Attendees
Members: Alan Greenberg, Athina Fragkouli, Becky Burr, Cheryl Langdon Orr, Giovanni Seppia, Izumi Okutani, Jordan Carter, Jorge Villa, Julia Wolman, Leon Sanchez, Par Brumark, Samantha Eisner, Steve DelBianco, Sebastien Bachollet, Thomas Rickert, Tijani Ben Jemaa (15)
Participants: Amrita Choudhury, Athina Fragkouli, Avri Doria, Barrack Otieno, Chris Disspain, Christopher Wilkinson, David McAuley, Edward Morris, Finn Peterson, Jonathan Zuck, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Laena Rahim, Martin Boyle, Oanh Nguyen, Paul Szyndler, Par Brumark, Robin Gross, Roelof Meijer, Wisdom Maduka, Yasuichi Kitamura (21)
Legal Counsel: Edward McNicholas, Holly Gregory, Ingrid Mittermaier, Josh Hofheimer, Miles Fuller, Rosemary Fei, (7)
Staff: Adam Peake, Alice Jansen, Berry Cobb, Kim Carlson, Marika Koning
Apologies: Alice Munyua, Eberhard Lisse, Greg Shatan
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Recording
The Adobe Connect recording is available here:
The audio recording is available here:
Proposed Agenda
1. Welcome, Roll-Call & SoI;
2. Review of the public comments received on Draft Proposals;
3. A.O.B
Notes
Action Items
Documents Presented
CCWG-ACCT Public Comment - 8 June.pdf
Chat Transcript
Kimberly Carlson: (6/8/2015 09:34) Welcome to CCWG Accountability Meeting #36 on 9 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
arasteh: (23:37) Hi Kim
Amrita: (23:38) Hi Everyone
Kimberly Carlson: (23:39) Hello!
Holly Gregory (Sidley): (23:53) Hello everyone
Athina Fragkouli (ASO): (23:57) hello all!
Ingrid Mittermaier (Adler & Colvin): (23:58) Good evening!
Josh Hofheimer (Sidley): (6/9/2015 00:00) Good evening
Rosemary Fei: (00:00) Hello, all.
Thomas Rickert, CCWG Co-Chair: (00:00) Hi all!
Jordan Carter (.nz, ccTLD member): (00:00) Hello everyone
David McAuley (RySG): (00:00) Good morning
Avri Doria: (00:00) hello all
Jordan Carter (.nz, ccTLD member): (00:01) looking at the pile of things to read :/
Edward McNicholas, Sidley Austin LLP: (00:01) Hello
Becky Burr: (00:01) Good morning/afternoon/evening
Pär Brumark (GAC Niue): (00:01) Hi all!
Sébastien (ALAC): (00:01) Hello
arasteh: (00:01) Hi Everbody
David McAuley (RySG): (00:02) lost audio?
Jordan Carter (.nz, ccTLD member): (00:02) this audio is, strange
David McAuley (RySG): (00:02) hearing call in instructions by Steve
Sébastien (ALAC): (00:03) I guess we get the wrong canal
Roelof Meijer (SIDN, ccNSO): (00:03) @david: me too
Jordan Carter (.nz, ccTLD member): (00:03) we have lost everyone's audio
Jordan Carter (.nz, ccTLD member): (00:03) someone has broken something
David McAuley (RySG): (00:03) maybe Steve - you are all we hear
Rosemary Fei: (00:03) I can hear Leon just fine.
David McAuley (RySG): (00:03) cant hear Leon at all
Roelof Meijer (SIDN, ccNSO): (00:04) @Steve: I think she's going to ask for your number...
Holly Gregory (Sidley): (00:04) Audio fine here
David McAuley (RySG): (00:04) +1 Sebastien
Becky Burr: (00:04) have people who have not filed been notified?
