CCWG ACCT Meeting #16 (10 March)

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Transcript

Recording

The Adobe Connect recording is available here:  https://icann.adobeconnect.com/p6b9ogdh454/

The audio recording is available here:  

Proposed Agenda

1. Welcome, roll-call & SoI
2. Activity reports
WP 1
WP 2
ST-WP
Legal Subteam
3. Timeline (sharing expectations from Istanbul)
4. Structure of public comment report
5. A.O.B
5. Concluding remarks

Links:

WP1 Drafts - http://tinyurl.com/puvneyq
WP2 Drafts - http://tinyurl.com/p9yemfx
ST-WP Drafts - http://tinyurl.com/mye8o3e
Legal Subt Drafts - http://tinyurl.com/kajxlc4
Timeline - http://tinyurl.com/kd2u3b7

Notes

Action Items

Documents Presented

Chat Transcript

  Alice Jansen 3: (3/10/2015 00:19) Welcome to CCWG-Accountability call #16! Chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards

  ARASTEH: (00:56) Good morning to all

  Chris LaHatte: (00:57) good evening from New Zealand

  Tijani BEN JEMAA (ALAC): (00:57) Hello evryone

  Chris LaHatte: (00:57) loving the chicken

  Alice Jansen 3: (00:57) Please mute your lines

  Sabine Meyer: (00:57) Good morning, everyone!

  Leon Sanchez (Co-Chair-ALAC): (00:58) Hello everyone!

  Leon Sanchez (Co-Chair-ALAC): (00:58) Welcome again!

  Alice Munyua (GAC): (00:58) Hello everyone

  Leon Sanchez (Co-Chair-ALAC): (00:58) May I remind you to please mute your lines if you are not speaking?

  FIONA ASONGA (ASO) 2: (00:58) Hallo Everyone

  ARASTEH: (00:58) this is a very nice morning in Geneva,

  Athina Fragkouli (ASO): (00:59) Hello all!

  Leon Sanchez (Co-Chair-ALAC): (01:00) The rooster is an indication we're about to begin

  Olivier Muron /GNSO/ISPCP: (01:00) Hello all!

  ARASTEH: (01:00) it is good to hear that some body laughting

  Avri Doria: (01:00) o like the rooster.  bit odd at 2am, nonetheless.

  Jordan Carter (.nz): (01:01) Good evening folks

  Izumi Okutani (ASO): (01:01) Hello all

  Jordan Carter (.nz): (01:01) a lovely sunny 20 degrees at 7pm Tuesday in Wellington

  Avri Doria: (01:01) guess just a side effect of daylight savings time.

  Mathieu Weill, ccNSO, co-chair: (01:01) Hello there ! Good day/night/morning/evening to all

  EBrhard W Lisse [.NA ccTLD Manager]: (01:02) 08:00 in the morning here in Windhoek :-)-O

  jorge cancio GAC: (01:02) hello to all

  Brenda Brewer: (01:03) Leon is back on audio now

  Leon Sanchez (Co-Chair-ALAC): (01:03) Thanks Brenda!

  Brenda Brewer: (01:04) Barrack Otieno is on audio only

  Alice Jansen 3: (01:05) Available here - https://community.icann.org/download/attachments/52888421/WP1-WorkStatus-CCWG-ACCT%202015-03-10.pdf?version=1&modificationDate=1425966317543&api=v2

  jorge cancio GAC: (01:07) GAC Chair sent a preliminary answer to CCWG Co-Chairs on March 5th, with a number of questions

  Alice Jansen 3: (01:07) Apologies - we seem to be having problems with the document uploading features

  ARASTEH: (01:07) good morning Thomas SCHNEIDER

  Alice Jansen 3: (01:07) It should now be on your screens - thanks for your patience

  ARASTEH: (01:08) ARE YOU THERE?

  Alice Munyua (GAC): (01:09) The GAC chair responded with some clarifying questions

  ARASTEH: (01:10) aLICE i am not able to raise hand

  Steve DelBianco [GNSO - CSG]: (01:10) not here, as far as I recall

  Brenda Brewer: (01:11) Apologies Kavouss, if you cannot raise your hand, you will need to log in again please.

  Alice Jansen 3: (01:11) @Kavouss, please try rejoining the Adobe Connect

  Thomas Rickert: (01:11) Kavouss, I note your request to speak after Jordan's intervention

  Brenda Brewer: (01:12) Keith Drazek is not on audio at this time.

