Attendees:
Members: Alan Greenberg, Alice Munyua, Athina Fragkouli, Becky Burr, Bruce Tonkin, Cheryl Langdon-Orr, Eberhard Lisse, Fiona Asonga, Izumi Okutani, James Bladel, Jordan Carter, Julie Hammer, Leon Sanchez, Lyman Chapin, Mathieu Weill, Olga Cavalli, Pär Brumark, Samantha Eisner, Sébastien Bachollet, Steve DelBianco, Thomas Rickert, Tijani Ben Jemaa, Tracy Hackshaw (23)
Participants: Andrew Harris, Anne Aikman-Scalese, Avri Doria, Chris Disspain, David McAuley, Edward Morris, Erika Mann, Farzaneh Badii, Finn Petersen, George Sadowsky, Greg Shatan, James Gannon, Jonathan Zuck, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Lise Fuhr, Malcolm Hutty, Markus Kummer, Maura Gambasssi, Olivier Muron, Pam Little, Paul Rosenzweig, Pedro da Silva, Phil Buckingham, Rinalia Abdul Rahim, Rita Forsi, Sabine Meyer, Seun Ojedeji, Sivasubramanian Muthusamy, Thomas de Haan, Thomas Schneider, Tom Dale, Vrickson Acosta, Yasuichi Kitamura (35)
Advisors: Jan Scholte, Willie Currie
Legal Counsel: Holly Gregory, Michael Clark, Rosemary Fei, Stephanie Petit, Sharon Flanagan
Staff: Adam Peake, Bart Boswinkel, Bernard Turcotte, Berry Cobb, Brenda Brewer, Glen de Saint Gery, Grace Abuhamad, Hillary Jett, Julia Charvolen, Mike Brennan, Theresa Swinehart, Bob Ochieng, Teresa Elias
Apologies: Giovanni Seppia, Martin Boyle, Roelof Meijer, Suzanne Radell, Matthew Shears, Julia Wolman, Nell Minow, Valerie D'Costa
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Recordings
- The Adobe Connect recording is available here: https://icann.adobeconnect.com/p9rc255g4xh/
- The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-0630-17jul15-en.mp3
Proposed Agenda
08:30-08:45 – Welcome:
Opening remarks
Define meeting goals, outcomes and rules (if any)
Relevant documents :
- Agenda of Paris F2F meetings (Day 1 meeting ; Day 2 Meeting)
- Slides (to be provided)
08:45-09:15 – CWG dependencies - introduction and reminder
Relevant documents : CWG final proposals
09:15-10:15 – Community empowerment model – Q&A with lawyers
Relevant documents : Sidley & Adler community model document:
10:15-10:45 – Review of emerging items – WP3
Relevant documents :
- Staff accountability WP3 input
- SO/AC accountability WP3 input
- Diversity WP3 input
10:45-11:00 – Coffee break
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.
Goal to reach our Second Public Comment at the end of July.
Recalling the arrangement of work stream 1 and work stream 2.
Concise interventions, to allow everyone to be heard. Best practise, of one intervention per topic. The 2 minute clock if necessary.
Day 1 and Day 2, as different meetings, and allowing for the two-meeting rule as part of our working methods.
Eberhard Lisse objection to the two-meeting proposal noted.
New agenda circulated yesterday (July 16). Change: additional session on IRP, two IRP sessions on day 2.
* Concerns identified from the public comment
* How have they been resolved
* What are the open issues
23 members in the room. And all liaisons, and 3 Advisors, 7 ICANN Board members
CWG Dependencies, Lise Fuhr CWG Co-Chair
The CWG proposal has been sent to the ICG.
There are conditionalities in the proposal based on the outcome of the CCWG.
Timing is important: need CCWG input by Dublin, or the CWG proposal cannot stand'
Dependencies in 6 areas:
1. ICANN Budget: to reconsider or veto the budget regarding the IANA portion of the budget.
2, IANA Functions review: incorporated in the ICANN bylaws
3. Customer Standing Committee: incorporated in the ICANN bylaws
4. To be able to recall the Board, particularly regarding the reports and recommendations of the IANA Functions review
5. An independent appeals mechanism
6. Fundamental bylaws, that these dependencies are protected as fundamental bylaws
Asking that the CCWG meets these CWG requirements
ICG will issues a proposal for public comment on July 31 and wishes to know that the CWG dependencies will be met. The cross-check session on Saturday July 19 will address this.
The CWG is still to decide if the Post Transition IANA arrangement should be included in the ICANN bylaws, and how those bylaws should be drafted.
Is there a preference or requirement for the levels of enforceability from the CWG?
There are distinction between some of the technical issues and the procedural or management issues. Will take the question of level enforceability back to the CWG.
The CWG is concerned with the IANA budget rather than ICANN budget as a whole. And the CWG proposal notes would be helpful if the IANA budget were made faster than the overall ICANN budget
* Presentation based on the presentation on July 7 #39 Review of the members models
Likelihood of capture and the consequences:
Low under the designator model
Under the member model the consequences are higher as they have access to other powers
The sole member model, the likelihood and consequences are considered low.
The sole member would need to have some legal personhood, what is a decisions to be made. Unincorporated Associations being the simplest
Question for the CWG to consider: of the three models, are they all sufficient? CWG will take this on. From a legal perspective all meet the dependencies.