Alan Greenberg: (00:04) Steve, good thing no secret passwords
David McAuley (RySG): (00:04) Leon is back
Amrita: (00:04) The audio breaks at some time
Thomas Rickert, CCWG Co-Chair: (00:04) People have been reminded multiple times, also with individual communication
Alice Jansen: (00:05) Participants can see status of their SoI on https://community.icann.org/pages/viewpage.action?pageId=50823968 -
Mathieu Weill, ccNSO, co-chair: (00:06) Hi all, apologies for delay
Athina Fragkouli (ASO): (00:14) thank you very much, we will do that
Adam Peake: (00:14) That is Friday June 12 at 23:59UTC
Avri Doria: (00:14) why not both tot he list and the co-chairs. so we can see them as soon as ppossible.
Josh Hofheimer (Sidley): (00:16) Is it possible to expand the view so the text is a bit larger?
Jordan Carter (.nz, ccTLD member): (00:17) we have our own zoom control?
Josh Hofheimer (Sidley): (00:17) Ahh, thanks Jordan!
Kimberly Carlson: (00:20) SSAC comment has been posted: https://community.icann.org/pages/viewpage.action?pageId=53778556
Alice Jansen: (00:21) The list of contributions is in alphabetical order. The comments in the table are in chronological order
Avri Doria: (00:22) is it just me or is AC somewhat unstable at the moment.
Alice Jansen: (00:22) We will fix order for auDA
Jordan Carter (.nz, ccTLD member): (00:22) I should hope so, Alice! ;)
Avri Doria: (00:22) i guess it is just me.
David McAuley (RySG): (00:22) AC seems fine here
Cheryl Langdon-Orr: (00:22) we are pretty forgiving ...fear not...:-) :-) :-)
Jonathan Zuck (IPC): (00:23) Avri, admitting you're unstable is the first step...
Avri Doria: (00:23) good thing i am on the phone bridge a well.
Alan Greenberg: (00:23) "au" before "AF" is likely a quirt of a sort which differentiates lower from upper case.
Avri Doria: (00:23) thanks you jonathan. are you offering to be my sponsor?
Jonathan Zuck (IPC): (00:24) I haven't been through enough steps yet to sponsor. Still in denial.
Paul Szyndler: (00:24) ".auDA" everything is to the right of the dot.....
Avri Doria: (00:30) might be good to distinguish in some way those comments that are model killers and those comments that are for improvement.
Alan Greenberg: (00:32) Avri, I'm sure that the "model killers" are thought to be improvements by their originators!
Avri Doria: (00:32) ok, replace improvements, with stepwise refinements. same diffference.
Jonathan Zuck (IPC): (00:33) +1 Avri
Alan Greenberg: (00:33) zJust trying to introduce some humor into these procedings. I will stop.
Jordan Carter (.nz, ccTLD member): (00:33) Please don't Alan - we're all going to need it
Jordan Carter (.nz, ccTLD member): (00:33) :-)
Keith Drazek: (00:35) I think we've assumed (to date) that the community would hold the Board accountable, and the Board would hold the management accountable. I'd be happy to discuss new mechanisms for holding future senior management accountable, but we're not trying to replace the Board.
Holly Gregory (Sidley): (00:35) Just FYI, Nell Minow is a movie critic known as "Movie Mom" ; she is also a well known member of the governance community in the US
Jonathan Zuck (IPC): (00:36) Agree Keith I think it's about using board based mechanisms to keep management accountable
Avri Doria: (00:36) agree that we can decide to put some of issue in the WS2 pile.
Avri Doria: (00:37) not so sure we can say, that is the Board's problem.
Rosemary Fei: (00:38) What is a PDP, please?
Avri Doria: (00:39) an SO policy development process
Jonathan Zuck (IPC): (00:39) Gosh, it might be better to organize this document by question, comment and assign one or more commenters to each
Ingrid Mittermaier (Adler & Colvin): (00:39) Would it be possible to mention the comment number being discussed?
Rosemary Fei: (00:39) THank you., Avri
Rosemary Fei: (00:39) We're on 13
Jonathan Zuck (IPC): (00:40) presumably we don't need to respond to supportive comments, just tally them, no?
