Page History
Attendees:
Members: Adam Alan Greenberg, Becky Burr, Cheryl Langdon Orr, Eberhart Lisse, Fiona Asonga, Giovanni Seppia, Izumi Okutani, James Bladel, Jordan Carter, Jorge Villa, Julia Wolman, Leon Sanchez, Mathieu Weill, Olga Calavali, Par Brumark, Robin Gross, Roelof Meijer, Samantha Eisner, Sebastien Bachollet, Steve DelBianco, Thomas Rickert (21)
Participants: Akinbo Adebunmi, Kavouss Arasteh, Avri Doria, Bob Takacs, David McAuley, Edward Morris, Elise Lindeberg, Farzaneh Badii, Finn Petersen, Greg Shatan, Jonathan Zuck, Jorge Cancio, Keith Drazek, Kevin Espinola, Malcolm Hutty, Petro Ivo Silva, Phil Buckingham, Sivasubramania Muthusamy (18)
Legal Counsel: Holly Gregory, Josh Hofheimer, Michael Clark, Rosemary Fei, Stephanie Petit, Steven Chiodini (6)
Staff: Adam Peake, Hillary Jett, Kim Carlson
Apologies: Martin Boyle, Suzanne Radell,
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Transcript CCWG ACCT Meeting #25 - 2 June.doc
Transcript CCWG ACCT Meeting #25 - 2 June.pdf
Recording
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p4qwq7dutg5/
The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-02jun15-en.mp3
Proposed Agenda
1. Welcome, Roll Call & SOI
2. CCWG Unincorporated Associations
3. Follow up on input received regarding membership
4. Work Plan after Buenos Aires
5. A.O.B
Notes
CCWG ACCT - Call # 35 – 2 June 2015.
LINKS
Public Comment Announcement: https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-2015-05-04-en
AGENDA:
1. Welcome, Roll Call & SOI
2. CCWG Unincorporated Associations
3. Follow up on input received regarding membership
4. Work Plan after Buenos Aires
5. A.O.B
NOTES & ACTION ITEMS:
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 & SOI
Sébastien Bachollet, call only
2. CCWG Unincorporated Associations
Sample article of association
An example of how an SO/AC might create articles when forming and unincorporated association. Just 3 or 4 sections in these articles
Not as complex as some have thought. Advised by counsel that there is not much more than what you see on your screen. And note that this is only to constitute the legal vehicle, the powers are exercised by the SO/AC
Q. Why are we just focusing on one solution? And will we have other solutions presented in the same way.
co-chair - don't feel we are pushing this unduly. It is proposed as the main proposal in our recommendations
"member" is one possible solution. And designator was discussed, and that there were weaknesses with that proposal in 2 areas: on budget and strat/ops plan.
Q. Some SO/AC may wish not to be a member. What role do they have in the future arrangements? Can they participate? And the role of an AC that does not appoint a director, do they have a role in the recall of the whole board. Also the issues around the bylaws changes.
A. Many of these issues have been answered. And in email since the last call.
Issues around the binding nature of the IRP. And misunderstanding over the IRP in making its decisions.
Jorge's question in chat: there is a recurring theme I guess for different stakeholders, including governments: what does it mean from a liability point of view to be a member of such an unincorporated association? in detail? Asking Counsel to answer later in the call
The situation of some SO/AC creating a UA and some would not, if public comment confirms this situation, then we will consider this scenario, and will work on new drafts and proposals, But for now we do not want to duplicate work of the public comment.
The desire for enforceability has moved us to consider the member structure, as this is the only way to provide such enforceability.
Most stress tests will fail if we do not have enforceable powers.
Are we going to fast in thinking the membership is the only way for achieve the solutions we want. A time will come for a step back and consider if this is really what we want. Could the ICANN board go haywire and ignore its own bylaws is just to extreme a scenario. And there are entities, such as ccTLD, with relationships with ICANN that are legal entities and they could take ICANN to court. We may be over complicating this.
There is a need to reconsider.
Issue of are we looking a member of designator model. Issue of UA and how they fit with that. And the issue of enforceability. Regarding enforceability, there is one in place now, it is with NTIA. Need to consider if the transition can go forward without that enforceability. DNS too important for an arrangement based on goodwill
For both the member or designator models, they do need to be legal persons, and that is where the UA come in.
These UA, as we see from the articles on screen, these are extensions of the SO/AC and are simple to form.
The proposal is about giving us enforceable powers. We are no trying to build a system that resorts to the courts. That rights are enforceable in law is what we have today, part of the status quo.
It's not that UA are complicated to create. But it is how they fit with ICANN. ALAC does not see the need for the level of enforceability being suggested. Don't see the NTIA contract as ever having that role in enforceability. Might not be able to overrule the board, but we will be able to remove them. Removal of directors, some or all, are powerful accountability mechanisms. Not clear we need other mechanisms.
Without the ability to enforce the right to remove directors, then the power is weak.
An important discussion. Different views on the options. Public comment will help us understand which options have traction, and where there are problems. Clearly the UA path needs more work. But it is the option that our external advice says is the most promising. If we reject this option then need to answer why.
Keep scenarios open and learn from the public comment.
Need to respect everyone's opinions. If we seek legal advice, we will get legal solutions. Do we need the member structure to get the legal enforcement that we need?
Perhaps public comment will provide a mixed response on our solutions or even new options. We should listen to other solutions. Remember that we the community select the board.
Legal consel: Fundamental discussion: early there was clear consensus that the status quo needed improvement and that the ICANN board needed to be more accountable to the community. As external legal counsel we looked at the legal lens, if things go fundamentally wrong then you need enforceability. Tell us what you want to accomplish, and we will try to help you accomplish that, with pros and cons, from an enforceability perspective. And you can go back, and rely on trust. But while today you have a board selected by the community, there is a lack of trust in that board. And the question we hear from you is how to fix that?
Selecting and removing directors is a simple accountability mechanism. But of you want to enforce that, there must be some legal personhood, an individual, a UA, a partnership, etc.
What do you want to accomplish? If you agree on that, then we find solutions. Might need to rethink goals. Membership was a simple way to do what we heard you wanted to achieve.
If this is problem now we come to implementation, then we need to re-think.
If you want less enforceability, then there will be more options. What level or trust vs what level of enforceability? Is reliance on who is on the board and changing that what you need, or do you want more. This is the tipping point for designators and members. We can achieve the former through contract.
Court is an unusual occurrence. Very unusual to take as a last resort.
It's CCWG's choice if the backstop of court is needed, as a stick. Do you want the power to remove directors, or do you want more? Or is trust enough? (end legal counsel)
Cannot imagine a scenarios where if we have in the bylaws to remove the directors. And pre-signed letters from the directors saying they will resign under certain criteria. Cannot imaging them not resigning when the criteria are met and community demands.
Becky, slide presentation.
Dispute resolution - some high level findings. What are we talking about when we talk about litigation. The rights that members of a public benefit limited corporation have. To enforce fiduciary obligations. But not taken to court for a whole range of issues. These are limited.
Can we force the first step of going to dispute resolution, yes, the courts can provide this.
If it is the communities wish then we can turn to our international arbitration rather than to a California court.
One member cannot bring and IRP. Cannot bring challenges unless you are involved in the process that led up to the disagreement. And a bond.
Will a CA court follow an IRP or try to second guess. Courts have been very differential to IRP decisions.
Yes, we can avoid having CA courts solve disputes so long as we give people real rights in other processes.
Need to descried what we want to achieve. And the stress test the scenarios.
A courts will not do crazy things and enforce their will on the ICANN community
To the extent that the bylaws provide for a review for people materially harmed by ICANN action/inaction. Those affected parties have the rights under the bylaws to seek and IRP. If the question is how do we prevent an endless cycle of IRPs, this is really a separate question. Need a balance between access and preventing abuse.
When we hear about endless litigation, what they assume is the board might be lawless and refuse to abide by its obligations. But this an unlikely scenario, and rules and powers will reduce the likelihood of dispute.
Legal counsel. This is not new research. Happy to provide if requested.
4. Work Plan after Buenos Aires
It will he a new time for our work in the next few days. Public comment ends tomorrow. And will see the populated public comment tool by the weekend and WP will begin work.