Is the goal to have a single reference model in the public comment, or three options? The CWG/ICG proposal relies on the model.
Goal is to have consensus forming by the end of the meeting tomorrow. With our goal not to reinvent but to refine.
The models must be able to deliver everything in the proposal.
Consideration of the independent objector, asked that information about this proposal is sent to the list for the group to consider and see if the proposal gains traction.
The information about relevant statutory rights is contained in a legal memo, information will be sent to the CCWG list.
Risk of statutory rights and derivative suits.
Designator model do not have those risks.
Member model, would have to be reduced by truncating rights in the bylaws
The sole member model the issues reduced by the structure, and through truncating rights in the bylaws
* WP3 Emerging issues
Three topics highlighted from the first public comment
SO/AC Accountability: who watches the watchers, with the enhanced power they wield
ICANN Staff Accountability:
Diversity
Three short papers developed by the sub-group distributed in the document package contain recommendations.
Assess whether the IRP should ask apply to SO/AC activities and should this be considered as WS1. Other issues suggested as WS2.
A clear definition of staff role as part of WS1. As an addition to the problem definition and scoping document.
Apply some recommended recommendations to staff, and consider as WS1?
Other issues suggested as WS2.
Note: not intending to micro-manage staff.
Diversity should be included as a consideration in an new structure in WS1. Other issues suggested as WS2.
WP3 as emerging issues, three suggestions:
1. Larry Stricklng's suggestion: the standard for board action, that a consensus has been reached in the communiyt
2. Kieren, some community power to hold hearings on a congressional inquiry style
3. Some sort of independent objector, with the power to initiate an IRP.
The community roundtable would be inline with point 2.
The proposes transitional bylaws article requires a commitment to implement. Was favourable received in the first public comment.
"Ensure" regional diversity in each of the new structures created. Ensure may be too strong a direction. But there should be some criteria to be taken into account when new structures are created.
Concern with increasing number of WS1 issues and short period of time to address them all.
Note: The standard for the IRP is did ICANN violate the bylaws by some action or inaction.
Documents Presented
FinalTransitionProposal_11June.pdf
Revised_ Empowered SO_AC Membership & Designator...pdf
StaffAccountabilityDraftProposalV1.pdf
SOACAccountabilityDraftProposalV1.pdf
Chat Transcript
Brenda Brewer: (7/17/2015 01:05) Welcome to CCWG ACCT Meeting #41, Session 1 on 17 July! 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
James Gannon [GNSO-NCSG]: (01:28) Morning eeryone, people are still filtering into the room here in Paris
Farzaneh Badii: (01:30) Morning James, thanks .
arasteh: (01:38) Welcome to dentis meeting in paris
arasteh: (01:38) This was the questioin raised to me if I am a member of the dentist group
arasteh: (01:38) I asked more clarificatioin
arasteh: (01:39) I was told that CCWG is known as ICANN dentis group
arasteh: (01:39) ???
James Gannon [GNSO-NCSG]: (01:39) Well sometimes it is like pulling teech
James Gannon [GNSO-NCSG]: (01:39) *teeth
Jordan Carter (ccTLDs): (01:40) I wonder if it would be easier to be a dentist than to be a member of this CCWG
arasteh: (01:41) Not in thast sense
arasteh: (01:42) The sense was that ICANN considers this groiup as dentist who make the most painful treatment
Grace Abuhamad: (01:43) Reading list is here: https://community.icann.org/x/54FCAw
James Gannon [GNSO-NCSG]: (01:43) Good dental hygene is never nice and often unpleasant but often nessesary to keep the overall body healthy.
Farzaneh Badii: (01:43) yeah but we have anesthetics
Bruce Tonkin: (01:45) One cosnideration with respect to a 2 minute timer - is to identify when there isw a substntaive new point being made, rather than responses to a new point. There is also a difference sometimes betwqeen those whose native language is Englsh and those that may have more difficulty expressing themselves in English.
Farzaneh Badii: (01:47) mic
Jordan Carter (ccTLDs): (01:51) The aim should be the most functional conversation
James Gannon [GNSO-NCSG]: (01:51) On substantative issues
Jordan Carter (ccTLDs): (01:54) +1 to what Mathieu is saying.
James Gannon [GNSO-NCSG]: (01:54) Yes a very important point
Malcolm Hutty: (01:56) too risky??
Grace Abuhamad: (01:57) You still have time to read :)
Grace Abuhamad: (01:57) Reading list is here: https://community.icann.org/x/54FCAw
Asha Hemrajani: (02:00) Asha Hemrajani - board member - attending remotely
Sébastien (ALAC): (02:01) We have also member participating online
Sébastien (ALAC): (02:01) Need to ask them too
Jordan Carter (ccTLDs): (02:04) 23 of 26 members and 2 of 2 listed "member" liaison in the room, pretty good
Hillary Jett: (02:05) For those who will be tweeting about the meeting over the next 2 days, please join the conversation by using #CCWGParis :)
Bruce Tonkin: (02:13) This is a helpful slide - thanks Lise Fuhr!
Bruce Tonkin: (02:13) It would be good to have an explicit response to these requirements that could be provided to the ICG.
Jordan Carter (ccTLDs): (02:14) Bruce: we talked yesterday in a prep meeting about a brief section of the CCWG second public comment report that explicitly addresses them
Bruce Tonkin: (02:17) Good to hear @Jordan.
