Session #3 -- Taking stock session (including discussion of potential Chair’s report)

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Transcript

Transcript CCWG ACCT #3 20 Jan.doc

Transcript CCWG ACCT #3 20 Jan.pdf

Recording

The Adobe Connect recording is available here: https://icann.adobeconnect.com/p3bibxyuokj/

The audio recording is available here:  http://audio.icann.org/gnso/gnso-ccwg-acct-3-20jan15-en.mp3

Notes: 

Tuesday, 20 January -- session 3 (starting UTC)

Discussion about "uber" committee, its structure, function, interaction with the Board.

There are two avenues: 

• One concerns a last resort power.
• Second it strengthening the independent review and redress mechanisms

and in parallel, each avenue will have different requirements in terms of independence, in terms of operation, how independence is achieved and how they  achieve representativeness.

--> Could we divide work on these two items?

Comment: Don't mix bottom-up policy development and a potential dissatisfaction with implementation of that policy.  The mechanism should not undermine the bottom-up policy development process.

Structure of work .

To deepen cooperation with WA3, ongoing.

Definition and scoping document, to be circuited for review shortly.

Circulate to the advisors for their review and comment.

A short scoping exercise on what is meant by Avenue A and Avenue B:

- community empowerment with limited, strictly enumrated, last resort powers (collective)

- evolve IRP into independent review & redress (individual decisions)

For Ave A and Ave B, to scope the questions that might be sent for legal advice, about what we want to achieve.  Very simplistic example:  under CA law, how could a community remove a board member?  (must be refined)

Candidates as Rapporteurs for:

Community empowerment avenue:  support from Steve DelBianco and Jordan Carter

Review and Redress avenue: Becky Burr

Seeking rapporteur for ave 1. 

Singapore:  Two 3 hours CCWG working sessions, Monday 16:00-19:00 and Thursday at 07:00-10:00.  Community engagement, Wednesday 10:30-12:00

Colleagues, strongly encouraged to engage with their constituencies to provide feedback on our work, particularly after Singapore on contingencies, definitions, work avenues etc.

Test the avenue approach, will the community be satisfied if these approaches were implemented prior to the transition?  Enough, too ambitious, not enough?

Chat Transcript

Josh Baulch: (1/20/2015 06:46) For those of you online, we will likely get started at the top of the hour.  Thank you!

  David McAuley (GNSO): (06:49) ok thanks Josh

  Matthew Shears: (07:09) the powers of this committee+ really do need to be clearly circumscribed

  David McAuley (GNSO): (07:09) Standing panel is actually in bylaws but not put into effect

  Robin Gross [GNSO-NCSG]: (07:10) Agreed, Matthew, while I want it, we need to keep it very narrow in its scope

  Avri Doria: (07:10) there was not ATRtT recommendation for an overpanel of any sort.

  Jordan Carter (.nz): (07:11) It def has to be carefully specified and lightweight.

  Robin Gross [GNSO-NCSG]: (07:11) totally agree, Jordan

  Leon Sanchez (Co-Chair-ALAC): (07:12) Initially we could say that the powers would be limited to what we have scoped as WS1 requisites/items

  Jordan Carter (.nz): (07:12) well, we have to set out bylaws changes I would have thought, so it'll be clear what is and is not within its power

  Robin Gross [GNSO-NCSG]: (07:13) Did we say we wanted it to be a panel or a committee?  Haven't we been talking about this so far as "community"?  We need to consider how this community translates here.

  Leon Sanchez (Co-Chair-ALAC): (07:14) @Jordan when implementation comes, bylaw changes might or might not be necessary. For the time being, we could continue discussion around this and how to make it happen

  Bruce Tonkin: (07:15) Keith - I think you need to clarify that this is really your statutory membership body that has some limited powers that would normally be held by members in a membership organization.

  Keith Drazek: (07:15) Yes

  Leon Sanchez (Co-Chair-ALAC): (07:15) Agree @Robin, so far we've been refering to the outcome as "mechanism" which not necesarily will have to be a committee

  Robin Gross [GNSO-NCSG]: (07:15) I'm not sold on the membership body model.

  Bruce Tonkin: (07:15) I recommend the chairs bring up their "Community" slide again - just to help people understand that you are using "Community" with a capital C - not in the normal understanding of that term.

  Mathieu Weill, ccNSO, co-chair: (07:16) @Bruce : which slide ? do you mean yesterday's document ?

