doria: (11:34) Isn't it the legal team's job to educate the rest of the CCWG?
David McAuley: (11:35) also restrictions on bylaws changes, review of certain matters like budget, and effective, substantive IRP
Avri Doria: (11:36) ie. isn't this team got the job of explaining what it is the legal experts send us.
Avri Doria: (11:36) wishful thinking.
Stephanie Petit: (11:37) Certainly we aim to write for non-lawyers to understand.
Robin Gross [GNSO - NCSG]: (11:37) lawyer translation services ;-)
David McAuley: (11:37) agree Gerg, we will have a role to CCWG
David McAuley: (11:37) Greg, that is
Josh Hofheimer: (11:37) It is certainly our goal to produce work product that is easily digestible by lawyers and non-lawers alike.
Holly Gregory: (11:37) we will work harder Avri at responding in clear and straightforward terms
Rosemary Fei: (11:37) The questions I've seen indicate that a background educational session or two -- pure ed, not giving advice -- might be helpful to some of the questioners
Alan Greenberg: (11:37) Have to leave..
Avri Doria: (11:37) i personally think you wrote well for this non-expert. i thought i understood until i read some of the questions.
Stephanie Petit: (11:38) Thank you. We will work to write even more clearly.
Rosemary Fei: (11:39) +1 Holly
Stephanie Petit: (11:39) Agree with HOlly's timing.
Josh Hofheimer: (11:39) +1
Michael Clark (Sidley Austin): (11:39) agreed
Avri Doria: (11:40) maybe this group can even turn it into a faq, since we know the questions will be asked again in myriad ways.
Robin Gross [GNSO - NCSG]: (11:40) good idea, Avri.
Holly Gregory: (11:40) we are awaiting indications of formal request before addressing
Rosemary Fei: (11:41) Happy to respond to Samantha's questions.
Josh Hofheimer: (11:41) Please refer the S.Eisner questions directly to Sidley and Adler
Rosemary Fei: (11:41) Also happy to respond to Pedro's questions
David McAuley: (11:42) Greg, I also sent some Q's on April 1 - will go find them and put on wike we set up (I think Leon may have done this already)
David McAuley: (11:42) wike, that is
Avri Doria: (11:42) didn't they already sort of answer that any other jurisdiction question.
Holly Gregory: (11:42) we can go on record that at this time we
Avri Doria: (11:43) They went so far ass to suggest Article and Bylaws changes that could be reviewed.
Rosemary Fei: (11:43) Do you want a response to the Caplin Drysdale memo?
Robin Gross [GNSO - NCSG]: (11:46) I think it would also be helpful to hear more about the issue of spilling the whole board. The Adler memo seemed to discourage that power.
Rosemary Fei: (11:47) Whether something can be accomplished legally is entirely different from whether it's a good idea. Most recently, we're being asked about legality only, not adviseability.
David McAuley: (11:47) agree w Holly & Greg on questions for work
Josh Hofheimer: (11:50) +1 @Rosemary. At some point the CCWG will also want to consider whether the proposed powers are a good idea, considering both the substance of the proposed power and the mechanism that would be requried to implement it. Your outside counsel can help you consider both those issues.
Samantha Eisner: (11:51) @Josh - would that include analysis of costs/benefits/comparisons between models as well as assessments of issues of capture within?
Holly Gregory: (11:51) +1 Josh and Rosemary
Holly Gregory: (11:51) it couldSamantha
Avri Doria: (11:51) It is a question that som ein the GAc and other states are asking
Rosemary Fei: (11:52) Samantha, that's a combined legal/factual analysis. We can provide the legal; someone from the client would have to provide the other side of the analysis
Samantha Eisner: (11:53) Avri, is your question who can sue ICANN where?
Edward Morris: (11:53) We do have an international legal advisor as well to utilize.
Avri Doria: (11:53) i was not thinking so far as suit, but the question i have heard asked, and has been assked of me, is how a soverieng states can raise a legal issue.
Avri Doria: (11:54) i think WS1 has to have a lcue as to how this can be answered.
Samantha Eisner: (11:54) If there could be examples of what other legal issues are of concern, that might be helpful
Samantha Eisner: (11:54) prior to initiating an intensive international review
Holly Gregory: (11:55) please send us a formal request on that issue ASAP Greg so we can get moving
Alice Jansen: (11:55) With respect to jurisdiction, please refer to the conclusion the CCWG reached on 31 March: "Still in agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction issue might be pursued within WS2."