  Thomas Rickert: (01:13) Please mute your lines when not speaking

  Leon Sanchez (Co-Chair-ALAC): (01:13) Kindly mute your lines when not speaking

  David McAuley: (01:14) bad echo

  Jordan Carter (.nz): (01:14) Big echo echo echo

  Jordan Carter (.nz): (01:15) oh that seems better

  Thomas Rickert: (01:17) Kavouss, we will hear you after Steve's presentation

  Samantha Eisner: (01:28) Information on the full complement of work on reviewing the New gTLD Program (not just the AoC review on Consumer Choice) is available at http://newgtlds.icann.org/en/reviews

  Jordan Carter (.nz): (01:28) I giess it is a point to note that we need to decide at the meeting in Istanbul what we consider to be WS1 and what we consider to be WS2, and propose those to the community as part of our consultation

  Jordan Carter (.nz): (01:31) could the AP be to clearly define in this material which WS the team thinks each needs to be at?

  Jordan Carter (.nz): (01:31) (if they don't think it needs to be in WS1)

  jorge cancio GAC: (01:34) Agree on the need to keep balance in review teams

  Steve DelBianco [GNSO - CSG]: (01:35) there is also Review #4 (WHOIS) in our draft

  jorge cancio GAC: (01:38) question for Becky: what is the legal nature of this compact mission? will it be binding? actionable?

  Eberhard Lisse [.NA ccTLD Manager]: (01:40) got  kicked off, but am back in :-)-O

  jorge cancio GAC: (01:41) how will it be implemented legally?

  Jordan Carter (.nz): (01:42) I would imagine it fits into the Bylaws.

  jorge cancio GAC: (01:42) and thanks for the explanations

  Bruce Tonkin: (01:42) IN terms of changing some bylaws like mission etc - a process could be dinfed that requires some level of cosnensus at least in the SOs as well as some voting threshold at the Board.

  jorge cancio GAC: (01:42) sounds like a constitutional level within the fundamental rules for ICANN

  Jordan Carter (.nz): (01:43) jorge, that does sound like a good analogy to me.

  Mathieu Weill, ccNSO, co-chair: (01:43) +1 Jorge

  Becky Burr: (01:43) I agree Jorge

  Bruce Tonkin: (01:43) Yes @#jorge - one way of thinking of this is like making a change to a constitution versdus a change to the laws under the constitution.

  Bruce Tonkin: (01:43) That is why I had been looking at both the articles of associations and the bylaws.

  Julia Wolman, Denmark, GAC: (01:43) +1Jorge

  Leon Sanchez (Co-Chair-ALAC): (01:44) @Jorge that is exactly right

  Bruce Tonkin: (01:44) Articles of Incorporation - to use the California legal term.

  Chris LaHatte: (01:45) we do need to think in the longer terms about constitutional or founding principles as the top level for governance, as I think you are saying Bruce

  Bruce Tonkin: (01:46) Yes @Chris - I think we need to have a core purpose of ICANN that is much harder to change  than say a "bylaw" that defines how we operate - rather than what we do.

  Jordan Carter (.nz): (01:47) Golden bylaws, or sticking stuff into the Articles? Pre or post transition? So many questions.

  Chris LaHatte: (01:47) A constitution I think

  Becky Burr: (01:47) that is something we need legal advice on

  Leon Sanchez (Co-Chair-ALAC): (01:48) One of the questions in the legal scopoing document addresses precisely the issue of keeping ICANN's mission narrow and explores the Golden bylaw

  Bruce Tonkin: (01:53) just a question for the co-chairs - is the CCWG planning to use the same legal counsel as the CWG - or is that still under discussion?

  Leon Sanchez (Co-Chair-ALAC): (01:54) @Bruce the initial intentions is to use the same but it is still under consideration. I will give an update on that in a moment

  Jordan Carter (.nz): (01:55) +1 for that coord point

  Chris LaHatte: (01:57) I can talk on those issues

  Bruce Tonkin: (01:58) Thanks @Leon.

  Mathieu Weill, ccNSO, co-chair: (02:02) @Steve : maybe we could just amend the "title" of the review : effectiveness of policies to meet legitimate needs of LEA, promote consumer trust while taking into account privacy

  Alice Jansen 4: (02:03) Chris, do you need a dial-out?

  Chris LaHatte: (02:03) I have lost sound

  Samantha Eisner: (02:03) For each of the reviews, consideration of the length of cycle between reviews/community workload should be considered

  Bruce Tonkin: (02:04) With respect to reviews - such as WHOIS - I think it is importnat to fcus the next review on what has changed and the effectiveness of the cnage.