  Bruce Tonkin: (07:16) AS I understand it so far, the proposal is to have an "ICANN COmmuniyt represenative" committee - much like the way the GNSO works.   Each SO and AC directs the votes of the  committee, and it has some limited powers.

  Bruce Tonkin: (07:17) GNSO Council works I should say.

  Avri Doria: (07:17) but we have not created any such thing yet. 

  Bruce Tonkin: (07:17) I think there was a document this morning that used the term "Community" ie your first document today I think.

  Edward Morris: (07:18) Thanks Keith

  Avri Doria: (07:18) but Community does not mean committee.  it could just mean we go to the ACSO, and get the approlval of SOs, and the absence of advice from ACs. 

  Jordan Carter (.nz): (07:18) I don't yet have a view about a membership system or a body. I have said I think membership is a system easily compatible with ICANN's existing structure and the law under which it operates. it isn't the only one tho.

  Alan Greenberg (ALAC): (07:18) I presumed that it was the "membership" or the "oversight board" or a new body with reps from AC/SOs

  Avri Doria: (07:19) we have not agreed to any oversight board.

  Jordan Carter (.nz): (07:19) we haven't agreed to anything

  Chris Disspain: (07:19) I have ;-)

  Avri Doria: (07:19) and we have not agreed on membership as a solution. 

  Jordan Carter (.nz): (07:20) that counts as anything. ;)

  Izumi Okutani (ASO): (07:20) On Keith's point I like the idea of being an escalation poing to address redress question, on a defined limited area

  Avri Doria: (07:20) jordan we did agree to the list of stuff that was sort of maybe in WS1

  Jordan Carter (.nz): (07:20) well yes

  Jordan Carter (.nz): (07:20) but not to any substance resolving any of them

  Sivasubramanian M: (07:21) In the membership proposal, how do you visualize selection of members in a membership organization and how are the members to be short listed for positions of responsibility?

  Avri Doria: (07:21) i think we should be careful talking about committees and such as if they were real.  i worry about things creepiing into the plan as defacto entities.

  Keith Drazek: (07:21) Agreed Avri, we have not agreed that membership is the solution, but it's something I believe we should strongly consider. It's a lot better than creataing a new super-board that would just shift the challenges we'rer dealing wtih to a new layer.

  Avri Doria: (07:21) i  do nor see why we need either.

  Leon Sanchez (Co-Chair-ALAC): (07:22) @Jordan you're right but one of the things we should do, I think, is to explore the different ways intho which we can translate the items in the list to actual action

  Robin Gross [GNSO-NCSG]: (07:22) I don't recall us agreeing to create a new "body" of any sort - whether membership body or super board, or panel, etc.

  Jordan Carter (.nz): (07:22) yep agree

  Avri Doria: (07:23) isn't one of the quesitons to legal was whether we even needing anytig to achieve what we want to achieve.  i think we should try to be minimalist about things and not build anythig we don't need to achieve the goals.  our bureaucracy is already maxed out.

  Sivasubramanian M: (07:23) Why do we see the recurrence of the phrase "Super Board"?  If there is an additional organ to be created at the top level of the organization, why do we make the notion rigid by naming it "Super Board"?

  David McAuley (GNSO): (07:24) Keith’s description was useful in considering membership model – agreed that membership model has not been formally adopted by this group but this was good for discussing it – and I thought one of the issues to present for legal advice was whether ICANN can be ruled by membership in Cal.

  Alan Greenberg (ALAC): (07:24) @robin, we have not, but if we want to invoke the actions we discussed earlier, we need to have some way of doing that, and likely first getting some level of agreement to do that.

  Avri Doria: (07:24) yes, Leon, I agree.  we need to figure out how to do what wwe need to do.  but we should not assume we need new entities unless abslutely positively necessary.

  Izumi Okutani (ASO): (07:24) I do not recall about agreeing either and my understanding is we are discussing some details for one of the possibilities

  Keith Drazek: (07:24) This is exactly why we need the independent legal expertise we discussed yesterday afternoon...sooner rather  than later.

  Bruce Tonkin: (07:25) We need to be careful about endless end runs around policy development processes.

  Robin Gross [GNSO-NCSG]: (07:25) should we looking at creating processes (as opposed to creating entities).