Steve DelBianco [GNSO - CSG]: (00:41) Danielle (she)
Avri Doria: (00:41) some supportive are supportive but, with might big conditions.
Roelof Meijer (SIDN, ccNSO): (00:41) we're on page 4, 40 mins into the call. 10 pages per minute, 85 pages?
Avri Doria: (00:41) ( :
Keith Drazek: (00:42) @Avri: In the interest of time and efficiency, I agree we could discuss management accountability in WS2. I assumed most would prefer leaving management accountability in the hands of the Board, but I'd certainly be open to further discussion on that.
Roelof Meijer (SIDN, ccNSO): (00:42) I mean 10 mins per page, 85 pages in total...
Jonathan Zuck (IPC): (00:42) Agree Avri. i don't mean supportive overall but specific statements within a 'comment" which are supportive
Jonathan Zuck (IPC): (00:42) I don't think anyone is absorbing this in a practical way
Chris Disspain: (00:43) Roelof and Jonathan + 1
Avri Doria: (00:43) Keith, some of us have been mightly disappointed with the Board in regard to that over the years. We assume that the Board has control over staff, but its way of working only gives it control at one point, the CEO. perhaps this model is problematic and needs review.
Giovanni Seppia (EURid): (00:43) Roelof and Jonathan + 1
jorge cancio (GAC Switzerland): (00:45) +1
Keith Drazek: (00:45) Agreed Avri. Happy to support those further discussions. If the community has the ability to effect needed change (from WS1) we can address in WS2. Otherwise, it should be a WS1 issue.
Giovanni Seppia (EURid): (00:45) @ co-chairs, can we try to optimise and make this call more effective? Respectfully, I do not see the added value of going through the comments like this.
Alan Greenberg: (00:46) The Board controls the staff only to the extent that they choose. There are multiple examples, many of them long past, and some not, where the Board has ceded control over certain issues to staff. Nominally the Board is still in control, but by blindly accepting input as definitive, they may be giving it up.
Jordan Carter (.nz, ccTLD member): (00:46) The advantage is that it is allowing me to read the comments...
Holly Gregory (Sidley): (00:46) Interesting concept to take managerial oversight away from the board; from legal perspective issue will be whether the board without managerial oversight is still the legal oversight body with fiduciary obligations; if given to membership body this could make membership body into the fiduciaries -- in other words the defacto board; would need to research
jorge cancio (GAC Switzerland): (00:46) has staff prepared a presentation like in CWG with major trends detected in the consultation inputs?
Jordan Carter (.nz, ccTLD member): (00:47) YES Thanks Mathieu
Jordan Carter (.nz, ccTLD member): (00:49) Will the staff do a written summary as well, or is that basically what the WPs are tasked with ?
Mathieu Weill, ccNSO, co-chair: (00:49) @jorge : no, there was thata request that the initial analysis be undertaken within CCWG
Keith Drazek: (00:50) Thanks Holly. We'll need that research if we're going to pursue.
Jordan Carter (.nz, ccTLD member): (00:51) In law the board for sure is responsible for what staff do - we can't look to structural changes for a failure on that side, can we?
jorge cancio (GAC Switzerland): (00:52) @Mathieu: I feel it would be useful to have such a presentation and it does not preclude the CCWG from doing the analysis as such
Keith Drazek: (00:52) @Jordan, I think the key is ensuring the community can compel the Board to act when it has not done so, not replacing the Board's role.
Rosemary Fei: (00:52) Under reference model, community would have clearer and powerful ways to hold Board accountable, and so force board to oversee staff differently if needed
Jonathan Zuck (IPC): (00:53) +1 Rosemary
David McAuley (RySG): (00:53) Good point Rosemary
Mathieu Weill, ccNSO, co-chair: (00:53) @Jorge: can be done of course
Keith Drazek: (00:53) +! Rosemary....said better than I did.
Jordan Carter (.nz, ccTLD member): (00:53) Rosemary, yup.