  Chris LaHatte: (02:04) yes I think I will need that

  Robin Gross [GNSO - NCSG]: (02:04) yes, Mathieu

  Bruce Tonkin: (02:04) Trying to review the whole of WHOIS again would not be productive as there are range of parallel  activiites  still underway from the last review.

  Steve DelBianco [GNSO - CSG]: (02:05) Agree, Bruce.   Especially since we need to do the AoC WHOIS review in 2015

  Eberhard Lisse [.NA ccTLD Manager]: (02:06) unfortunately I'll have to step out any second now...

  Mathieu Weill, ccNSO, co-chair: (02:06) 3&4 are on page 4 if you wantto scroll

  Steve DelBianco [GNSO - CSG]: (02:07) page 5, on the document displayed in Adobe

  Brenda Brewer: (02:07) 11:00 UTC for the Stress Tests Call 11 March

  Alice Jansen 4: (02:07) You should all have scroll control

  Mathieu Weill, ccNSO, co-chair: (02:07) @Steve: oups, right, page 5

  Chris LaHatte: (02:09) does whistleblowing have a role in stress test?

  Mathieu Weill, ccNSO, co-chair: (02:09) @Chris; sure, could be related to stress test about corruption for instance

  Chris LaHatte: (02:09) ombudsman typically has a role there

  Chris LaHatte: (02:10) a confidential place to lodge such issues

  Cheryl Langdon-Orr ALAC - APacRegion Member: (02:10) Thanks for the suggestion @Chris

  Jordan Carter (.nz): (02:11) YOu have that right, Steve.

  Chris LaHatte: (02:11) and as accountibility you can ask the ombudsman to investigate, as an individual or corporate

  Chris LaHatte: (02:12) Systemic problems are part of my mandate

  Bruce Tonkin: (02:14) Which number stress test is Steve referring to?

  Samantha Eisner: (02:14) 3 and 4

  Samantha Eisner: (02:14) they are on page 5 of the document

  Bruce Tonkin: (02:14) Thanks @Samantha

  Samantha Eisner: (02:17) There's a difference between a risk analysis towards an action and actually violating a law

  Bruce Tonkin: (02:18) I think there is a ig difference from doing something that might lead to litigation with respect to a contract, versus action that a law enforcement body might take with respect to coompliance with teh law.

  Jordan Carter (.nz): (02:18) If the United States legislates towards ICANN post-transition, then we are in serious trouble.

  Jordan Carter (.nz): (02:18) Ditto the State of California.

  Chris LaHatte: (02:19) +1 Jordan

  Leon Sanchez (Co-Chair-ALAC): (02:20) @Jordan but that is true in any case in any jurisdiction

  Bruce Tonkin: (02:21) @Steve the community certainly has a voice through the IRP and recosnideration if the Baord took a deicsion that was against an approved community policy.

  Jordan Carter (.nz): (02:22) Leon - yes, but it's mainly relevant in the jurisdiction in which ICANN resides

  Leon Sanchez (Co-Chair-ALAC): (02:23) @Jordan agree

  Steve DelBianco [GNSO - CSG]: (02:23) @Bruce -- I do not believe the Comminity has standing or access to file an IRP.  And the IRP is not binindg

  Chris LaHatte: (02:26) the community would however be able to complain to the ombudsman

  Chris LaHatte: (02:26) and has done so

  jorge cancio GAC: (02:28) in some jurisdictions the ombudsman has standing to bring in, for instance, constitutional appeals - and does so when there is relevant community (civil society for instance) support...

  Bruce Tonkin: (02:29) Yes - this is a tricky area.    Ultiately thICANn needs to adhere to its policies and the communiyt needs to update policies as communiyt valuaes and requirements change.

  Bruce Tonkin: (02:29) The compleixity is when laws are created where there is no expolicit ICANN policy in that area.   So an accouontaibility mechansims that ensuresICANn follows its policies may not be appropriate.

  Bruce Tonkin: (02:30) I agree with Steve though that one of hte coencerns is how laws relating to freedom of expression creating in some countries could apply to ICANN.

  Cheryl Langdon-Orr ALAC - APacRegion Member: (02:30) Exactly Mathieu!

  Jordan Carter (.nz): (02:31) I think we have talekd this out

  Jordan Carter (.nz): (02:31) *talked

  Cheryl Langdon-Orr ALAC - APacRegion Member: (02:31) yup

  David McAuley: (02:31) We do need to be aware of issue and Steve is right that not all risks can be eliminated.

  Jordan Carter (.nz): (02:31) We need to demonstrate that we have considered a wide array of situations, and that our proposed set of reforms respond in a balanced way to them. Not solve everything for all time.