In BA need frank discussion with the community. About agreement, disagreement and areas on misunderstanding. Our goal is to submit to the SO/AC in Dublin, they need 15 days prior to review. We need a 40 day public comment. We need to review as a whole group the outcome of public comment and from BA. And that is why we are considering a meeting in July.
The chairs suggest a F2F meeting rather than remote intense work days. But that not off the table. Hence the doodle pool. With 2 favorable dates emerging
But we do need to make arrangements quickly. And consider conflicts with other meetings such as IGF USA and IETF.
F2F or intense online work days: F2F felt to be more productive.
Eberhard. 3 questions add to the public comment period. Why?
Because of a drafting omission. The questions are in the proposal, but not other places. The public comment page has been updated. We will ask those who have submitted to comment already if they need to review.
END
Action Items
Documents Presented
Chat Transcript
Kimberly Carlson: (6/2/2015 06:30) Welcome to CCWG Accountability Meeting #35 on 2 June! 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
Rosemary Fei: (12:57) Hello, everyone
Thomas Rickert: (12:58) Hi all!
Pär Brumark (GAC Niue): (12:59) Hi!
arasteh: (12:59) HI EVERY BODY
Mathieu Weill, ccNSO, co-chair: (13:00) Hello all
Becky Burr: (13:00) hello
Pedro Ivo Silva [GAC Brasil]: (13:00) Hi all!
FIONA ASONGA (ASO): (13:01) Hallo Everyone
arasteh: (13:01) I HAVE SOME FUNDAMENTAL QUESTIONS
Jonathan Zuck (IPC): (13:01) hello hello
Leon Sanchez (Co-Chair, ALAC): (13:01) Thank you Kavouss
jordan Carter (.nz, ccTLD member): (13:01) Morning
arasteh: (13:02) ANSWER TOMY QUESTIONS NEEDS TO BE PROVIDED IN WRITTEWN
arasteh: (13:02) These are legal questions
jorge cancio (GAC - Switzerland): (13:03) hello
Adam Peake: (13:05) you should have scroll control
Thomas Rickert: (13:05) Kavouss, did you see the answers to your questions we provided by e-mail?
Cheryl Langdon-Orr: (13:05) they are up
F Badii: (13:05) yes
Pär Brumark (GAC Niue): (13:05) Yes!
Thomas Rickert: (13:05) If you have new questions, please also send them to us by e-mail so we can make sure there is no ambiguity.
Robin Gross [GNSO - NCSG]: (13:05) I see the Articles
Eberhard Lisse [.NA ccTLD Manager]: (13:06) so do i
Holly Gregory: (13:06) hello everybody
Stephanie Petit (Adler & Colvin): (13:06) Greetings
Cheryl Langdon-Orr: (13:06) Léon's AC might have frozen
arasteh: (13:06) We have seen these several weeks ago .
arasteh: (13:06) They are not new
Mathieu Weill, ccNSO, co-chair: (13:06) @Kavouss: we have your questions. Just need a little discussion but you're touching on core aspects for our further work
Rosemary Fei: (13:07) There are changes from yesterday in the Governance/Powers section.
jordan Carter (.nz, ccTLD member): (13:07) Kavouss: they are amended, please look at the governance and powers section
Sébastien (ALAC): (13:07) Hello, Can we have the same exemple for the other solution we put in the report?
Mathieu Weill, ccNSO, co-chair: (13:07) which one Sébastien ?
Akinbo A. A. Cornerstone: (13:07) Hi Everyone.
Keith Drazek: (13:09) What other solutions, Sebastien?
Jonathan Zuck (IPC): (13:10) delegators? I thought we couldn't get the authority we needed with that.
Mathieu Weill, ccNSO, co-chair: (13:10) @Sebastien : are you talking about designators ? About "inside Bylaw" approach ?
Becky Burr: (13:10) I think we do need to present the other approaches (designator model and depend on the kindness of strangers model) as well, but I don't think there is a conspiracy going on Sebastian
Stephanie Petit (Adler & Colvin): (13:11) Jonathan, your recollection is correct in that the designator structure allowed some but not all of the desired powers.
Cheryl Langdon-Orr: (13:11) agree @becky
jordan Carter (.nz, ccTLD member): (13:11) Designators also need legal persons
jordan Carter (.nz, ccTLD member): (13:11) don't they?
Greg Shatan: (13:12) Jordan, that is my understanding.
Becky Burr: (13:12) hybrid model Kavouss
Rosemary Fei: (13:12) Counsel advises that designators be legal persons, in order to enforce their rights as designators.
jordan Carter (.nz, ccTLD member): (13:12) And how many times do we have to say that NOBODY HAS TO JOIN THESE UAs to exercise the powers contemplated in the report.
jorge cancio (GAC - Switzerland): (13:12) Hi all: there is a recurring theme I guess for different stakeholders, including governments: what does it mean from a liability point of view to be a member of such an unincorporated association? in detail?
Jonathan Zuck (IPC): (13:13) perhaps one more time @Jordan
Jonathan Zuck (IPC): (13:13) ;)
jorge cancio (GAC - Switzerland): (13:14) or as I put more tha two months ago: "On the second question I think that it is still unclear where the limits are crossed as to the liability of members of future “community empowered structures” or as was initially formulated: “the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.” "
jordan Carter (.nz, ccTLD member): (13:14) Jorge: Counsel have already answered the question re liability.
Sébastien (ALAC): (13:15) @Mathieu, yes designators and henancement of the current situation
Mathieu Weill, ccNSO, co-chair: (13:15) @designators also need UAs or equivalent
F Badii: (13:15) Wait, why do we have to always presume that "if ONE of the ACs didnt want to become a member" and then discuss the hupothethical scenario? cant we just ask them ? Is that too simplistic? We have been presuming all the time ...
Mathieu Weill, ccNSO, co-chair: (13:16) enhancement of current situation does not need specific documents but we are trying to assess stress tests against this scenario
Stephanie Petit (Adler & Colvin): (13:17) @Jorge, we believe there is no additional liability for a participant in the unincorporated association.
F Badii: (13:17) all the questions that were raised by Mr. Arasteh were answered! maybe we can compile these answers
jorge cancio (GAC - Switzerland): (13:17) @jordan: I do not think the answer is complete, when we are talking about such a delicate issue
jordan Carter (.nz, ccTLD member): (13:17) Jorge: but it isn't delicate.
jordan Carter (.nz, ccTLD member): (13:17) Members accrue no liability from their acts as members.
Avri Doria: (13:17) i do not beleie that Kavouss's question has been coherently and completely answered.
jordan Carter (.nz, ccTLD member): (13:17) That would apply to the UAs acting as ICANN members, or the members of the UAs (and almost nobody needs to be "members" of the UAs.
jordan Carter (.nz, ccTLD member): (13:18) Counsel have set this out in crystal clarity more than once
F Badii: (13:18) I agree Jordan
Akinbo A. A. Cornerstone (.ng, ccTLD Member): (13:18) Issues concerning SO/ACs refusal to be members?
Akinbo A. A. Cornerstone (.ng, ccTLD Member): (13:18) Budget Issues?
Avri Doria: (13:19) Jordan, perhaps we are not all staring through the same colored crystal.
Robin Gross [GNSO - NCSG]: (13:19) Flexibility in enforcement in 2 of the 6 desired community powers, coupled with the additional enhancements provided for by CCWG, may be enough (and a compromise) that the empowered designator power provides. We should explore that option.
jorge cancio (GAC - Switzerland): (13:19) I guess there is a difference between being just a participating Government in the GAC (which has no legal personality) and being a governmental member in a legal person, acting validly under californian law
jorge cancio (GAC - Switzerland): (13:20) that difference in rights, obligations and risks/liabilities has to be clearly put black on white if we are to gain acceptance and avoid grey areas
David McAuley (RySG): (13:20) @Mathieu, F. Badii had a good suggestion on compiling (mapping?) legal Q’s + A’s already addressed.
James Bladel - GNSO: (13:20) Years
jorge cancio (GAC - Switzerland): (13:21) otherwise each and every country may will have to do that legal assessment under californian law by itself with costs, practical implications etc
jordan Carter (.nz, ccTLD member): (13:21) Jorge: that has been done. The answer is: no liability.
jordan Carter (.nz, ccTLD member): (13:21) I am not sure what is clearer than that.