Holly Gregory (Sidley): (00:54) that is correct Rosemary
Alan Greenberg: (00:55) Real question is whether a Board member is honoring his/her fiduciary responsibility to ICANN if he/sh relies on input from staff as definitive.
Rosemary Fei: (00:56) Under CA corporate law, directors are entitled to rely on employees to discharge their fiduciary duties, so long as the reliance is warranted, and the director has no reason to believe can't rely
Holly Gregory (Sidley): (00:56) good point Alan. Members of a board need to determine if their reliance on staff -- or expert or anyone else -- is reasonable based on the persons experience and diligence and that is the core of oversight
Jordan Carter (.nz, ccTLD member): (00:56) ANd further - the hardest thing is where conflicting advice comes, from staff v "community"
Jonathan Zuck (IPC): (00:56) I don't think they could fuction if they couldn't rely on staff. that feels case by case, not structural
Holly Gregory (Sidley): (00:57) Correct Jonathan;
Rosemary Fei: (00:57) So if director is aware of complaints about staff operations, director's fiduciary duty would be to investigate to determine validity of complaint, and if investigation reveals valid, then couldn't just ignore
Holly Gregory (Sidley): (00:57) Agree Rosemary
Alan Greenberg: (00:58) There are cases in the past and arguably now where reliance of such staff results in capture by that staff.
Rosemary Fei: (00:58) Agree, Jonathan, directors cannot be expected to know everything the staff knows, and micromanage staff
Alan Greenberg: (00:59) It can be construed as one of the reasons the cwg and ccwg felt so strongly about having independ. legal counsel.
Holly Gregory (Sidley): (00:59) By creating more rigourous mechanisms for the community to hold board accountable there should be a real counterweight to capture by the staff
Keith Drazek: (00:59) Transparency of staff briefing materials to the Board would help greatly.
Rosemary Fei: (00:59) +1, Holly
Jonathan Zuck (IPC): (00:59) +1 Keith
Rosemary Fei: (01:00) Community's role is to hold Board accountable; board's job to hold staff accountable
Holly Gregory (Sidley): (01:00) Keith, agreed that transparency can go a long way. At the same time, I am skeptical of systems that require board meetings to be fully open to public. Leads to more a legislative style of governance than a fiduciary style
Samantha Eisner 2: (01:00) I think that from a staff level we believe that we need to be accountable to the community, and not just the Board
Keith Drazek: (01:01) Thanks Holly, agree with the distinction you note.
Jonathan Zuck (IPC): (01:01) but Sam, how would you ever operationalize that "chain of command?" As a practical matter, you need to responsible to leadership
David McAuley (RySG): (01:01) I think Keith’s idea sounds plausible, though, maybe even if board briefing materials were disclosed with a lag in time (short)
Holly Gregory (Sidley): (01:01) The key is getting balance right between transparency and need for board to have opportunity to discuss and debate issues in private to come up with a consensus approach often reflecting some compromise that can be difficulat to achieve in public
Rosemary Fei: (01:02) Agree, Holly. Sam, staff reports to Board, not community -- how does community hold staff accountable?
Rosemary Fei: (01:02) Agree, Holly, that open board meetings create some problems
Mathieu Weill, ccNSO, co-chair: (01:02) @Sam: is it not the same as staff in corporation being accountable to customers while reporting to managers ?
Alan Greenberg: (01:03) @JonathN, PRINCIPLES AND OVERALL CONSTRAINTS COME FROM THE bOARD AND MANAGEMENT, DETAILS IMPLEMENTATION WITHIN THOS PROIN AND CONSTRAINTS FROM THE COMMUNITY.
Mathieu Weill, ccNSO, co-chair: (01:03) I meant serving customers but reporting to managers ?
Alan Greenberg: (01:03) Oops - sorry for caps
Holly Gregory (Sidley): (01:03) good point Mathieu re accountability of staff to customers
Samantha Eisner 2: (01:03) Mathieu, that's an interesting comparison.
Jordan Carter (.nz, ccTLD member): (01:04) ICANN staff might practically wish to be accountable to the community, but legally it's through the management to the Board through the CEO. We don't need to reinvent this relation.