  Cheryl Langdon-Orr (ALAC-AP Region): (07:25) agree @kieth

  Avri Doria: (07:26) Keith yep.  i think we should try to achieve as much of what we need to do with modifications to existing entities.  if, at the end of the day we cna't achieve our goals without creating som enew entitiy, that is the time to design it.

  Cheryl Langdon-Orr (ALAC-AP Region): (07:26) yep

  Steve DelBianco: (07:26) @robin -- its mostly about creating processes, but also about deciding who/how can exercise those processes

  Keith Drazek: (07:26) Agreed Avri.

  David McAuley (GNSO): (07:27) Agree @Steve

  Izumi Okutani (ASO): (07:27) I agree with Avri

  Robin Gross [GNSO-NCSG]: (07:27) Steve, is it putting the cart before the horse to decide who/how can exercise the process (without first creating the process we are referring to)?

  J: (07:28) @Robin, structure might be dictated by standing

  Matthew Shears: (07:28) Lets fugure out how we acheive these accountability changes and then see what the best vehicle is for doing so - we may well find that new processes, etc., are needed

  Jordan Carter (.nz): (07:28) I was just trying to describe the area of accountability that's missing and that membership or a supercommittee or whatever might be ways of implementing it. What I'm sure of is that there's nothing there at the moment.

  Steve DelBianco: (07:28) @Robin -- I think we should design them in parallel.   That's the work team split that Mathieu is proposing

  Keith Drazek: (07:29) +1 Jordan....a membership structure is just one option, but it's likely the most effective option available to us under CA law (if we can't create processes to achieve the same goals)

  Jordan Carter (.nz): (07:29) creating processes doesn't easily reverse the presumption that the Board in the end is the authority. At least, in my opinion it doesn't.

  Jordan Carter (.nz): (07:30) You might be able to make complicated and difficult processes that replicated a simple membership structure. I don't know. But looking for advice about how best to do this does seem useful.

  Avri Doria: (07:30) i think membership is super hard, uber hard if you like, since we have no idea how to create membership with the proper balance.. as for a super committee, if you mean a stand CWG, ok, if you mean a board level thingies, that just compounds our accountabilty problems.

  Jordan Carter (.nz): (07:32) Many organisations manage to answer tis question, Avri. It  can't be beyond our wit to come to a workable situation...

  Jordan Carter (.nz): (07:32) and as I've said, I am not assuming an answer to how best to instantiate this.

  Robin Gross [GNSO-NCSG]: (07:32) That is my concern, Avri.

  Edward Morris: (07:32) It should be noted that there is a membership type structure under California law that is less restrictive (in terms of statutorily required powers) than Membership. It's the Delegate, rather than Membership, structure and is something we should look at.

  Jordan Carter (.nz): (07:32) The accountability problem we face at a fundamental level is that the NTIA contract is going away, powerful forces want it not to be replaced, and at the moment the Board is supreme in ICANN. That is what has to change.

  Keith Drazek: (07:33) +1 Jordan

  Bruce Tonkin: (07:33) Just a quick response to Malcolm.   THe reconsideration process today already provides the ability for an affected party to challenge the approval of a new policy on the basis that the process wasn't followed.

  Fiona Asonga(ASO): (07:33) +1 Avri Seriously, Jordan what happens when the community will feel tht group is not meeting our needs  so we get anoher groupto supervise  that group?

  Jordan Carter (.nz): (07:33) That's the problem with processes and committees

  Fiona Asonga(ASO): (07:34) We need to keep the organization simple yet effective

  Bruce Tonkin: (07:34) Not true Setve.   TThose complaining about singular and plurarl do have standing to raise a reocnsideration request.

  Robin Gross [GNSO-NCSG]: (07:34) policy decisions should go back to the policy body they came from - not changed by a super body

  J 3: (07:34) I think Chris meant consensus policy

  Fiona Asonga(ASO): (07:34) +1 Robin

  Jordan Carter (.nz): (07:35) From what I have seen so far, a membership or delegate system is a *lot* simpler than trying to create entrenched bylaws based processes. But I'll keep an open  mind on that absent our advice.

  Edward Morris: (07:35) +! Avri, Robin. FRankly if we can't reach agreement as to the composition of any Member / Delegate structure than this is a no go. Perhaps we need to start working on this aspect of things ASAP.

  Jordan Carter (.nz): (07:35) Robin, I agree re super body

  Robin Gross [GNSO-NCSG]: (07:35) If we are talking about creating a body to reverse bottom up consensus, I'd be against it

  Jordan Carter (.nz): (07:35) the super body, if there was one, should only focus on things that aren't part of the existing milieu of processes.