Mathieu Weill, ccNSO, co-chair: (13:21) Here is what we have to recap legal advice: https://community.icann.org/pages/viewpage.action?pageId=52890082
jordan Carter (.nz, ccTLD member): (13:22) because Jorge: governments in the GAC, or ccTLDs in the ccNSO, do NOT have to join the UA
jorge cancio (GAC - Switzerland): (13:22) what if you want to join the UA?
jorge cancio (GAC - Switzerland): (13:22) that is the question
jordan Carter (.nz, ccTLD member): (13:22) the UAs do what they are told by their SO or AC
jordan Carter (.nz, ccTLD member): (13:22) if you join it, youhave no liability as a member.
Mathieu Weill, ccNSO, co-chair: (13:22) @Jorge : I understand that doies NOT increase liability.
jordan Carter (.nz, ccTLD member): (13:23) joining it does not benefit you in any way
jordan Carter (.nz, ccTLD member): (13:23) not joining it does not disadvantage you in any way
Jonathan Zuck (IPC): (13:23) +1 Jordan
Leon Sanchez (Co-Chair, ALAC): (13:24) @Jorge, joining only enables legal personhood fo the SO/AC to enforce rights and excercise powers
Mathieu Weill, ccNSO, co-chair: (13:24) JOrge : here is the legal advice we have :
Mathieu Weill, ccNSO, co-chair: (13:24) Question: Does participation of an organization (such as a ccTLD manager) into suchan unincorporated SO/AC extend the possibilities that it be sued in the US?Response: If an organization which is a current participant in ICANN’s governance throughan SO/AC also participates in that SO/AC’s unincorporated association, it will not expose theorganization to any greater liability than it already has as a participant in ICANN, as discussedfurther below in the last question. ICANN is a nonprofit public benefit corporation and, underCalifornia law, as well as the ICANN bylaws, participants in the governance of ICANNgenerally would be indemnified by ICANN from liability. The California Corporations Codeexpressly provides that members of a nonprofit unincorporated association are not liable for theobligations of the association. In addition, it would also be possible for ICANN to continue toprovide indemnification for participants in the unincorporated associations that are ICANN’svolunteers or otherwise particip
jorge cancio (GAC - Switzerland): (13:24) I fear that it is not being understood that there is not enough clarity on this specific issue - and this may have effects
jordan Carter (.nz, ccTLD member): (13:24) the compilation of questions might work
Mathieu Weill, ccNSO, co-chair: (13:24) page 3 of https://community.icann.org/download/attachments/52890082/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2
Mathieu Weill, ccNSO, co-chair: (13:25) @Jorge: but maybe we don't get your question right
Cheryl Langdon-Orr: (13:26) @Roelof I tend to agree with you
Becky Burr: (13:26) Roelof, disagree Without a membership structure, it is illegal for the Board to abide by the Bylaws with respect to community powers unless and until it has concluded in a particular case that such deference is consistent with its fiduciary duties. What the membership structure does is allocate to the community some of the authority to determine what is or is not consistent with its fiduciary duties (Note, I accept and embrace Steve Crocker’s characterization of fiduciary duties)
Rosemary Fei: (13:26) Removal of directors, and removal of entire board, are powerful accountability measures, and generally would not require resort to a court to effect under the Bylaws.
jorge cancio (GAC - Switzerland): (13:27) There is also a different ange for governmental representatives - nonetheless if it is this clear I think it would be useful to create a specific information package on this issue and provide it to the community
Mathieu Weill, ccNSO, co-chair: (13:28) @Jorge : I understand there is another angle for Govts, because of sovereignty issues. But that is a different question
Jonathan Zuck (IPC): (13:28) what?!
jorge cancio (GAC - Switzerland): (13:28) that is a different question, yes, but if you want Govts on board you have to consider it...
Mathieu Weill, ccNSO, co-chair: (13:29) @Jorge we are nit speaking iof Govts on Board are we ?
jorge cancio (GAC - Switzerland): (13:29) and I'm thinking out loud
Pedro Ivo Silva [GAC Brasil]: (13:29) @Mathieu: That may be a different question, but is an essential one
jorge cancio (GAC - Switzerland): (13:29) not on the Board but on board of this structural change
Becky Burr: (13:30) yes jordan
Mathieu Weill, ccNSO, co-chair: (13:30) @Jorge it has also been cleared that the community powers do not lead to fiduciary responsibilities
F Badii: (13:30) But why ? I didnt understand Sebastian why this solution is not good. What are the other solutions ? We have the designator model, we could work on that, but we cannot rule out one solution alltogether
Keith Drazek: (13:30) According to our legal counsel, the membership model is the BEST solution. If anyone has a better alternative that secures the same powers, please suggest it and be specific.
Roelof Meijer (SIDN, ccNSO): (13:32) @Jordan: if I don't want a legally enforcable model I do not want the transition to happen?? Sorry, that's bullshit and you know it
F Badii: (13:32) Agreed Jordan. Not complicated .
Avri Doria: (13:32) The CWG contract with the PTI is the equivalent to the NTIA contract. We do not need membership for that.
Avri Doria: (13:33) I am sorry but I beleive the accountabilty concerns are not captureed.
jorge cancio (GAC - Switzerland): (13:33) One thing is to be right, and another thing is to be understood - outreach with understandable materials is key
Sébastien (ALAC): (13:33) @Keith I can try but only if I have support for this work (I am not saying suport the solution). If not it is one people against a stong group with legal advisers.
Sébastien (ALAC): (13:33) @Jordan please accept we read the documents and we are still in desagreament
Akinbo A. A. Cornerstone: (13:34) +1 Jorge Just my thought on clarity. No matter the documents provided, its important that we are on the same page.
Robin Gross [GNSO - NCSG]: (13:34) This is more about levels of enforcement for the community powers, not you get everything with one model, and nothing with the other model. There were only 2 of the 6 desired powers where membership provided tighter enforceability. There may be enough enfocement, albeit, not the absolute tightest.
jordan Carter (.nz, ccTLD member): (13:35) it's not a "level" of enforceability
Greg Shatan: (13:35) Jordan, that was exceptionally well stated. Sebastien, what do you specifically disagree with?
jordan Carter (.nz, ccTLD member): (13:35) it's a binry
jordan Carter (.nz, ccTLD member): (13:35) either it's enforceable accountability, or it is not
jordan Carter (.nz, ccTLD member): (13:35) today it is
Steve DelBianco [GNSO - CSG]: (13:35) @Alan -- Yes, ICANN is difficult to explain. UA will not add incremental complexity to that explanation. UA will never enter the conversation, since it's just a conduit for community powers
jordan Carter (.nz, ccTLD member): (13:36) if you want to replace that with not, then good luck to you, but it ain't going to happen.
Becky Burr: (13:36) not over rule Alan - so we can have a voice
jordan Carter (.nz, ccTLD member): (13:36) imagine the headline
jordan Carter (.nz, ccTLD member): (13:36) "ICANN Accountability group mulls sabotage of ICANN accoutability."
Avri Doria: (13:36) we have a voice even without membership. a very loud and persistent voice. if we add the other accountabilty mechansims we will have even more of a voice. we do not need membership.
Becky Burr: (13:37) but we won't actually have the power to remove directors or the board without members
Keith Drazek: (13:37) Correct Becky
Jonathan Zuck (IPC): (13:37) exactly @Becky
Thomas Rickert: (13:37) @Alan: Where do you think we get the power to remove the board from?
Becky Burr: (13:37) the board can decide it is not consistent with ICANN's fiduciary duties to spill the board or remove a director
Leon Sanchez (Co-Chair, ALAC): (13:38) @Rosemary or Holly, could you please get in the cue so that we can listen to your advice on this?
Avri Doria: (13:38) Greg , that is certainly the impression i am getting. enforceabilty mean going to court.
Robin Gross [GNSO - NCSG]: (13:38) true designators can remove their director
jordan Carter (.nz, ccTLD member): (13:38) Avri: is a voice enough for you, or is actually locating power in the community important to you?
jordan Carter (.nz, ccTLD member): (13:38) the important thing a membership does is locate the rights of decision in the organisation with the members, the community
F Badii: (13:38) It is the shadow of the law !!! the threat of enforceability is effective in many instances.
Adam Peake: (13:38) do you see notes on the right?