Jordan Carter (ccTLDs): (02:17) WP1 may then have gone too far in its update to the Fundamental Bylaws section of this paper: https://community.icann.org/download/attachments/54690279/11.%20%202015-07-14-DRAFT-PC2--3-2-and-5-4--FundamentalBylaws.pdf?api=v2
Jordan Carter (ccTLDs): (02:18) (based on what Lise has said - for noting for discussion later)
Paul Rosenzweig (Heritage): (02:20) Yes
Bruce Tonkin: (02:20) Yes - Greg we can hear you clearly now.
Asha Hemrajani: (02:20) When Greg is speaking, there is a lot of echo.
David McAuley: (02:21) Greg's remote intervention is being fedback from room speakers
Grace Abuhamad: (02:22) Thanks @David. We are fixing the issue
Malcolm Hutty: (02:22) Very good question Athina. Disappointing (but not unreasonable or unexpected) that there is no clear answer
Sabine Meyer (GAC - Germany): (02:22) Will Lise's presentation be added to the reading list or sent to the list?
David McAuley: (02:23) Thanks Grace
Mathieu Weill: (02:23) @Sabine; good point, thanks !
Izumi Okutani (ASO): (02:24) On Jordan's question about PTI, is this something related to the names function only? If this goes into the fundamental Bylaws including the other functions I think we want to keep in mind about possible inconsistencies with proposals from other operational communities.
Jordan Carter (ccTLDs): (02:25) Izumi: yep. I asked because it made its way into the updated Fundamental draft -- we should take it back out
Izumi Okutani (ASO): (02:26) Sure undertood and noted
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:27) slide deck will be up shortly and we are staring with slide 5
Jordan Carter (ccTLDs): (02:29) "This community works on trust" in the current environment.
Bruce Tonkin: (02:30) I think one of the challenges with relying on "going to court" that this often translates into going to USA court. This works well for individuals and orgnaizations based inthe USA, but others outside of the USA would probably prefer to enforce in their national courts. SO as much as posisble I would like to see most of hte "appeal" mechansims to be based on panels wsith international members - much like UDRP. THe US Courts is always an option for those that want to take action against ICANN - but hopefully it is rare that this method is required.
Grace Abuhamad: (02:31) Slides are unsynnced
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:31) thx
Hillary Jett: (02:32) Lise's presentation on CWG-CCWG linkage has been added to the reading list: https://community.icann.org/display/acctcrosscomm/Reading+List+-+Face+to+Face+Paris
Sabine Meyer (GAC - Germany): (02:33) thank you!
Mathieu Weill: (02:33) Thanks Hillary !
Bruce Tonkin: (02:35) Hillary - please also send a linik through to the current presentation from the legal advisors.
Mathieu Weill: (02:36) The agenda includes links to the relevant documents Bruce : https://community.icann.org/download/attachments/54690279/CCWG-ACCT%20Paris%20Agenda_FINAL.pdf?version=1&modificationDate=1437088195000&api=v2
Sabine Meyer (GAC - Germany): (02:36) quick question on slide 19: what are the legal personhood requirements in the CMSM? will that sole member have legal personhood?
Grace Abuhamad: (02:36) All docs are here: https://community.icann.org/x/54FCAw
Grace Abuhamad: (02:36) Direct link to legal slides: https://community.icann.org/download/attachments/54690279/7.%20%20Revised_%20%20Empowered%20SO_AC%20Membership%20%26%20Designator%20Models%20with%20CM%20as%20Sole....pdf?api=v2
Thomas Rickert, CCWG Co-Chair: (02:37) Sabine, I will make sure this is answered after the presentation
Sabine Meyer (GAC - Germany): (02:37) thank you, Thomas!
Greg Shatan: (02:39) @Bruce, how would you suggest enforcing those appeal decisions, in the event that ICANN did not comply with the outcome? The only formal recourse I see is court. As you say, I would hope this is (very) rare.
Jordan Carter (ccTLDs): (02:39) So the single member model "fixes" the issue of individual members exercising statutory member rights like derivative lawsuits etc
Pedro da Silva [GAC Brasil]: (02:40) @Sabine: I assume that the CMSM would need to be a unincorporated association. But let's have Counsel answer that. :-)
Differance: (02:41) Can someone explain what the relevant statutes are here (re statutory rights)? The Bylaws
Differance: (02:41) Bylaws?
Differance: (02:41) intl law?
Grace Abuhamad: (02:41) Slides are unsynced again so that you can scroll
Differance: (02:42) if you have statutory rights, they derive from a statute
Jordan Carter (ccTLDs): (02:42) it'd be in the California non profit corporation code
Differance: (02:42) I see. So none of this is about recourse beyond statutory rights
James Gannon [GNSO-NCSG]: (02:42) http://www.leginfo.ca.gov/.html/corp_table_of_contents.html
Greg Shatan: (02:43) Who is "Differance"?
Differance: (02:43) I'm Seth Johnson
Avri Doria: (02:43) One question I still do not understand under the 3 models is to what degree are the SOAC still accountable to the Board , the mutual accountabitly of the model, vis a vis their charters.
Differance: (02:43) Generally with Internet Distinction
Jordan Carter (ccTLDs): (02:44) Avri: how do you mean, accountable to the Board?