  Jordan Carter (.nz): (07:35) strat plan, bylaws changes, sacking the board, etc.

  Jordan Carter (.nz): (07:36) we are after all meant to be supporting the bottom-up, multistakeholder policy model - not undermining it

  Robin Gross [GNSO-NCSG]: (07:36) The example steve gave was to reverse the GNSO policy

  Matthew Shears: (07:37) Hmm - I thought I heard that this new "process" would send things back to the community

  Jordan Carter (.nz): (07:37) +1 Matthew

  David McAuley (GNSO): (07:37) The instinct to avoid new structures in circumstances like these is most often quite sound – but today we face an iCANN Board that has the final say in all issues and I think many in the community find that unacceptable. If there was a real IRP with binding review of the merits as well as the process of decisions we might not be in this position.

  James Bladel-GNSO: (07:37) Using board accountability to challenge the outcome of a PDP would be an abuse of those mechanisms.

  Robin Gross [GNSO-NCSG]: (07:38) Agreed, James.

  Jordan Carter (.nz): (07:38) +1 David. That's what has to change.

  Jordan Carter (.nz): (07:38) A number of options exist as to how.

  wolfgang: (07:38) For People who are interested in History: Here is the link to ICANNs Membership Advisory Committee (MAC) from 1999 http://archive.icann.org/en/committees/membership/

  Edward Morris: (07:38) +1 Robin, James

  Steve DelBianco: (07:38) Does Reconsideration now look at substance of a decision or just  whether the Process was followed?

  Bruce Tonkin: (07:38) 2.Any person or entity may submit a request for reconsideration or review of an ICANN action or inaction ("Reconsideration Request") to the extent that he, she, or it have been adversely affected by:a. one or more staff actions or inactions that contradict established ICANN policy(ies);

  Matthew Shears: (07:39) can we look at how we need to go about implementing these proposed accountbility changes  - that surely would determine what the best vehicle would be

  Malcolm Hutty: (07:39) @Bruce existing IRP is not open to affected aggrieved parties if the mechanism affecting them is "as a result of third parties acting in line with the Board's action" (e.g. registrars  acting  as required by RAA") Article 3.2 of bylaws

  Bruce Tonkin: (07:42) Yes - the IRP is focussed on articles of incorpoartion and bylaws, but not policies.

  Bruce Tonkin: (07:42) The relevant text is:

  Bruce Tonkin: (07:42) Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action.

  Avri Doria: (07:45) do we need legal advice on each and every item?

  Leon Sanchez (Co-Chair-ALAC): (07:46) @Avri not necessarily

  Matthew Shears: (07:47) can we clarify the A and B avenues in the discussion notes thanks!

  Jordan Carter (.nz): (07:47) Avri: I hope not or we will be $$$$$$ in legal bills

  Mathieu Weill, ccNSO, co-chair: (07:47) 2 avenues :- community empowerment with limited, strictly enumerated, last resort powers (collective)- evolve IRP into independent review & redress (individual decisions)

  Leon Sanchez (Co-Chair-ALAC): (07:47) @Jordan and very delayed in times ;-)

  Jordan Carter (.nz): (07:47) Is Avenue A - community approval of key decisions, and b) review and redress?

  Matthew Shears: (07:47) thanks!

  Jordan Carter (.nz): (07:47) ah as Mathieu said'

  Matthew Shears: (07:48) thanks

  Edward Morris: (07:50) @Avri. Yes.

  Jordan Carter (.nz): (07:50) @Leon - yes, it might go past September

  Robin Gross [GNSO-NCSG]: (07:50) I don't think we agreed to create a group.

  Jordan Carter (.nz): (07:51) We didn't.

  Robin Gross [GNSO-NCSG]: (07:51) Creating a new group is one option, not the only ne.

  Jordan Carter (.nz): (07:51) Correct.

  Robin Gross [GNSO-NCSG]: (07:51) it still sounds like we are talking about creating a new group.

  Jordan Carter (.nz): (07:51) As for liability for any prospective members, I do think that with responsibility comes, well, responsibility. So we should ask legal advice to explain and understand the impact on such questions, because we need to know it.

  Jordan Carter (.nz): (07:52) (prospective members or any other approaches)

  Bruce Tonkin: (07:53) One of the differecnes is whether any particular group is doing a review and making recommendations versus directing the organization.