Akinbo A. A. Cornerstone: (13:39) No matter the voice we have without been able to enforce our roles gives the Board the power to execute without any legal implication for refusing to follow our voice.
Avri Doria: (13:39) i do not want membership gating the transiton. might be nice to have but is not necessary.
F Badii: (13:39) Adam, No
Becky Burr: (13:39) @Avri - it does not mean going to court - it really doesn't
Josh Hofheimer (Sidley): (13:39) @Avri, Remember, you still need UAs for designators. You still need legal persons to enforce their rights.
Adam Peake: (13:39) concern about my connection.
Robin Gross [GNSO - NCSG]: (13:39) Adam, I had to scroll up to see them.
jordan Carter (.nz, ccTLD member): (13:39) Avri: that's not what happens
jordan Carter (.nz, ccTLD member): (13:39) there is no "gating"
Becky Burr: (13:39) we'll get to that issue later in this call i hope
F Badii: (13:39) oh true I had to scroll too
Alan Greenberg: (13:39) Right pod seems to be scrolled to bottom by default.
Keith Drazek: (13:40) The only "gating" factor is that the community reach consensus on meaningful accountability reforms. Enforceability is the foundation of meaningful accountability.
Akinbo A. A. Cornerstone: (13:40) Give or take, no membership would mull the voice.
Adam Peake: (13:40) Thanks - that has been happening recently. Wiil get tech to take a look
Akinbo A. A. Cornerstone: (13:40) what is accountability without enforceability?
Keith Drazek: (13:41) Enforceability is placing authority in the community.
David McAuley (RySG): (13:41) If ICANN’s complexity prevents more accountability maybe it makes sense to expect more complexity
Robin Gross [GNSO - NCSG]: (13:41) We were told by the lawyers that we could have reliable enforceability with designator model of 4 of the 6 desired community powers. We can build processes to align the community and the board on those two issues. Perhaps that is enough and without all the upheaval of memberhip?
Avri Doria: (13:41) i personally only thing the membership is better if and only if thee is identity between soac and UAs.
Alan Greenberg: (13:41) If it came down to designators or members, ALAC has strongly supported members. For same reason we do not like UAa, Designators are a term that no one will be familiar with and will only obfuscate.
jordan Carter (.nz, ccTLD member): (13:41) avri: do you think those rules on the screen do this?
jordan Carter (.nz, ccTLD member): (13:42) Robin: upheaval?
Jonathan Zuck (IPC): (13:43) Well Jordan, it's amazing how much upheaval within the group a little bit of FUD was able to create. Amazing.
David McAuley (RySG): (13:43) @Robin, suggest this is change, not upheaval – change was instigated by NTIA, it is simply a fact.
Steve DelBianco [GNSO - CSG]: (13:44) Robin -- what is the "upheaval" of which you speak? I concede there are complexities to understand Membership, but it is a proven model that works for thousands of organizations.
Avri Doria: (13:44) membership is easy in general. turning the SOAC into members is not.
Alan Greenberg: (13:44) @Jonathan, FUD is in the mind of the beholder. I can easily class what you are saing as FUD. I didn't, and neither should you.
Robin Gross [GNSO - NCSG]: (13:45) I'm sensing signficant resistance to a change to membership structure and I do believe it is not trivia to do.
jordan Carter (.nz, ccTLD member): (13:45) Avri, we aren't turning them into UAs.
jordan Carter (.nz, ccTLD member): (13:45) Nobody has proposed that.
Robin Gross [GNSO - NCSG]: (13:45) trivial
Avri Doria: (13:45) yes, telling us it is membership or no trnasiton is an example of FUD in my book.
jordan Carter (.nz, ccTLD member): (13:46) I don't think the US Government will allow a transition if the accountability involved isn't robust.
Eberhard Lisse [.NA ccTLD Manager]: (13:46) Roelof, and even so, nobody has to want a transition.
Malcolm Hutty: (13:46) Membership is by no means complicated or difficult to explain: it is only UAs that are. If we let anyone become a member, it would be perfectly straightforward
jordan Carter (.nz, ccTLD member): (13:46) that's just an opinion, sorry for expressing it too abbreviatedly.
Avri Doria: (13:46) and the accountabilty between the SOC and UAs is not robust.
Akinbo A. A. Cornerstone: (13:46) A non-robust process will only imply we all looked in one direction.
Avri Doria: (13:46) ... between SOAC and UA ...
jordan Carter (.nz, ccTLD member): (13:46) Avri: you keep saying that, but the rules in front of you on the screen say the opposite
Becky Burr: (13:46) THIS IS NOT A RECIPE FOR LITIGATION
Robin Gross [GNSO - NCSG]: (13:46) trying to examine the options (and not only the easiest from a legal perspective) is necessarily the right answer. especially since we need to consider those outside the ICANN bubble.
Avri Doria: (13:47) i am not a lawyer, but i do not understand them that way.
Alan Greenberg: (13:47) @Jordan, I agree 100%. Bu I do beleive that recoming part of all of the Board *DOES* provide robust accountability. In fact, how to handle the case of a Director you no longer have faith in was one of the examples that Larry Strickling has used.
jordan Carter (.nz, ccTLD member): (13:47) Outside the ICANN bubble, the idea that "hand this over to these guys, but there's no binding accountability"
jordan Carter (.nz, ccTLD member): (13:47) people will be open mouthed
Becky Burr: (13:47) Avri - is that with respect to my comment on litigation?
Avri Doria: (13:47) another bit of FUD, Jordan?
jordan Carter (.nz, ccTLD member): (13:48) What is?
Greg Shatan: (13:48) The UA is but a sock pupper for the SO/AC.
Malcolm Hutty: (13:48) Becky, with the greatest of respect, and while I agree with everyone you have said, preserving the possibility of litigation is also important. And I don't think that right should be restricted only to SOACs
jordan Carter (.nz, ccTLD member): (13:48) Enforceability is a binary, it exists or it doesn't
jordan Carter (.nz, ccTLD member): (13:48) it's that simple
jordan Carter (.nz, ccTLD member): (13:48) it's nothing other than an underlying reality from the solution that gets suggested
jordan Carter (.nz, ccTLD member): (13:49) its a tick or a cross
jordan Carter (.nz, ccTLD member): (13:49) the important stuff surely is the set of powers and how it works
Roelof Meijer (SIDN, ccNSO): (13:49) Jordan, have you been drinking? Or smoking?
Robin Gross [GNSO - NCSG]: (13:49) I heard it is reliable for 4, and challenging for 2. If that is binary in your book, sure.
Jonathan Zuck (IPC): (13:49) I think the fears surrounding US courts was FUD, yes. I think it has had us spinning for quite some time. Without enforceability there is no accountability. there is only good will and trust and accountability should not rely on that.
Becky Burr: (13:49) I don't disagree Malcolm, but I just think that this focus on litigation is, as Avri would say, FUD
Malcolm Hutty: (13:49) Roelof, that's out of order
Greg Shatan: (13:49) I have no problem with the "possibility" of litigation. Turning that into a "probability" of litigation is a problem, and one I think is totally unfounded.
Avri Doria: (13:49) No Becky it was to Jordan's claim that the UA defined by the doc in the screen is both independent as a UA must be, and yet dependent on ICANn bylaws for accountabilty.
jordan Carter (.nz, ccTLD member): (13:49) Roelof: it's 7.50am, I haven't even had coffee yet :)
Steve DelBianco [GNSO - CSG]: (13:50) especially if you have red har, Sebastian !
Becky Burr: (13:50) I have red hair, but happy to listen
Avri Doria: (13:50) i think saying that peopel will not accept the transtion without membership is the FUD utterance
jordan Carter (.nz, ccTLD member): (13:50) COngress
jordan Carter (.nz, ccTLD member): (13:50) not people
Malcolm Hutty: (13:50) @Becky, well, there are clearly those here trying to avoid any effective accountability, and kicking up as much FUD as possible. I fear they may succeed in sabotaging this process, and the result will call IANA transition into question altogether
Roelof Meijer (SIDN, ccNSO): (13:50) @Malcolm and @ Jordan: you're right I withdraw that remark and apologize
Avri Doria: (13:50) what this bit about Red hair.
jordan Carter (.nz, ccTLD member): (13:50) I am sure it would b lovely for the ICANN insiders
Steve DelBianco [GNSO - CSG]: (13:50) Sebastian -- please explain WHY you think another solution (other than Members) is required
Becky Burr: (13:51) Sebastian keeps threatening to come with red hair on
Avri Doria: (13:51) again ;lovelty for icann insiders' is moalso fuddish
Becky Burr: (13:51) i think it means he is about to get really angry
jordan Carter (.nz, ccTLD member): (13:51) Roelof - I assumed you were joking. If you weren't, let's discuss that.