Jonathan Zuck (IPC): (01:04) of course, it all comes down to enforceability and that path is through senior management and the board so while I might assign you the responsibility to act accountable to customers, you are ultimately accountable to me as your manager.
Giovanni Seppia (EURid): (01:04) #staffaccountability. See CENTR comment "any accountability process be linked and strongly supported by actions that improve the accountability literacy, culture and attitudes of the ICANN Board and staff."
Samantha Eisner 2: (01:05) I think that we've seen from experience that there's a need to make more meaningful redress points as it relates to staff actions, so that the community doesn't have to go through ways to make staff actions a form of Board inaction in order to try to challenge it
Jordan Carter (.nz, ccTLD member): (01:05) See CENTR comment above fm Giovanni
Rosemary Fei: (01:05) Customers can't really hold company reps accountable -- they have to get company management to do that. Empowered community in reference model has much more influence than a customer
David McAuley (RySG): (01:06) WS2 idea makes sense Thomas, as all accountability mechanisms are now based on current jurisdiction arrangements
Holly Gregory (Sidley): (01:06) agreed Rosemary, but good analogy in terms of staff recognizing key constiuency they must satisfy
Athina Fragkouli (ASO): (01:07) Thomas's suggestion makes sense to me
Izumi Okutani(ASO): (01:07) I agree wih the suggestion Thomas - for jurisdiction to go to WS2
Rosemary Fei: (01:07) Absolutely -- customer satisfaction should be an important metric to evaluate customer service staff
Holly Gregory (Sidley): (01:07) Juridiction topic is fundamental
Jonathan Zuck (IPC): (01:07) IPC comments reference an expanded role for Ombudsman as a mediator which I think applies to this question. There do need to be smaller escalations
Mathieu Weill, ccNSO, co-chair: (01:08) re: staff discussion. I sense a confusion of words. Accountability is not only the "discipline/ target setting"/ redress .. Also abatioout consultation, transparency...
Avri Doria: (01:08) in other words. no to my suggestion that this should not be pushed off to a WP. oh well, ok.
Cheryl Langdon-Orr: (01:08) @avri the W
Avri Doria: (01:09) i gurss it is good to have strong commanders.
Cheryl Langdon-Orr: (01:09) can do a review and prepare a briefing and
Jordan Carter (.nz, ccTLD member): (01:09) "pushed off"? isn't it simply having a few people to work on the detail, and then back to all of us?
Steve DelBianco [GNSO - CSG]: (01:09) I do not think we should separately look at Staff Accountability. They are accountable to the board, which is accountable to us
jorge cancio (GAC Switzerland): (01:09) external input should be judged on its merits, especially if voices from regions/stakeholders which are not so active ly participating within the CCWG
Cheryl Langdon-Orr: (01:09) the whole CCWG should then work on the matter IMO
Becky Burr: (01:09) +1 Steve and Thomas
Cheryl Langdon-Orr: (01:10) AGREE
David McAuley (RySG): (01:10) +1 @Steve
Cheryl Langdon-Orr: (01:10) sorry caps
Keith Drazek: (01:10) @Holly. Agree jurisdiction is fundamental to our work. I think any CHANGE to jurisdiction and/or headquarters can be WS2 issue.
Becky Burr: (01:10) i thought that meant you REALLY agree Cheryl
Avri Doria: (01:10) when did we discuss staff? you mean just now?
Holly Gregory (Sidley): (01:10) Agree with Steve that staff is accountable directly to board and board directly to Members/community
Izumi Okutani(ASO): (01:10) + 1 Steve, no need to seperate staff accountability
Athina Fragkouli (ASO): (01:11) Agree with Steve's comment
Avri Doria: (01:11) i think discussing the staff relationship to the community is a good topic we really should discuss and not sweep under the WS2 carpet.