Grace Abuhamad: (02:44) Thanks Seth
Mathieu Weill: (02:44) @Avri: that was one of the topic WP3 worked on. We'll get to that later indeed
Avri Doria: (02:44) The Board currently approves charters for all the SOAC in the Bylaws. Does this remian the case in all the models.
Jordan Carter (ccTLDs): (02:45) The "charters" are actually in the bylaws, right?
Mathieu Weill: (02:45) ok I see, please raise the question
Avri Doria: (02:45) yes and no, they may be split between bylaws and operting procedures, but the Board has a role in both.
Mathieu Weill: (02:46) (and I think yes, that remains in all models)
Avri Doria: (02:49) ok, if you say so. it may come up again if we ever take up the subject of SOAC accountabity. how can a member be accountable to the board?
Chris Disspain: (02:49) @ Paul, I undertsnad your pont but I think Alan's issue is more that in CHOOSING the model we should tke into account Sos or ACs that won't participate
James Bladel: (02:50) Agree with Paul. We cannot build an electoral system that grants powers to non-participants.
Avri Doria: (02:50) on the Independent Objector, we need to consider how well that worked out in the new gTLD process. Many of us have our doublts.
James Bladel: (02:51) Strike "electoral" from my prevoius comment. Was trying to make an analogy to non-voters in the US.
Greg Shatan: (02:51) I would think that, if/when a "legal person" is created, its Charter or Articles of Incorporation would need to be an independent document and not part of the ICANN bylaws.
Samantha Eisner: (02:51) I think that independent objector role that Bruce is discussing is not dependent on a membership model and could be enacted outside of that
Becky Burr: (02:51) Many folks thought the independent objector had been captured
Avri Doria: (02:52) Becky, i did not think it worked, but dod not think of it as captured. Captured by whom?
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:53) yes ...personally I think therefrom would be considerably less trust in an Ind Object option
Malcolm Hutty: (02:53) I object to the sole focus on empowering community SOACs. whatever the merits of Bruce's suggestion, Thomas shouldn't rule it out on the grounds that it might benefit members of the community directly instead of just SOACs
George Sadowsky: (02:53) Malcolm, +1
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:53) that said we now still need to ponder this further
Paul Rosenzweig (Heritage): (02:54) @Chris -- I agree -- we should take Alan's objection into account to the model. But if, after the community chooeses, a group dissents and withdraws from the chosen model, that is not a "risk" of capture ... that's their decision to absent themselves
Anne Aikman-Scalese: (02:54) It would seem to be important to define the "Community" in connection with this "community as sole member model". There will be a question about new entrants into "the Community" and how they gain access and influence. Will this remain the same as is currently provided?
Avri Doria: (02:54) the problem with the IO idea, is that someone, often with no consept of community standards and viewpoints, is charged as the single know it all and gets to make decsions with no basis in the community.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:55) indeed @avri
Keith Drazek: (02:55) I thought Thomas was objecting to allocating power in an individual, as opposed to the community. Not the SOs/ACs per se.
Keith Drazek: (02:55) I'm having terrible connectivity issues. Anyone else?
Jordan Carter (ccTLDs): (02:56) Chris: in terms of participation in discussions, is there any pattern in the Board of partial participation on key questions?
Jordan Carter (ccTLDs): (02:56) Or in the ccnSO?
David McAuley: (02:56) Connectivity here is good but audio slips every now and then
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:56) nope all good for me @keith
Jordan Carter (ccTLDs): (02:56) just wondering if it's something that happens a lot in ICANN
Chris Disspain: (02:56) Not sure I understand Jordan
Chris Disspain: (02:57) oh I see....
Leon Sanchez (Co-chair ALAC): (02:57) @Izumi you are ultimately right but let's not forget that we were requested by the NTIA to discuss all available models so this is part of what we need to do as part of how we reach to the conclusion on whether each of the models actually addresses the CWG dependencies
Jordan Carter (ccTLDs): (02:57) re the "people won't participate, so it might be captured" issue
Rinalia Abdul Rahim: (02:57) Can the Single Member model accommodate new structures formed within ICANN (eg, new ACs, etc)?
Chris Disspain: (02:57) understood...
Jordan Carter (ccTLDs): (02:57) just trying to ask if it's a common thing?
Lise Fuhr: (02:57) @Holly I agree the CWG should not decide on the CCWG model
Chris Disspain: (02:57) no...but I think we are talking about different things...
Sébastien (ALAC): (02:57) As I was not able to come back to speak ;)
Leon Sanchez (Co-chair ALAC): (02:57) @Rinalia would you like to make the question in the mic?
Sébastien (ALAC): (02:58) I still have concern with Budget and with remove recall the Board
Jordan Carter (ccTLDs): (02:58) Good question to ask Rinalia and get the lawyers to speak to, if poss? (or is the speaking lsit closed?)
Chris Disspain: (02:58) I think Alan was talking about ACs or SOs who say we wont participate ion model A but will in model B
Jordan Carter (ccTLDs): (02:58) Chris: ah, oK
Avri Doria: (02:58) Lise i agree with you agreement. the CWG does not have the context for making this determination.
Chris Disspain: (02:58) as Alan is saying now
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:58) correct as far as I know
Avri Doria: (03:00) single memebr does seem to be the least complex. is that an illusion?
Paul Rosenzweig (Heritage): (03:01) Avri, you mean "sole member"
Paul Rosenzweig (Heritage): (03:01) Yes?
Avri Doria: (03:01) yeah sole member seems least complext.