Avri Doria: (13:51) oh
Roelof Meijer (SIDN, ccNSO): (13:52) @Jordan: of course I was, it was not a serious question. But jokes can be out of order too. What is "FUD" by the way
jordan Carter (.nz, ccTLD member): (13:52) No Jokes! This is Serious!
Avri Doria: (13:53) fear uncertainly and doubt. thigs said to distract those who disagree.
Becky Burr: (13:53) Fear Uncertainty and Doubt
jordan Carter (.nz, ccTLD member): (13:53) Fear, Uncertainty and Doubt - it's a tactic used to disrupt debates and discussions.
Malcolm Hutty: (13:53) @Roelof, Fear Uncertainty and Doubt, usually designed to avoid rational discussion
Mathieu Weill, ccNSO, co-chair: (13:53) I sense some common thread around those responses, can I call it consensus about what FUFD means ?
Roelof Meijer (SIDN, ccNSO): (13:53) it's not FUD then, but KISS
Becky Burr: (13:53) yes!
F Badii: (13:54) It's better not to use the acronym FUD to avoid FUD! We have enough acronyms !
jordan Carter (.nz, ccTLD member): (13:54) lol
Roelof Meijer (SIDN, ccNSO): (13:55) @F Badii: shit, yes. That was not an acronym, by the way
jordan Carter (.nz, ccTLD member): (13:55) in the end, i trust the process we have, of debating this hard, stress tests, public scrutiny and input, congressional and usg scrutiny
Akinbo A. A. Cornerstone: (13:55) I find i offensive thatsuch word set into play due to discussing diverse opinion.
Avri Doria: (13:56) i do not see the path to implementatin fo the GNSO becoming a UA.
James Bladel - GNSO: (13:56) At some point, this group will need to call the quesition on this. I don't see folks' positions moving closer together as a result of these converarstations & email threads.
Akinbo A. A. Cornerstone: (13:56) call me a sabotage to the transition shows clearly that an agenda was set up to be followed.
Becky Burr: (13:57) i don't think there is a lack of trust in the board, there is a lack of trust in the current arrangement and allocation of authority
jordan Carter (.nz, ccTLD member): (13:57) isn't the low trust environment the sort that is quite well suited to the sort of division / separation of powers our proposal has suggested?
Jonathan Zuck (IPC): (13:57) it's not about trust and shouldn't be. Accountability is not about trust
Becky Burr: (13:57) after all, we've had lots of different boards over the years
jordan Carter (.nz, ccTLD member): (13:58) Akinbo: the only 'agenda' I have is to make sure that ICANN, which provides services to my organisation, becomes and remains accountable to us as part of the community. I still don't know how that is going to look when our work here is done. I personally have no evil master plan.
jorge cancio (GAC - Switzerland): (13:58) Please give a thought to explaining in a document what the legal implications are, the rights, obligations and liabilities (whether covered or not and how) of an informal group (as is nowadays the GAC) creating an UA and taking decisions as such UA, from substantial (like exercising the community powers) to clerical (appointing its board, deciding on its financing...) and whether there are implications when the members of such an UA are Governments.
jordan Carter (.nz, ccTLD member): (13:58) it won't have a board, it won't have finance
Akinbo A. A. Cornerstone: (13:58) UAs would only have rights?
jordan Carter (.nz, ccTLD member): (13:58) but a good "how to" summary might be useful to Jorge, and to Avri re the GNSO picture
Akinbo A. A. Cornerstone: (13:59) So, what is the fera?
Mathieu Weill, ccNSO, co-chair: (13:59) @Jorge : clearly we are trying to do that, but we would need Govts to help draft the questions for the last part (when members are Govts)
Akinbo A. A. Cornerstone: (13:59) *fear?
David McAuley (RySG): (13:59) Good points Holly. Today, for example, ICANN bylaws create a requirement (as yet unfulfilled) for a standing IRP panel – but we have no way to “enforce” that. Shouldn’t there be at least the possibility of enforceability? We would not need to take up enforcement, but should we be able to if we wanted?
jordan Carter (.nz, ccTLD member): (13:59) Akinbo: the model we've been talking about is the SO/AC having all the powers etc. Exercised through the legal reality of the UA.
jorge cancio (GAC - Switzerland): (13:59) dear Jordan: imagine if I have doubts, what level of doubts might be there outside
Akinbo A. A. Cornerstone: (14:00) Jordan: Which i agree with.
jorge cancio (GAC - Switzerland): (14:00) a bit of empathy would be useful
jordan Carter (.nz, ccTLD member): (14:00) oh absolutely
Josh Hofheimer (Sidley): (14:00) @avri and @jorge - Sidley and Adler have submitted a couple memos previously that explain the UAs, the process for creating, legal recognition in foreign states, etc. Perhaps CCWG can re-post links to those documents
jordan Carter (.nz, ccTLD member): (14:00) and the information being pulled together in one place
jordan Carter (.nz, ccTLD member): (14:00) would help
jorge cancio (GAC - Switzerland): (14:00) and call it board or whatever: it will have governance structures and will need means to do its business
Pedro Ivo Silva [GAC Brasil]: (14:00) +1 Jorge. Just adding that such a clarification would be fundamental for the GAC to evaluate whether it want to be part of the community mechanism or not.
jordan Carter (.nz, ccTLD member): (14:00) jorge: but look at the rules on the screen
jordan Carter (.nz, ccTLD member): (14:01) the governance structure is whatever the SO or AC has
jordan Carter (.nz, ccTLD member): (14:01) the UA has nothing besides that
Steve DelBianco [GNSO - CSG]: (14:01) Turst isn't going to serve in situations where the community wants ICANN to do-over and risk being sued. That's where enforceability anctually helps the board resolve a conflict between community and their fiduciary duty to the corporation
Mathieu Weill, ccNSO, co-chair: (14:01) @Jorge & Pedro : are you planning to submit these questions ? It would be helpful
Avri Doria: (14:01) Steve and that is why some of us see enforceability being about going to court.
jordan Carter (.nz, ccTLD member): (14:02) but the point is to have a structre in which legal rights are clear, so that you DON'T end up in Court, isn't it
jordan Carter (.nz, ccTLD member): (14:02) ?
Steve DelBianco [GNSO - CSG]: (14:02) Avir -- if the board knows we can go to court to ENFORCE our vote, they will honor our vote. Agree?
jorge cancio (GAC - Switzerland): (14:02) sincerely: why is it not enough to explain this here?
Becky Burr: (14:02) YES - the Board is not lawless!
jordan Carter (.nz, ccTLD member): (14:02) Mathieu - isnt asking the questions here enough?
Roelof Meijer (SIDN, ccNSO): (14:03) HEAR HEAR our legal counsel
Akinbo A. A. Cornerstone: (14:03) Did you get what @Rosemary is saying? We need not go to court if we follow the right process.
Avri Doria: (14:03) Steve, not necessarily. If they are are serving their idea of fidciary repsonsiblity, threatening them with court is irrelevant.
Keith Drazek: (14:03) +1 Roelof
jorge cancio (GAC - Switzerland): (14:03) This is a recurring question as I already said - perhaps this might not be understood in the core of this group, but there is a different reality outside
Malcolm Hutty: (14:03) You can't compare a situation where people could go to court but choose not to because the right answer is clear, with a situation where there is no right to go to court
Mathieu Weill, ccNSO, co-chair: (14:03) @Jorge : I can capture your Qs but I would have some clarifying questions to better understand the Q. For instance, what do you mean is special from the Gvt perspective ?