  Bruce Tonkin: (07:53) So the GNSO COuncil makes a recommendation on policy, and the board approves the policy.   The memebrs o fthe GNSO COuncil would generally not be liable.

  Bruce Tonkin: (07:53) If the GNSO was able to directly make policy then I would expect some liability make occur.

  Robin Gross [GNSO-NCSG]: (07:54) I still think we should be talking about needed processes - not the creation of a new group with a broad range of powers.

  Jordan Carter (.nz): (07:55) And if all the "Ubergroup" or "Members" could do relates to recommiting things or removing board members, it should be OK. It is if it approves things - budget, strat plan, changes to by laws - then it gets a little more complex.

  Seun Ojedeji: (07:55) looking at the WS1, i think "prevent ICANN from acting outside its mission" seem to be one of the outcome of "approval of key decisions" so the former may not be necessary to include.

  Jordan Carter (.nz): (07:56) But generally I think there are elemens of FUD in the idea that members are liable. It's the organisation that retains liability, in my experience. But - lawyers :)

  Chris Disspain: (07:57) members can be liable in certain circumstances but I think it's unlikely in the scenario we are discussing

  Bruce Tonkin: (07:57) Yes Jordan in general I would assume the org structure of a membership orgnaization is set up to minimize liability for members.   Members elect a Board and the board can have some specific liability - but also there are lilmitations to that liability - e.g making reasonable decisions etc.

  Bruce Tonkin: (07:58) Things can get blurred when some group of members is formed with any "board" like powers.

  Edward Morris: (07:58) Members do not have liability under California law. Please see page 24 of this booklet: oag.ca.gov/sites/all/file/agweb/pdfs/charities/publications/guide_for_charities.pdf

  Jordan Carter (.nz): (07:58) It is, over all, a wise question to ask.

  Sivasubramanian M: (07:58) Review and Redress avenue - I volunteer

  Bruce Tonkin: (07:58) e.g I my view a supervisory Board as described by Roelof - I think would have liability as it is basically the Baord.

  Chris Disspain: (07:58) more likley is that members with wider powers than normal could be construed by a court as a 'controller' of the entity and therfore do have some liability

  Jordan Carter (.nz): (07:59) Edward, that link was broken for me

  Robin Gross [GNSO-NCSG]: (07:59) I think that is true, Bruce.

  Sivasubramanian M: (07:59) Review and Redress avenue - I volunteer

  Keith Drazek: (07:59) We don't  want the members to be controllers....they need to be the backstop of last resort. The escalation point when all else has failed.

  Chris Disspain: (08:00) agree Keith

  Jordan Carter (.nz): (08:00) Precisely. The Board has to remain the governing body.

  Steve DelBianco: (08:00) +1 Keith

  Matthew Shears: (08:00) + 1

  Avri Doria: (08:00) i will help on either group especially with items that have a connecton to ATRT stuff.

  Izumi Okutani (ASO): (08:00) + 1 Keith (given we will be agreeing about this new scheme)

  David McAuley (GNSO): (08:00) +1

  Keith Drazek: (08:01) The question of  budget approval *could* be deemed controlling if not approached carefully, but the other items we've discussed are not controlling or directing at all.

  Jonathan Zuck (IPC) 2: (08:01) right to force reconsideration of the budget?

  Edward Morris: (08:03) Per the Office of Attorney General of the State of California (see document link above): Members, as such, are not personally liable for the debts, liabilities or obligations of the public benefits corporation.  A member is not liable for the actions of directors, unless a member personally benefited from an unfair self-dealing transaction , prohibited distribution of corporate assets, or other  improper action."

  Jordan Carter (.nz): (08:04) Sounds familiar and sensible, Edward.

  Keith Drazek: (08:04) Thanks Edward, very helpful.

  Grace Abuhamad: (08:05) http://singapore52.icann.org/en/schedule-full

  Edward Morris: (08:06) Agreed Jordan. No problem Keith. It's a pretty flexible statute, complete with different membership classes, the delegate - rather  than member category - which, of course, makes things a bit more difficult as we basttle deadlines.

  Grace Abuhamad: (08:06) CCWG-Acct session on Monday afternoon; Thurs morning. Also session for community engagement on Wednesday morning

  Grace Abuhamad: (08:06) http://singapore52.icann.org/en/schedule-full