Paul Rosenzweig (Heritage): (03:02) Agree .... It more or less makes the CCWG a permanent standing body of community accountabilyt oversight
Mathieu Weill: (03:03) @Paul : that sounds like an argument AGAINST the model ;-)
David McAuley: (03:04) Thomas, will voluntarily take those measures (bolting door etc) here at home
Avri Doria: (03:04) Kavouss, It is a not so much a new proposal, but a variant on the existing member proposal, taking into account the inability or unwillingness of all SOAC to become members.
Chris Disspain: (03:04) Chairs, are we going to have a discussion soon about the actual model or are we doing that now?
Paul Rosenzweig (Heritage): (03:04) Fair enough ... needs something for the GAC
Jordan Carter (ccTLDs): (03:04) It would give the community council the powers of a member
Mathieu Weill: (03:05) @Chris ; we have another session for that purpose later today
Differance: (03:05) Well . . . not everything. But lots that people are addressing this way
Anne Aikman-Scalese: (03:05) Many governments unlikely to be able to opt into membership in the "sole member".
Differance: (03:06) (not everything needs to be addressed by the model)
Differance: (03:06) (just lots :-) )
James Gannon [GNSO-NCSG]: (03:06) Anne yes and thats something that is veyr important, Im not sure where the GAC would stand on this model if it requires all SOACs to be part of the community council
Jordan Carter (ccTLDs): (03:06) Being clear on the legal implications of it would be important -- there would be no "membership" of that single member
Bruce Tonkin: (03:06) I have sent my suggestion to the CCWG mailing list.
Becky Burr: (03:07) I don't really understand the concern. no SO or AC would need to acquire legal personhood to participate. The GAC and all other SO/ACs participate in ICANN, which is a legal person under Califfornia law
Jordan Carter (ccTLDs): (03:07) It would be precisely analogous to GAC membership and participation in ICANN today, as far as I can work out
Anne Aikman-Scalese: (03:07) all Sos/AC together would be one legal person under the third model
Avri Doria: (03:07) btw, who is Difference?
Differance: (03:08) I'm Seth Johnson
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (03:08) yes Anne
Jordan Carter (ccTLDs): (03:08) no. there would be a legal person in which they participated.
Becky Burr: (03:08) no - the community mechanism would be the member. SOs and ACs would stay exactly as they are
David McAuley: (03:08) Good point Becky
Differance: (03:08) Hello! Seth Johnson
James Gannon [GNSO-NCSG]: (03:09) Difference if you click the dropdown to the right of the attendees title you can change your screename
arasteh: (03:09) The community will be totally mislead and confused
Anne Aikman-Scalese: (03:09) How is the "community mechanism" a single legal person? It is in fact several SOs and ACs deliberatin and interacting. the "mechanism" itself is not a legal person I think - this is unclear.
Paul Rosenzweig (Heritage): (03:09) Actually, I think Becky is right. GAC participation in the sole member group would be on exactly the same footing as it is right now both with ICANN and with the current CCWG
Becky Burr: (03:09) why mislead Kavouss?
Jordan Carter (ccTLDs): (03:10) Anne: it would be a body under the bylaws, like the SOs and ACs are now
Jordan Carter (ccTLDs): (03:10) arguably, the SOs and ACs now could define themselves as legal persons
Differance: (03:10) @jordan: no, not precisely at all. a legal person has those CA rights, whereas GAC always has a lot
Anne Aikman-Scalese: (03:10) Yes Jordan - once it is a "body", the GAC members will have trouble I think being a part of that body but I am not sure.
arasteh: (03:10) It is difficult to state that the requirements as defined by CWG in terms of accountability are met as there are various unanswered questions
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (03:10) and 'it' the single member is an amalgamation
Jordan Carter (ccTLDs): (03:11) Anne: there should be no difference to the question of "joining" the GAC or not
Becky Burr: (03:11) just like "ICANN" community
arasteh: (03:11) I will declare that at ICG and strongly request to include a statement about viabiliuty and workability of the proposed course oif action
Anne Aikman-Scalese: (03:11) Not "joining the GAC", but rather the GAC joining the new "body" that is the legal person that represents the "community mechanism"
arasteh: (03:12) The issue is quite ambigeous , uncvlear and misleading
Jordan Carter (ccTLDs): (03:12) nobody will "join" that group, though, Anne.
Jordan Carter (ccTLDs): (03:12) there'd be seats at the table set out in the bylaws, is the sum of it.
Becky Burr: (03:12) there is no formal "joining" - the GAC just participates - as it participates in ICANN now
Anne Aikman-Scalese: (03:12) @jordan - then how is the legal person defined precisely?
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (03:13) no barriers to participation is the key
Becky Burr: (03:13) it is identified in the bylaws
James Gannon [GNSO-NCSG]: (03:13) But would it not have to vote formally to exercise its powers witin the CMSM?
Becky Burr: (03:14) James - not sure i understand the question - vote on an issue, e.g., vote to reject bylaw change, yes.
Differance: (03:14) @Anne: (taking the lawyers at word) the legal person is a fiction that creates an entity that hold recognized powers under CA statute. I guess it is declared in certain was in the bylaws
Paul Rosenzweig (Heritage): (03:14) Yes, Anne -- does GAC have problems now as part of the ICANN community?