Becky Burr: (14:03) But that's not an argument for not having enforceability. that's an argument for having enforceability
Malcolm Hutty: (14:03) Exactly, Becky
Becky Burr: (14:04) what she said
Akinbo A. A. Cornerstone: (14:04) Its better to set the right dot on the 'i' rather than wait for doomsday
jordan Carter (.nz, ccTLD member): (14:04) Yes. By having a complete framework in place, you dont ahve to have crisis fixes if things go awry.
jorge cancio (GAC - Switzerland): (14:05) BTW even if you just duplicate AC structures in the AC you are creating such structures anew under claifornia jurisdiction - this is surely not without any effect
jordan Carter (.nz, ccTLD member): (14:05) There is no effect
Malcolm Hutty: (14:05) If you have a clear right to go to court, and if the likely outcome of that is clear, then you will be very unlikely to end up in court. If you don't have the right to go to court, it's much more likely that you'll end up in a situation where you want to
Keith Drazek: (14:05) Relying on trust for a Board 10 or 20 years hence is a recipe for failure.
Akinbo A. A. Cornerstone: (14:05) Thanks @Rosemary.
jorge cancio (GAC - Switzerland): (14:05) in the UA I wanted to say
Avri Doria: (14:05) i guss i have more trust at this point in the Board than i do unaccountable UAs.
Becky Burr: (14:05) correct Malcolm
jordan Carter (.nz, ccTLD member): (14:05) other than letting the SO or AC implement its rights
F Badii: (14:05) Wha would be the effect Jorge ?
jordan Carter (.nz, ccTLD member): (14:05) Avri: where do you see the lack of accountability in the structure presented on the screen?
Mathieu Weill, ccNSO, co-chair: (14:05) @Jorge : I will capture your questions from the chat then reach out to you for some precisions
jordan Carter (.nz, ccTLD member): (14:05) if the UA is unaccoutable it is because the SO or AC is unaccountable?
Keith Drazek: (14:06) @Avri: What about a Board in 10 years comprised of no one you know?
jorge cancio (GAC - Switzerland): (14:06) sure there is Jordan: you are able to enforce rights which you di not have, for starters
Malcolm Hutty: (14:06) Or as the old saying goes "Better have it and not need it, than to need it and not have it"
jordan Carter (.nz, ccTLD member): (14:06) there are no "new" avenues
Keith Drazek: (14:06) +! Malcolm
David McAuley (RySG): (14:06) There are plenty of arrangements we all live by (apartment rentals for example) where we never expect to go to court – but a court is there if something goes horribly wrong.
Becky Burr: (14:06) i don't understand Avri - is it your view that SOs and ACs are currently unaccountable?
Akinbo A. A. Cornerstone: (14:06) If we merge the resident law with our right opinion in black and white, we would have taken care of any renagade Board in the future.
Jonathan Zuck (IPC): (14:06) +1 malcolm
jordan Carter (.nz, ccTLD member): (14:06) +1 Akinbo
Avri Doria: (14:06) my trust is int the mehcansism we have for slecting the board and will be adding for removing them.
Greg Shatan: (14:06) THe UAs are the SO/ACs. This idea that the UA's will be Golems (or Frankenstein's Monsters) is one I just do not understand.
Julia Wolman, Denmark, GAC: (14:06) We have to remember the interdependencies between the CWG and CCWG
jordan Carter (.nz, ccTLD member): (14:07) which requires members or designators... which requires legal persons
Robin Gross [GNSO - NCSG]: (14:07) I think 100% enforceability vs Trust is a false dichotomy. There is quite a spectrum in between. We could build processes to align the board and community on the 2 remaining powers
jordan Carter (.nz, ccTLD member): (14:07) ... for which the simplest, least "other" structure is a UA
Avri Doria: (14:07) Greg, i do not see that. I see them a Golem composed of a contract that is clear as mud to me.
F Badii: (14:07) What is so wrong with California court! Court will not say what is right for us , court will give us the right to make the board accountable
Roelof Meijer (SIDN, ccNSO): (14:08) Where from comes this notion that crisis can always be prevented? And that we should? Solving a crisis can be very rewarding, measures to prevent them all are paralysing and ignore the power of the human intellect
Greg Shatan: (14:08) Then we need to clarify the agreeement that ensures that the UA has no right of independent action beyond what the SO/AC tells it to do.
Malcolm Hutty: (14:08) Avri, would you be happier if the powers in this proposal were given to SOACs directly rather than UAs?
Avri Doria: (14:08) and i do not see going to court to enforce the accountabilty that this contract claims between the SOAC and its UA.
jordan Carter (.nz, ccTLD member): (14:08) Aren't we trying to build a syste that doesn't have crisis built into it
jordan Carter (.nz, ccTLD member): (14:09) Malcolm: I would contend there is next to no difference between those two options, in many ways
Avri Doria: (14:09) i think that if the AOC is the UA, i can find the accountabilty. otherwise I just do not think it follws.
Akinbo A. A. Cornerstone: (14:09) If we miss any semantics that could salvage the accountabilty of ICAAN in the future, we would loos it all.
jordan Carter (.nz, ccTLD member): (14:09) Co-chairs or staff, has that set of rules been circulated on the email?
Roelof Meijer (SIDN, ccNSO): (14:09) @Jordan: there is a huge difference between "a system with a crisis built into it" and "a system that has countermeasures to every possible thinkable crisis bult into it"
Avri Doria: (14:09) ...the SOAC is the UA ...
Keith Drazek: (14:09) This is the first CCWG call I can remember where I feel we've taken more steps back than forward.
Avri Doria: (14:10) Keith, i think that is becasue some of you resumed an agreement that did not have consensus yet.
Malcolm Hutty: (14:10) Jordan: if giving the powers to SOACs resolves the conflict, then the only power that cannot be given to SOACs is standing in court. And I haven't heard any reason to be worried about an unaccountable misuse of that power
jordan Carter (.nz, ccTLD member): (14:10) It would be named individuals, Malcolm
Akinbo A. A. Cornerstone: (14:10) +1 Roeloef Counter-measures.
jordan Carter (.nz, ccTLD member): (14:10) to me there;s very little difference
Roelof Meijer (SIDN, ccNSO): (14:11) @Keith: I think we're in a phase where it's good to take a few steps back and reflect. And discuss
Mathieu Weill, ccNSO, co-chair: (14:11) @keith : it can't be a straight path, this is perfectly normal at this point. Better that now than one week from Dublin
Malcolm Hutty: (14:11) Indeed, Jordan, that's what I'm trying to get towards. Better yet, open membership
Roelof Meijer (SIDN, ccNSO): (14:11) @Jordan: I suspected so
Avri Doria: (14:12) Malcom, does open memebrship mean indiduals, naturla and corposate, joining?
Alan Greenberg: (14:12) @Keith, perhaps fbackward, perhaps forward. A numbe rof us have until recently accepted that this was a ll a done deal and to use a term I like, "resistance would be futile" (and I note that Towel Day was just a few days ago).. Perhaps some of feel at this point it is less than futile.
jordan Carter (.nz, ccTLD member): (14:13) but I think named individuals is less good than a vehicle for the whole SO/AC to continue exercising its decisions in the usual way
jordan Carter (.nz, ccTLD member): (14:14) the named individual model of membership doesn't quite achieve that, but the UA model does
Avri Doria: (14:15) Jordan, only if there is identity between the UA and the SOAC. not a complicated relations that depends on a contract which possibly needs enforcement.
Malcolm Hutty: (14:15) Avri, yes. I was suggesting letting any person become a member who asked to be.
jordan Carter (.nz, ccTLD member): (14:15) which contract, Avri? I haven't heard of any in this system
Avri Doria: (14:15) the contract that won on the screen for the first hour.
jordan Carter (.nz, ccTLD member): (14:15) that was an articles of association for a UA
Avri Doria: (14:15) won = was on
Avri Doria: (14:16) ok, sorry worng term.
jordan Carter (.nz, ccTLD member): (14:16) specifying that the UA does what the SO or AC tells it do
Holly Gregory: (14:16) Avri, do you mean the articles for the UA?
Keith Drazek: (14:16) To be clear, I have no problem with us having these tough conversations...that's what consensus-building is all about. I just feel like so much of the good work of the last several months has been shoved aside becuase it's perceived as being too complex...when its really not.
jordan Carter (.nz, ccTLD member): (14:16) ie creating an identity in decisions between the SO and the UA
Avri Doria: (14:16) but nonetheless, substitue AoI for contract. in my statement.