Giovanni Seppia (EURid): (01:13) #staffaccountability. Sorry for the question, but has ICANN ever developed a survey on accountability among its personnel? I am not so sure staff perceives being accountable to Board and/or all community
jorge cancio (GAC Switzerland): (01:13) +1 Avri
Samantha Eisner 2: (01:13) Giovanni, I'm not aware of a survey during my time that addresses that issue specifically (since 2009)
Izumi Okutani(ASO): (01:14) BTW, I liked how Mathieu has described accountability, it is not about restricting, decipline, redress only but also about transparency and consultation
Giovanni Seppia (EURid): (01:14) @ Sam, At my time, we were not certainly told we were accountable to the Booard
Jonathan Zuck (IPC): (01:14) which is why it should be as narrow as a possible
Becky Burr: (01:15) agree that this is VERY difficult Kavouss - we have said that it is identified through the bottom-up multi-stakeholder process (including of course GAC)
Becky Burr: (01:15) i mean, definition of "public interest"
Avri Doria: (01:15) i disagree, in a multistakeholder bottomup organization we do not need to communicate to the staff only through the board.
Giovanni Seppia (EURid): (01:16) @ Avri, + 1
jorge cancio (GAC Switzerland): (01:16) We should not be deciding on opening or re-opening discussions right now. First we need a clearer picture of what are the major trends in the public consultation. It is much too early to decide on this, especially when such inputs have been made by non-active participantsof the CCWG
Jonathan Zuck (IPC): (01:16) Avri, not sure that communication and accountability are the same thing.
Avri Doria: (01:16) i agree. i am only making points when i thnk some comments are being handled and passed into WS2 a little too easily.
jorge cancio (GAC Switzerland): (01:16) ...who cannot make their case here
Samantha Eisner 2: (01:19) On the issue of defining the public interest, ATRT1 spent time on that issue and has pages within their report on the challenges that were faced in trying to do so. ICANN's strat plan and operating plan for the next year include a definitional exercise, with teh community, that will reach a community-agreed upon and understood definition of the public interest as an outcome of that work
David McAuley (RySG): (01:20) Our advisors (some) raise public interest in the context of accountability to groups beyond community. And advisor Wille Currie’s Mutual Accountability Roundtable idea seems a good one to end the potential for endless regression of notion of “guarding the guardians.”
Becky Burr: (01:20) i like the Roundtable idea as well
Chris Disspain: (01:22) Steve - thanks for the name check :-) I think that the impact anlysis needs to be a tad wider than my examples but I'm happy to help!
Cheryl Langdon-Orr: (01:22) I am not able to get off mute. sorry
David McAuley (RySG): (01:23) On impact analysis the board said (as I recall) it was working on questions , which would be better sooner than later
Cheryl Langdon-Orr: (01:24) staff have unmuted my line now
Holly Gregory (Sidley): (01:24) appreciate this very cogent summary re comments relating to stress testing
Avri Doria: (01:26) Does RB give us a new stress test when asking what happens in California becomes like Alabama? is that in the stress test pile?
Rosemary Fei: (01:26) Helpful summary, Steve.
Giovanni Seppia (EURid): (01:26) #Steve. Great summary. Thanks
jorge cancio (GAC Switzerland): (01:27) agree with idea of needing to be open about the comments, mentioned by Kavouss
Cheryl Langdon-Orr: (01:27) yes as usual excellent job steve
jorge cancio (GAC Switzerland): (01:27) we should not be defending the draft proposal, but trying to understand the gist of comments, especially those of "external" stakeholders
Keith Drazek: (01:30) I agree we need to have a fully open mind and seriously consider all comments, but I'm not afraid of defending the work product to date. This CCWG has done tremendous work and our initial proposal was, in my view, a strong first effort.
Cheryl Langdon-Orr: (01:30) agree @keith
David McAuley (RySG): (01:30) +1 @Keith
Avri Doria: (01:31) it depends on whether we consider comments as something to help us improve the proposal or as obstacles to be overcome.
Jonathan Zuck (IPC): (01:32) Avri, I think we'll find both ;)
Keith Drazek: (01:32) Constructive comments will help us improve, for sure.