Anne Aikman-Scalese: (03:14) @Becky - identified in the By-Laws how? As a legal person consisting of the SOs and ACs or as a legal person consisting of the processes the community follows? Not sure how the second option constitutes a legal person.
Jordan Carter (ccTLDs): (03:14) The legal person declaration is only relevant if the Board started ignoring what the community council was doing
James Gannon [GNSO-NCSG]: (03:15) @Becky Yes agreed and my concern is that that may be an issue for the GAC
Anne Aikman-Scalese: (03:15) @Jorda - my understandinding is that third model involves legal personhood from the beginning and that is in the chart - perhaps I am wrong about this.
Samantha Eisner: (03:16) Anne, that's my understanding too
Becky Burr: (03:16) we should discuss them
Keith Drazek: (03:16) None of the 3 options would change the day-to-day workings of ICANN or the ICANN community's engagement. In response to Lyman's comment, in my opinion, these possible models really wouldn't change the attractiveness of participation in ICANN.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (03:17) agree Keith
arasteh: (03:17) If these questions are not answered would be difficult to take aboyut a valid , viable and workable Model
Anne Aikman-Scalese: (03:17) It appears to be a real advantage to have legal personhood clear from the start of the transition but the question of GAC membership in this legal person is a potential obstacle.
Jordan Carter (ccTLDs): (03:17) true
Lyman Chapin: (03:18) Does option for SOs/ACs to become legal persons create any difference in the CMSM between "legal person" and "not legal person" SOs/ACs?
Becky Burr: (03:18) @Anne - I don't think there is any requirement that the GAC become a "member" - what is needed is that the GAC participate in the process
Becky Burr: (03:19) the status of the individual SOs/ACs is irrelevant in the single member model
Avri Doria: (03:19) i think i start to appreciate the sole member model more and more.
Anne Aikman-Scalese: (03:19) @Becky - I do not think a process is a legal person but this is up to the outside lawyers to advise. A legal person has a definition I think.
Lyman Chapin: (03:20) @Becky Slide 19 "concerns" --> "SOsand ACsthat have personhood may enforce rights given to them in Bylaws under bylaws-as-contract theory"
Greg Shatan: (03:20) Anne, the GAC would not have to "join" the sole member, so the issue of joining is not relevant.
Greg Shatan: (03:20) Anne, what Becky means is the decision making process of the sole member.
Anne Aikman-Scalese: (03:20) @Greg - agree but how is legal person defined?
Avri Doria: (03:20) i like the fact aht it prepresents the whoe ICANN Community in a single voice.
Jordan Carter (ccTLDs): (03:20) Avri, me too
Greg Shatan: (03:21) Anne -- by statute.
James Gannon [GNSO-NCSG]: (03:21) Agreed avri and Jordan
Becky Burr: (03:21) yes, but they can only enforce on behalf of the community mechanism
Samantha Eisner: (03:21) @Greg, I think that goes to the issue that Alan was raising - if we're going to model where some say they will not join, should we take that into account for the consideration of the various models?
Jordan Carter (ccTLDs): (03:21) i also like it has teeth, but the mouth the teeth are in is controlled by the whole community (to use a horrible metaphor)
Keith Drazek: (03:21) I agree Avri. The exercise of the powers/authority should represent the will of a significant portion of the community structures.
James Gannon [GNSO-NCSG]: (03:21) I think it provides a very powerful single voice at times when we need a strong voice (Enforcement)
Anne Aikman-Scalese: (03:22) Greg - tautological response is "by statutue". Specifically in this case, how would the By-Laws define the legal person we are calling the "Community Mechansim"?
James Gannon [GNSO-NCSG]: (03:22) @Jordan ties back into our dentist title =)
Lyman Chapin: (03:22) @Jordan Can you work a reference to "root canal" into that metaphor?
Becky Burr: (03:22) Sam, I am sure that there is no requirement to "join" or become a "member" - the only issue is participation, and it is no different than the fact that the GAC participates in ICANN (a legal person) today
Jordan Carter (ccTLDs): (03:22) Lyman: gimme five ;)
Sivasubramanian M phone 2: (03:22) Community Accountability may have to be considered a prerequisite for Community Empowermeny
Jordan Carter (ccTLDs): (03:23) Anne: I'd imagine it would look like the rules for the Board, or the ccNSO Council, or the GNSO, as in the bylaws now
Avri Doria: (03:23) Can such a sole member be constrained to work by consensus or would it need a complicated voting mechanisms with 75% rules or some such.
James Gannon [GNSO-NCSG]: (03:23) @Becky, but the GAC voting within the CMSM is a difference is it not? Just reading the GAC input doc it seems some govs have issues with the GAC voting in any mechanism
Seth Johnson: (03:24) re gac voting: that's one of the stress tests
Greg Shatan: (03:24) Anne, it would not need to be defined in the bylaws. The bylaws only need to state that ICANN is a membership corporation. The sole member would be a separate legal person (eg, a California unincorporatede association) that would have its own articles of association and bylaws.
Becky Burr: (03:24) i think it can have whatever operational rules it wants - although the proposed community mechanism does have voting thresholds now
Mathieu Weill: (03:24) Are the hands raised old hands ?
Keith Drazek: (03:24) If Lyman is feeling a root canal after just one CCWG meeting, how horrible for those participating from the beginning! ;-)
Anne Aikman-Scalese: (03:25) @Becky - I believe in fact it is different because there will be a new legal person with certain rights. It will not be the same as today.Presumably it will actually be better - single community voice as Avri points out - but only if GAC can participate effectively in the new legal person.