Sabine Meyer: (11:56) Thank you, Alice.
Robin Gross [GNSO - NCSG]: (11:56) Agree with David.
Samantha Eisner: (11:56) Greg, should we also ask the Int'l law advisor to the CCWG to weigh in first when we have a formal question, prior to incurring the types of legal fees that a question such as this could pose?
Rosemary Fei: (11:56) I would think that the NTIA contract change does not affect sovereign rights -- either they can take action or not now, and I don't see why that would change
Pär Brumark (GAC Niue): (11:57) Agree with David
Samantha Eisner: (11:57) Rosemary, agree that the change in the NTIA contract does not impact that question
Sabine Meyer: (11:57) exactly, Rosemary.
Josh Hofheimer: (11:57) Thanks Greg for the clarification. And I echo Holly's request for a formal memo and set of questions. We will be able to jump on it, and appreciate that it is not targeted for April 20 to have a fulll response.
Rosemary Fei: (11:58) Please indicate relative priority of new questions relative to old questions
Josh Hofheimer: (11:58) quick process question
Sabine Meyer: (12:00) Adam, I think Alice's quote of the CCWG conclusion from March 31st is worth adding to the notes.
Sabine Meyer: (12:01) thank you!
Robin Gross [GNSO - NCSG]: (12:02) Let's get that memo - what is recommended to focus on and what can we take off the table for mechanisms?
Rosemary Fei: (12:02) Sabine, I note that quote says look to other jurisdictions only if existing jurisdiction doesn't work. Laws of state of incorporation do not affect where ICANN can be sued, or for what, or by whom -- doesn't matter where incorporated.
Keith Drazek: (12:03) I think Rosemary's comments are spot on. We need to advance this work to start looking at the "best" options.
Rosemary Fei: (12:04) That's the "holistic" approach that was deferred, but which you hear both your law firms advocating for
Athina Fragkouli (ASO): (12:04) I would find it indeed usefulwith an explanation on specific suggestions
Robin Gross [GNSO - NCSG]: (12:05) tue 14 march at 4am in california
Keith Drazek: (12:05) I think such a presentation/education would be very constructive.
Robin Gross [GNSO - NCSG]: (12:05) agree completely, Keith.
Robin Gross [GNSO - NCSG]: (12:05) maybe we do it with us on our next call?
David McAuley: (12:05) We do hear that Rosemary - we are close to finishing going through necessary stage and allowing community to weigh in, expect you will get that kind of query in short order
Robin Gross [GNSO - NCSG]: (12:06) could we do this Friday?
Robin Gross [GNSO - NCSG]: (12:06) Or Monday?
David McAuley: (12:06) there are plenty of CCWG calles next week
Holly Gregory: (12:06) Friday would be rough on our side
Rosemary Fei: (12:07) I suggest we not do it until you have received our responses to Request #2, and had time to absorb them
Rosemary Fei: (12:07) I think those responses will be helpful to get everyone ready to hear the holistic presentation
David McAuley: (12:08) Holly - time estimate on this
Robin Gross [GNSO - NCSG]: (12:08) this sounds like a good approach, Rosemary
Robin Gross [GNSO - NCSG]: (12:09) weekend reading :-)
David McAuley: (12:10) good point here CLO
Robin Gross [GNSO - NCSG]: (12:10) we need a lot of time because there is going to be a lot of questions.
Edward Morris: (12:11) Agreed Robin. This meeting is key to a lot of what we're trying to do.
Rosemary Fei: (12:11) +1 Robin -- the questions will be what takek a lot of time
Robin Gross [GNSO - NCSG]: (12:11) right - this is a minimum of an hour
Sabine Meyer: (12:12) my apologies, but I need to leave now. big thanks to all of you!
Robin Gross [GNSO - NCSG]: (12:13) Agreed, Greg.
David McAuley: (12:13) we have calls Thursday & Friday next week as I recall
David McAuley: (12:14) Thanks Greg
Cheryl Langdon-Orr: (12:14) Good call Thank you Greg and everyone... Bye (for now)
Robin Gross [GNSO - NCSG]: (12:14) Thanks, Greg, independent lawyers, and all!
Michael Clark (Sidley Austin): (12:14) Thanks all
Rosemary Fei: (12:15) Thanks, everyone.
Athina Fragkouli (ASO): (12:15) thank you , Greg and all
Greg Shatan: (12:15) Thank you, everybody!
Holly Gregory: (12:15) bye all!