  Bruce Tonkin: (02:33) Yes @David - certainly at a multi-national company point of view - companies can simply choose not to do business in some countries where they feel they cannot comply with the local law.   It does get more comlication with a public benefit corporation that is supposed to operate for global benefit.

  Samantha Eisner: (02:33) ICANN has an obligation to follow court orders issued from applicable jurisdictions

  Leon Sanchez (Co-Chair-ALAC): (02:33) +1 Jordan

  David McAuley: (02:33) @Bruce - agreed

  Mathieu Weill, ccNSO, co-chair: (02:33) @Sam: can opt to challenge legislation as well

  Bruce Tonkin: (02:34) The WHOIS policy - is one response - in that ICANn can give some exemptions for registrars that are located in a local where the local law is different to the requirements in the registrar accreditation agreement.

  Samantha Eisner: (02:34) Yes, orders can be challenged

  Leon Sanchez (Co-Chair-ALAC): (02:34) @Sam @Mathieu ICANN could challenge the resolution that derives in the Court order but if it decided not to challenge it I think it couldn't be held accountable on executing a Judge order

  Chris LaHatte: (02:35) and if the court is corrupt?

  Avri Doria: (02:35) Sam, I also assume there are grey areas where the question of whether ICANN is liable under a country's legislation might be opne and benefit from policy recommendations.

  David McAuley: (02:35) @Bruce - RAR data retention is another

  Leon Sanchez (Co-Chair-ALAC): (02:36) @Chris that wouldn't be up to ICANN to decide, hence the challenge of the resolution and for a higher Court to decide

  Bruce Tonkin: (02:36) An interesting point @leon.   It would certainly be a choice from ICZANZn as to whether or not it challenges enforcement of a particular law through the courts - versus simply accept it.

  Samantha Eisner: (02:37) Challenging an order is often different from just ignoring it or choosing not to follow it

  Jordan Carter (.nz): (02:39) Staff - I parse the action points for WP1 - can you note the action to pass legal questions on is for WP rapporteurs?

  Jordan Carter (.nz): (02:39) I agree that jurisdiction should be done as WS2 not WS1, personally.

  jorge cancio GAC: (02:41) @leon: will you put this question on jurisdiction explicitly to the CCWG-list?

  David McAuley: (02:41) Not sure why CCWG would use separate legal advisor – if we would want that we should have good reason given the time it will take to arrange

  jorge cancio GAC: (02:43) thanks, gracias, Leon!

  Alice Jansen 4: (02:45) https://docs.google.com/document/d/132V7P8nmyalhoso7zcevjW3_ox1laXn5JIEH3dDAF3A/edit?usp=sharing

  Edward Morris: (02:45) @David. i don't think it should be assumed the same law firm suits the needs of both groups given that each group may, or may not, have different legal specialist needs.

  Julia Wolman, Denmark, GAC: (02:46) I believe it makes most sense to use the same law firm in both groups

  Jordan Carter (.nz): (02:46) I can see no reason on earth why we would use a different firm

  Jordan Carter (.nz): (02:46) but if we were going to use another one, surely it has to be one of the short listed ones from the CWG

  Chris LaHatte: (02:47) thee are not such difficult questions of law, that we need different specialists

  ARASTEH 2: (02:47) I FULLY AGREE WITH JULIA IN HAVING THE SAME LAW FIRM BOR BOTH

  Jordan Carter (.nz): (02:47) I strongly support us going to the same firm.

  David McAuley: (02:47) Thanks @Edward. I have tried to envision what need might cause that but don’t see it so far. Open to other thoughts.

  Bruce Tonkin: (02:47) Although - note that the law firm has a great deal of resources to call upon with respect to specialist advice in different areas.   The CCWG woudl not be limited to the advice from a single lawyer at the firm.

  David McAuley: (02:47) Good point Bruce

  Avri Doria: (02:48) While i think it most convenient, i agree with the reasoning that indicates there could be a diffence in skill sets between contract law (most of the CWG questons) and acocuntabilty meansure (most of the CCWG issues)

  Jordan Carter (.nz): (02:48) I trust the legal group to test that

  Jordan Carter (.nz): (02:48) (Avri's point)

  Jordan Carter (.nz): (02:48) look forward to hearing the report back

  Avri Doria: (02:48) i trust them too.  just ndicating a basis for a decsion to pick a different firm.