Avri Doria: (03:25) my natural preference is a consensus mechansims and that unless there is consensus then let the board keep doing its balancing act.
Seth Johnson: (03:25) ? I thought each SO/AC was their own legal person?
Keith Drazek: (03:25) I agree Avri
Greg Shatan: (03:26) GAC participation in the sole member could be advisory along the lines of its advisory role with the Board. That is one of the threads of discussion I see in the GAC document recently distributed.
Seth Johnson: (03:26) set up to act in the icann person
James Gannon [GNSO-NCSG]: (03:26) I would suggest that it might eb preferable from the GACs perspective (Not putting words into their mouths) to advise the CMSM rather than participate in it directly no?
Greg Shatan: (03:26) Seth, the SO/ACs are not currently legal persons.
Samantha Eisner: (03:26) @Greg, how that member is defined (be it in the Bylaws, or in its own Articles/Bylaws) would definitely go to the issue of future change. If ability to participate in the membership model (community vote) is left to an organization wholly outside of ICANN and recognized as a member of ICANN in the ICANN Bylaws, what does that mean for the ICANN community?
Seth Johnson: (03:26) Supposedly the GAC being advisory through consensus is preferable to their voting
Anne Aikman-Scalese: (03:27) @Seth - I think the new sole member model is about having only one new legal person as opposed to many. This provides protection against one SO/AC "upsetting the apple cart" with unilateral action.
Samantha Eisner: (03:27) How do we hold that separate entity open to a requirement of embracing future change?
Seth Johnson: (03:27) I thought each community was a sole person? whereas the othe two were approaches to people becomeing legal persons themselves
Greg Shatan: (03:27) Samantha, the member would be controlled by the SO/ACs. I think this is detail work.
Becky Burr: (03:27) @Anne - yes, there is a new entity, and it has legal personhood, but I'm not sure why that is not analogous to participating in ICANN?
Pedro da Silva [GAC Brasil]: (03:28) @James: There is no consensus about this. Some govs are in favor of the GAC participating in the mechanism as a voting entity and some are not. Needs to be further discussed if we can find a common ground.
James Gannon [GNSO-NCSG]: (03:28) Or we could tweak it that the SO's form the member while the ACs formally advise the CMSM, basically formalise the esisting SO/AC dynamic
Greg Shatan: (03:28) @Becky, I guess the analogy is that the community can't seem to control ICANN either....
James Gannon [GNSO-NCSG]: (03:28) @Pedro understood, I think its an important thing to work through
David McAuley: (03:29) Leon, did WP3 define the concept of diversity?
Pedro da Silva [GAC Brasil]: (03:29) @James: agree.
Asha Hemrajani: (03:29) Apart from regional diversity, what other forms of diversity will be considered?
Greg Shatan: (03:29) But the analogy falls apart because the new entity would not have a staff, etc. -- it would act only if and when instructed to act by the SO/ACs.
Seth Johnson: (03:29) (Maybe OT here) Question: I have CCWG-Jurisdiction under this agenda heading? Will that be discussed elsewhere?
Benny / Nordreg AB: (03:30) speak up
Benny / Nordreg AB: (03:30) louder
Holly Gregory: (03:30) Agree Becky. Participating in sole member is really not different from participating in ICANN from a legal perspective
Greg Shatan: (03:30) Agree with Holly.
Seth Johnson: (03:31) I just don't see what the GAC gets from the legal personhood. I guess to operate in CA law?
Keith Drazek: (03:31) Fortunately, none of the proposed models require the GAC (or anyone else) to make a decision regarding modes of participation at this time. It would only become necessary if/when the enumerated powers needed to be initiated and enforced.
Seth Johnson: (03:31) GAC internationally wouldn't have to worry about that (being a CA legal person)
Jordan Carter (ccTLDs): (03:31) what the community gets from the single member legal person is, the rights that members get in enforcing the community powers
Jordan Carter (ccTLDs): (03:32) it seems like an elegant way to deliver that, without the downside of individual SO or AC members going rogue
Holly Gregory: (03:32) No legal personhood required of any group to participate in CMSM
Jordan Carter (ccTLDs): (03:32) and participation in the CMSM creates no obligations on participants, right?
Seth Johnson: (03:32) And the CMSM is in the bylaws?
Greg Shatan: (03:32) Jordan, its not merely enforcement. It is the unique relationship of a member to a nonprofit corporation, with regard to authority vis a vis the board and the organization.
Steve DelBianco [GNSO - CSG]: (03:32) the ACs and SOs exist only because the ICANN bylaws created them. So if a structural review of an AC or SO changed bylaws regarding that AC/SO, then an IRP could rely on the bylaws to assess the AC/SO action
Jordan Carter (ccTLDs): (03:32) Greg - +1
Seth Johnson: (03:33) Aren't we doing these models because the notion is using CA law to do these powers -- declaring them in the bylaws
Seth Johnson: (03:33) GAC can still participate. Other parties/groups are being given a statutory basis for powers, added to the bylaws
Avri Doria: (03:35) isnt that IO already personaified in the Ombudsman, and would this not be a power to be discussed in wS2
Becky Burr: (03:35) @ Seth - not sure I understand the question about what the GAC gets?