Steve DelBianco [GNSO - CSG]: (14:16) Avri -- it was Articles, as Jordan said. But think oif it as a contract between the UA entity and the AC/SO behind it. That's how you enusre the UA is accountable to the AC/SO
Avri Doria: (14:16) how do you enforce AoI?
jordan Carter (.nz, ccTLD member): (14:17) tere's nothing to enforce
Avri Doria: (14:17) ther is if those hold the UA vote don't do what the AOAC says.
jordan Carter (.nz, ccTLD member): (14:17) because the UA has no capacity to do anything other than what the SO says
Avri Doria: (14:17) what stops them?
jordan Carter (.nz, ccTLD member): (14:17) but in that model, the SOAC tells the UA what to do
jordan Carter (.nz, ccTLD member): (14:17) they are the same people
Holly Gregory: (14:18) all the aol does is evidence intent that is necessary to be an unincorporated association
Greg Shatan: (14:18) Very well done presentation. All sounds right to me.... FWIW.
David McAuley (RySG): (14:18) Nice presentation Becky – seems to address a number of concerns
Alan Greenberg: (14:18) @Jordan, the UA reps are specific people. How do you know they will do what we ask. (Again, we are looking at a worst case scenario).
Mathieu Weill, ccNSO, co-chair: (14:19) @Alan: would transparency be enough ?
Jonathan Zuck (IPC): (14:19) @Alan, they're vote would simply not count
Malcolm Hutty: (14:19) @Alan, what do you think they might do instead?
Keith Drazek: (14:19) We discussed having a process of confirming that the member is acting consistently with the interests of his/her group.
jordan Carter (.nz, ccTLD member): (14:19) Because if they didn;t, the SO would declare that, and appoint new people to be the UA reps.
Pedro Ivo Silva [GAC Brasil]: (14:20) I kindly ask staff to share Becky's slide in the list or to upload it. Thanks!
Keith Drazek: (14:20) I'm not a lawyer and I understand it.
jordan Carter (.nz, ccTLD member): (14:20) but the question supposes that e.g. the chair of ALAC would make one decision in that role and then contradict themselves
Keith Drazek: (14:20) ...and I'm not even that smart. ;-)
Avri Doria: (14:20) i think i understand it and think i see an accountabilty hole.
jordan Carter (.nz, ccTLD member): (14:20) im not a lawyer either for the record
Alan Greenberg: (14:20) @Jordan, the case that was originally brought up is what do you do if a person refuses to stand down (just as we suppose a director will refuse to leave). We were told that the only recourse would be to name a new person and have that new person take the old one to court.
Avri Doria: (14:20) Keith, you are that smart i am sure.
jordan Carter (.nz, ccTLD member): (14:21) but they aren't leaving anything
jordan Carter (.nz, ccTLD member): (14:21) people would just point and laugh at them
Robin Gross [GNSO - NCSG]: (14:21) I would be worried about protecting "minority rights" in a membership model where only the majority can act
jordan Carter (.nz, ccTLD member): (14:21) remember, all the powers the UAs would have are within ICANN
jordan Carter (.nz, ccTLD member): (14:21) and the people receiving the votes would ignore the purported member
jordan Carter (.nz, ccTLD member): (14:22) and the purported member wouldn't have an y money or resources to do anything about it
jordan Carter (.nz, ccTLD member): (14:22) so teh could refuse absolutely
jordan Carter (.nz, ccTLD member): (14:22) but everyone would laugh at them and then ignore them, and listen to the freshly appointed reps
Malcolm Hutty: (14:22) @Robin, I agree. We are supposed to be concernd with the accountablity of ICANN, not the accountability of ICANN Board to SOACs. We are risking losing sight of need to protect the rights of individuals from ICANN, acting with the support of the SOACs
Robin Gross [GNSO - NCSG]: (14:23) Bingo, Malcolm.
Jonathan Zuck (IPC): (14:23) Thee are mechanisms for individuals to act
Avri Doria: (14:24) in the GNSO, majority vote will almost alwasy be what the contracted parties want.
Robin Gross [GNSO - NCSG]: (14:24) except for when it what the IPC wants (just kiddin' guys!
Malcolm Hutty: (14:24) Yes, Jonathan. A clear set of bylaws (and in particular clear Mission) plus an effective IRP provides good protection to individuals. All we need is for individuals to be able to enforce, and the circle is complete
Holly Gregory: (14:25) Becky, good point re preventing abuse
Avri Doria: (14:25) will we need a whole new set of bylaws (somewhere or other) on how the GNSO deterines the vote of the GNSO-UA?
jordan Carter (.nz, ccTLD member): (14:25) Avri, wouldn't decisions flow the same as they do in the GNSO now?
jordan Carter (.nz, ccTLD member): (14:26) ie for directors, the same two house approach
Avri Doria: (14:26) each kid of decsions has a different threshghold. very gothic.
Keith Drazek: (14:26) The ICANN multi-stakeholder community is currently based on the SO/AC/SG/C structure. Until we decide to change that, it's the best bottom-up, consensus-based foundation for the accountability reforms. Yes, there could be a new set of bylaws for the GNSO, if the GNSO deemed necessary. The CCWG isn't dictating to the groups if/how they determine threasholds, etc.
jordan Carter (.nz, ccTLD member): (14:26) you'd just replicate those as appropriate
jordan Carter (.nz, ccTLD member): (14:26) for X power employ Y approach
jordan Carter (.nz, ccTLD member): (14:26) ?
Malcolm Hutty: (14:27) @Keith, was that in reply to me?
Avri Doria: (14:27) and that is beyond the lack of accountabilty which ensues from lack of identiy.
jordan Carter (.nz, ccTLD member): (14:27) we had a doctrine I thought of leaving the details to the SOs and ACs to confirm?
jordan Carter (.nz, ccTLD member): (14:27) it's no new complexity compared to what is already there
Keith Drazek: (14:27) Correct Jordan.
jordan Carter (.nz, ccTLD member): (14:28) unless an SO decides to invent totally new ways to do this :)
Rosemary Fei: (14:28) Is there a schedule of calls for the intensive work period coming up in just over a week?
David McAuley (RySG): (14:28) Today’s discussion raises the need of legal support in BA – can we discuss arrangements at some point.
Becky Burr: (14:28) absolutely Kavouss, i totally took it as a friendly question
Becky Burr: (14:29) i may have a manner that suggests otherwise, in which case I apologize
jordan Carter (.nz, ccTLD member): (14:29) +1 Kavouss - the temper of the discussion rises at times, but I can't think of an unconstructuve exchange really in this group
Holly Gregory: (14:29) Kavouss, happy to do so if the CCWG asks us to do so.
Becky Burr: (14:29) yes, we need to think through a hybrid model
jordan Carter (.nz, ccTLD member): (14:30) people don't need to be a member of UA for that UA to implement the decisions of the SO or AC
jordan Carter (.nz, ccTLD member): (14:31) the UA does what the SO and AC tells it to, so nothing is disrupted on that front
Malcolm Hutty: (14:31) Agree: the only power "Members" need have is the power of legal standing to allege non-compliance with bylaws. The other powers can be exercised by SOACs directly.
Avri Doria: (14:36) Jordan, I still see no guarantee that the UA does what the SOAC wants done. Ho w is that enforced?
Alan Greenberg: (14:36) 24/28 Members have replied to Doodle. Wouldappreciate a formal decision ASAP.
jordan Carter (.nz, ccTLD member): (14:37) Avri: it is the same people
jordan Carter (.nz, ccTLD member): (14:37) and the "decision" is a resolution of the SO
Rosemary Fei: (14:37) Do you want counsel at that meeting? I have not seen an email regarding the poll on dates for the meeting.
jordan Carter (.nz, ccTLD member): (14:37) so the named 'members of the UA' have no power to make a different decision
jordan Carter (.nz, ccTLD member): (14:37) and if they start pretending a different decision is made, the SO will put everyone right
Robin Gross [GNSO - NCSG]: (14:37) what is the rationale for doing a face-to-face mtg, rather than an Adobe Connect mtg?
jordan Carter (.nz, ccTLD member): (14:37) that's how I see it
Avri Doria: (14:38) what do you mean no power. when in the members meeting nothing constrains them.
jordan Carter (.nz, ccTLD member): (14:38) same people, same decisions
jordan Carter (.nz, ccTLD member): (14:38) but that question raises an interesting people
jordan Carter (.nz, ccTLD member): (14:38) er, point!
jordan Carter (.nz, ccTLD member): (14:39) we haven't really resolved whether the votes are being cast by people, or by resolutions, have we?
jordan Carter (.nz, ccTLD member): (14:39) (or by people instructred by resolutions)
Robin Gross [GNSO - NCSG]: (14:39) indeed not, Jordan
Avri Doria: (14:39) i was pretty sure all along it was people. the people designated to be the UA reps.