  Pedro da Silva [GAC Brasil]: (02:49) +1 Steve

  David McAuley: (02:49) +1 Steve also

  Pedro da Silva [GAC Brasil]: (02:49) (apologies for joining the call only now)

  Leon Sanchez (Co-Chair-ALAC): (02:51) no movies for anyone on the plane :P

  Robin Gross [GNSO - NCSG]: (02:51) We aren't even going to get our legal advice back in time to decide what mechanisms are viable and will achieve our goals for a couple more weeks.  I don't think we can possibly know what we are proposing for a draft proposal coming out of Istanbul.

  Robin Gross [GNSO - NCSG]: (02:52) We need a realistic timeline.  The one we have implies we will have the issues in WS done by May.  That is not realistic.

  Robin Gross [GNSO - NCSG]: (02:52) WS1 done by May, that is.

  Robin Gross [GNSO - NCSG]: (02:53) But we won't have WS1 done by May.

  Leon Sanchez (Co-Chair-ALAC): (02:54) Let's not miss the point that legal advice will result in a series of iterations and while we won't be able to have definitive advice before Istanbul, I believe it is feasible to have at least initial advice before our meeting, as long as we engage with the law firm in time

  Robin Gross [GNSO - NCSG]: (02:55) We may entirely re-structure ICANN with one single 21-day public comment period?  That doesn't seem right.

  Jordan Carter (.nz): (02:55) We have to ask for SOME SORT of comments in April, I hope

  Jordan Carter (.nz): (02:56) but whether we can sustain that being the ONLY public comment period, I don't know.

  Jordan Carter (.nz): (02:56) especually given the community overload in April - people will have 21 or 30 days for comments both on Accountability and on the Names proposal.

  Jordan Carter (.nz): (02:57) +1 Mathieu - we should be running full speed ahead to Istanbul.

  David McAuley: (02:57) +1 Mathieu

  Jordan Carter (.nz): (02:57) +1 Mathieu's suggestion that the Agenda in terms of ISSUES can be settled only late next week

  Jordan Carter (.nz): (02:58) Matheiu-- we need to talk about the longer term frame of this project, at Istanbul, especially how our recommendations interact with Stewardship and whether our advice has to be IMPLEMENTED before the transition

  ARASTEH 2: (02:58) Dear All

  Jordan Carter (.nz): (02:58) because if they have to be implemented, then the more detail work we can do early, the more useful.

  ARASTEH 2: (02:59) I WISH TO TAKE THIS OPPORTUNITY TO SINCERELY THANK icann staff and in particular

  Mathieu Weill, ccNSO, co-chair: (03:00) @Jordan : Right Jordan. All our recommendations will have to go with implementation proposals / timelines I guess

  ARASTEH 2: (03:00) Bruce who has been always very helpful in providing timely and comprehensive informatrion

  David McAuley: (03:00) +1 @Kavouss

  Jordan Carter (.nz): (03:00) ICANN Board Member Bruce. :-) +1

  Leon Sanchez (Co-Chair-ALAC): (03:00) +1 Kavouss

  Mathieu Weill, ccNSO, co-chair: (03:01) +1, and demonstrates the value of CCWG Board liaisons

  jorge cancio GAC: (03:01) +1

  ARASTEH 2: (03:01) CCWG IS A LOVELY AND FREINDLY GROUP

  ARASTEH 2: (03:02) tks to all its members and in particular its co-chair

  Julia Wolman, Denmark, GAC: (03:02) +1

  Jordan Carter (.nz): (03:02) Aren't all ICANN groups like this?

  ARASTEH 2: (03:02) NO COMMENT

  Pär Brumark (GAC): (03:03) +1 Kavouss:-)

  Julia Wolman, Denmark, GAC: (03:04) +1 Jordan

  Alice Munyua (GAC): (03:04) +1

  Jordan Carter (.nz): (03:04) I agree we need to think about feedback stuff but also the substance needs to be clear and crisp. Appendixes or background docs could be our friends.

  Mathieu Weill, ccNSO, co-chair: (03:05) Good point Jordan. Will start thinking about key questions

  Cheryl Langdon-Orr ALAC - APacRegion Member: (03:05) Good call  Thank you all talk soon then... bye for now...

  Chris LaHatte: (03:05) +1 Jordan

  David McAuley: (03:05) Thanks all

  Thomas Rickert: (03:05) thanks all!

  Jordan Carter (.nz): (03:05) Thanks everyone ! Good call!

  Markus Kummer: (03:05) Thanks and congrats: impressive work by the CCWG!

  Mathieu Weill, ccNSO, co-chair: (03:05) Thank you everyone ! TTY soon !

  Alice Munyua (GAC): (03:05) Thank you

  Pär Brumark (GAC): (03:05) Thx!