Paul Rosenzweig (Heritage): (03:35) @Avri -- the Ombudsman would not have legal power to go to court; that is the essence of Bruce's idea, I think
Seth Johnson: (03:35) I don't see the GAC needing the legal personhood. Unless the GAC is looking for the same powers.
Avri Doria: (03:36) Malcolm statement indocated going to the IRP.
Seth Johnson: (03:36) And I don't know the GAC needs legal personhood for that
Seth Johnson: (03:36) they already hold powers. add a provision to the bylaws, no special personhood needed
Becky Burr: (03:36) The GAC has no need to seek legal personhood under any of the models
Stephanie Petit (Adler): (03:36) If helpful, here are links to some relevant background documents:
Seth Johnson: (03:37) right. the special problem as I understand it is the (very american/West) desire for recourse vs governments.
Seth Johnson: (03:37) The notion is CA lets that happen by these types of personhood
Seth Johnson: (03:38) (BTW, I *strongly* support the resist gov orientation --it's the only real form of recourse there is)
Stephanie Petit (Adler): (03:38) Sorry, meant to include these: Link to Member Rights Chart: https://community.icann.org/download/attachments/52890082/Response%20to%20Samantha%20Eisner%20Member%20Rights%20Chart.pdf?version=1&modificationDate=1433828616000&api=v2Link to Executive Summary to Member Rights Chart: https://community.icann.org/download/attachments/52890082/Executive%20Summary%20to%20Member%20Rights%20Memorandum%20%2800687222xA3536%29.pdf?version=1&modificationDate=1434461362000&api=v2
Seth Johnson: (03:39) (I don't see legal personhood s the only approach -- just engaing in the terms given, here
Becky Burr: (03:39) but the GAC can remain whatever it is now and enjoy all the benefits if it decides to participate. Of course, the GAC may prefer to remain an advisory body. Or to remain an advisory body for the time being.
Becky Burr: (03:40) we can build extended time for the GAC to decide at some point down the road to participate in the community mechanism
Jordan Carter (ccTLDs): (03:40) participate in it, participate to provide advice in it, to advise it
Holly Gregory: (03:41) Member Rights chart circulated by Stephanie presents statutory rights
Seth Johnson: (03:41) (The notion is CA gives that recourse via legal personhood -- with ref to corporate form, I note)
Becky Burr: (03:41) right Jordan - the GAC can advise anybody it wants to advise, including the community mechanism
Seth Johnson: (03:42) Right.
Seth Johnson: (03:43) (though I think there are protocols about exactly what kind of advice via what channels will be responded to by process)
Seth Johnson: (03:44) (as in icann is supposed to respond to gac advice
Greg Shatan: (03:44) Alan, I agree with your discomfort and concern with "ensuring".
Steve DelBianco [GNSO - CSG]: (03:45) +1 ALan
Greg Shatan: (03:45) I think some wanted to test the word "ensure" in this meeting.
Greg Shatan: (03:45) It may have been a bad choice of words, but ti was an explicit choice.
Greg Shatan: (03:45) Which I disagree with.
Greg Shatan: (03:46) I also think it needs to be softened.
Becky Burr: (03:46) Kavouss - no one is suggesting to apply IRP to the staff - but actions and/or inactions of staff in violation of IRP is subject to IRP. It would be the obligation of the Board to enforce any IRP declaration that relates to staff actions
Alice Munyua (GAC): (03:47) Yes would also like to see clarity on the question posed by Chris. Who is the ICANN communinity?
Jordan Carter (ccTLDs): (03:47) Can some of the topics in this WP3 be put in as subject matter for
Jordan Carter (ccTLDs): (03:47) oh, Chris said what I was just going to type
Jordan Carter (ccTLDs): (03:48) for the next ATRT to consider? :-)
James Gannon [GNSO-NCSG]: (03:48) +1 Jordan
Anne Aikman-Scalese: (03:48) @Holly - GAC participating in sole member is quite different from current ICANN process - highly desirable that is agreed but currently the GAC only advises the Board - it does not "vote" in a sole member that constitutes a legal person.
Izumi Okutani (ASO): (03:49) good point Jordan
Holly Gregory: (03:49) Understood @Anne
Jordan Carter (ccTLDs): (03:49) I have a general bias against us adding new topics to WS1
FIONA ASONGA (ASO): (03:50) +1 Jordan
Athina Fragkouli (ASO): (03:50) +1 Jordan
Asha Hemrajani: (03:50) +1 Jordan
Malcolm Hutty: (03:51) well said Becky
Paul Rosenzweig (Heritage): (03:51) +1 Becky -- exactly
Alice Munyua (GAC): (03:51) Thnak you Becky
Jordan Carter (ccTLDs): (03:51) +1 Becky
James Gannon [GNSO-NCSG]: (03:51) +1 Becky
Steve DelBianco [GNSO - CSG]: (03:51) Very helpful, Becky
Greg Shatan: (03:52) @Anne, how GAC would participate is still an open question. But its ability to participate is not subject to the same issues as were raised earlier.
Becky Burr: (03:53) ICANN can be held accountable for the actions of its staff through the bylaws to the extent that action violates the Bylaws
Sabine Meyer (GAC - Germany): (03:53) Greg, could you elaborate on that a little?
Grace Abuhamad: (03:53) COFFEE BREAK. 15 MIN
Seun Ojedeji: (03:53) Thanks Grace