Eberhard Lisse [.NA ccTLD Manager]: (14:39) Not all questions have been answered. Many have been palin ignored.
Eberhard Lisse [.NA ccTLD Manager]: (14:40) plain, rather
jordan Carter (.nz, ccTLD member): (14:40) Robin: I personally find two days of an in person meeting far more productive than two days of calls
jordan Carter (.nz, ccTLD member): (14:40) these meetings are OK for progressing stuff but harder for resolving stuff
Robin Gross [GNSO - NCSG]: (14:40) We meet in Adobe Connect for 8-10 hours a day.
Jonathan Zuck (IPC): (14:41) agree Jordan
Akinbo A. A. Cornerstone (.ng ccTLD Member): (14:41) I disagree on that issue
jordan Carter (.nz, ccTLD member): (14:41) Robin -- that's not at all how Istanbul felt.
Alan Greenberg: (14:41) 2 days f2f allow for far more hours meeting than remote, and allow for private discussions that can lead to closure. Depite agony of travel, FAR more productive in my mind.
Jonathan Zuck (IPC): (14:41) for one thing it's tougher to have 3 conversatins at once in person!
Robin Gross [GNSO - NCSG]: (14:41) I don't think these issues should be resolved in "private discussions".
Keith Drazek: (14:41) I assumed the members would be acting on the instructions (however delivered) of their respective group. Directed voting, in orther words.
jordan Carter (.nz, ccTLD member): (14:41) langauge, quiet asides, face to face interaction, etc.
Becky Burr: (14:42) i am loathe to miss the beginning of my vacation, but I do think F2F is more conducive to bring closure
Becky Burr: (14:42) so long as it's an easy hub
Eberhard Lisse [.NA ccTLD Manager]: (14:42) I also think F2F is better, even though we should do it later
jordan Carter (.nz, ccTLD member): (14:42) I think we should proceed with a meeting on the date the doodle suggested, pesonally
Leon Sanchez (Co-Chair, ALAC): (14:42) I think F2F favors agreement in many ways as many have said
jordan Carter (.nz, ccTLD member): (14:42) Eberhard: later as in a few days later, or later as in after PC2?
Eberhard Lisse [.NA ccTLD Manager]: (14:43) a week or so
Akinbo A. A. Cornerstone (.ng ccTLD Member): (14:43) no objection
Avri Doria: (14:43) 17/18 where?
Becky Burr: (14:43) not me
Olga Cavalli - GAC Argentina: (14:43) no objections to meeting F2F in july
Josh Hofheimer (Sidley): (14:43) What is the expectation for legal counsel (Sidley & Adler) participation at these meetings?
jordan Carter (.nz, ccTLD member): (14:44) I'd prefer we stuck with teh 40 day meeting and the range of dates set out
Becky Burr: (14:44) we were roundly criticized for shortening the period
David McAuley (RySG): (14:44) +1 Josh and in BA?
Cheryl Langdon-Orr: (14:44) Indeed we were
jordan Carter (.nz, ccTLD member): (14:44) maybe with 40 days there can be translations
jordan Carter (.nz, ccTLD member): (14:44) in time!
Leon Sanchez (Co-Chair, ALAC): (14:44) @Josh we are not sure at this point. We will let you know in a timely fashion
Mathieu Weill, ccNSO, co-chair: (14:45) @Josh there will be a need
David McAuley (RySG): (14:45) @Leon - what about BA - we will need the help
Eberhard Lisse [.NA ccTLD Manager]: (14:45) Becky I am one of the critics, but I prefer proper deliberations as you well know
Cheryl Langdon-Orr: (14:45) so some of us travel 2 days to meet 1. no needs to be worth the travel
Leon Sanchez (Co-Chair, ALAC): (14:45) @David, yes, the request for legal support for BA has been sent already. Sorry for not replying to your email earlier today
Avri Doria: (14:46) where will this meeting be held?
Leon Sanchez (Co-Chair, ALAC): (14:46) We will be having Holly and Rosemary attending in person and Josh attending remotely
David McAuley (RySG): (14:46) Thanks Leon - are counsel ok with it?
Robin Gross [GNSO - NCSG]: (14:46) can you give any hints where the mtg might be held?
Holly Gregory: (14:46) greatly appreciate guidance on whether Sidley is needed t
jordan Carter (.nz, ccTLD member): (14:46) will it be somewhere in Europe?
Robin Gross [GNSO - NCSG]: (14:46) what venues are being looked?
Leon Sanchez (Co-Chair, ALAC): (14:47) @David I believe they are ok as they have not voiced any objection
David McAuley (RySG): (14:47) Thanks Leon
Robin Gross [GNSO - NCSG]: (14:47) what cities in Europe?
jordan Carter (.nz, ccTLD member): (14:47) please can it not be Frankfurt again
Mathieu Weill, ccNSO, co-chair: (14:48) My treat if it's Paris of course
Becky Burr: (14:48) Frankfurt flights were VERY expensive
Becky Burr: (14:48) astoundingly expensive for those paying our way
Robin Gross [GNSO - NCSG]: (14:48) We will take you up on that kind offer, Mathieu!
Becky Burr: (14:48) Paris good by me
Avri Doria: (14:48) when will this be finalized?
jordan Carter (.nz, ccTLD member): (14:48) M, you wll pay for all our trips? :)
Avri Doria: (14:49) today/tommorow?
Mathieu Weill, ccNSO, co-chair: (14:49) @Jordan: dinner for all
jordan Carter (.nz, ccTLD member): (14:49) :)
Mathieu Weill, ccNSO, co-chair: (14:50) At end of meeting, subject to approval of co-chairs proposals during meeting of course #nopressure
Mathieu Weill, ccNSO, co-chair: (14:50) ;-)
Leon Sanchez (Co-Chair, ALAC): (14:50) LOL
Akinbo A. A. Cornerstone (.ng ccTLD Member): (14:50) Paris is good if only Weil is paying. lol!
Akinbo A. A. Cornerstone (.ng ccTLD Member): (14:50) oh! Dinner.
Mathieu Weill, ccNSO, co-chair: (14:51) These questions are only missing from one document, not from the report
jordan Carter (.nz, ccTLD member): (14:51) because of the nature of the questions being asked, youcan't answer them without reading te full report
jordan Carter (.nz, ccTLD member): (14:51) and when you read the full report, you see the other questions
Keith Drazek: (14:51) Correct. They were not omitted from the report.
Adam Peake: (14:52) Please inform your respective organizations of the 3 questions.
Mathieu Weill, ccNSO, co-chair: (14:52) @David : yes we are only discussiing the amount of support
Leon Sanchez (Co-Chair, ALAC): (14:52) @David we might have someone else from Adler attend remotely as well
Stephanie Petit (Adler & Colvin): (14:52) Adler had hoped to have two persons participate remotely, but this is of course up to you.
David McAuley (RySG): (14:53) Thank you @Mathieu
jordan Carter (.nz, ccTLD member): (14:53) good work everyone.
Holly Gregory: (14:53) thank you all!
Keith Drazek: (14:53) Thanks all.
Pär Brumark (GAC Niue): (14:53) Thx!
Mathieu Weill, ccNSO, co-chair: (14:53) and BTW join me in wishing Alice a happy birthday !
FIONA ASONGA (ASO): (14:53) Thanks Bye
Leon Sanchez (Co-Chair, ALAC): (14:53) thanks everyone
jordan Carter (.nz, ccTLD member): (14:53) bye team
Rosemary Fei: (14:53) thanks, all
Robin Gross [GNSO - NCSG]: (14:53) thanks - bye
Olga Cavalli - GAC Argentina: (14:53) bye thanks!
David McAuley (RySG): (14:53) Thanks all
Cheryl Langdon-Orr: (14:53) good call... Thanks everyone... Talk again soon... bye
Kimberly Carlson: (14:53) Thank you. Bye All.