Cheryl Langdon-Orr: (01:35) :-)
Jordan Carter (.nz, ccTLD member): (01:38) the amount of input and thought we have is outstanding
Jordan Carter (.nz, ccTLD member): (01:39) (I'd wish for more but it's great)
Jonathan Zuck (IPC): (01:39) +1 Jordan
Holly Gregory (Sidley): (01:40) approximately what comment numbers are we now on?
Jordan Carter (.nz, ccTLD member): (01:41) 58
Becky Burr: (01:41) 1 or 2, not that many
Mathieu Weill, ccNSO, co-chair: (01:41) Is it not 122 and beyond ?
Thomas Rickert, CCWG Co-Chair: (01:41) Brasil was fundamentally opposed to that, Steve
Rosemary Fei: (01:41) I thought fundamental bylaws section starts with comment 122, on page 28
Avri Doria: (01:41) making it fundemanetal runs up against dealing with the extended jurisdiction issue
Thomas Rickert, CCWG Co-Chair: (01:42) I found multiple comments speaking to that
Edward Morris: (01:42) Agree Avri.
Jonathan Zuck (IPC): (01:43) trouble hearing
Keith Drazek: (01:43) Fundamental just means a higher threshold for amendment, not that it's off the table.
Rosemary Fei: (01:43) Sorry, couldn't understand TIjani, bad line
Jordan Carter (.nz, ccTLD member): (01:44) it sends a signal in a particular direction tho, Keith, I agree wtih Avri
Alice Jansen: (01:44) We are now on page 33
Adam Peake: (01:46) Tijani: apologies, Alice and I couldn't hear your comment, bad line. Could you summarize in chat.
Keith Drazek: (01:51) @Jordan, yes, it does. It sends a signal that all the accountability mechanisms we're developing are secure, subject to community consensus in WS2 that a change is necessary or preferred. If ICANN's HQ and/or jurisdiction are easily changed, all our current work is built on quicksand. If anything is fundamental, shouldn't the legal foundation of the accountability mechanisms be first?
Roelof Meijer (SIDN, ccNSO): (01:51) @Alice&co-chairs: I am on the bridge from now on (in my car)
Thomas Rickert, CCWG Co-Chair: (01:52) Welcome, Roelof!
Alice Jansen: (01:52) Noted - thanks. Roelof!
David McAuley (RySG): (01:52) Single member panels do present issues that we need to think through, especially as to precedent
Jonathan Zuck (IPC): (01:53) Agree with Keith. Legal context shouldn't be easy to change, wherever it ends up
Chris Disspain: (01:54) well said Becky!
David McAuley (RySG): (01:55) Well said Becky
Avri Doria: (01:56) the requirement for ahving particpated in earlier comment processes has to to be tempered with some consideration of whether the appelant is an insider or not.
Edward McNicholas, Sidley Austin LLP: (01:56) Agree Becky. A significant tension exists between having binding arbitration and preserving the ability to have a court reconsider the IRP decisions. Courts would however remain as a backstop under the Federal Arbtiration Act with a limited scope of review
Alice Jansen: (01:56) WP2 call is on Wednesday 10 June 2015 from 21:00– 22:30 UTC
Rosemary Fei: (01:56) Is counsel needed on the call Becky just mentioned?
Alice Jansen: (01:57) we are now on page 46
Holly Gregory (Sidley): (01:57) Thanks Alice
Edward Morris: (01:57) While certainly understanding Keith's perspective if we're serious about dealing with jurisdiction in WS2 we shouldn't be making the headquarters location part of the fundamental bylaws in WS1.
Becky Burr: (01:58) Rosemary, I don't think so, we will be getting deeper into the contents and likely to have some questions coming out of the call, but not sure we will need to deal with them on the call itself
Giovanni Seppia (EURid): (01:58) @Alice and Co-chairs, I need to leave to attend another meeting. Thanks for the call, looking forward to reading the minutes.
Rosemary Fei: (01:59) OK, Becky. Just let us know if that changes. Thank you.
Becky Burr: (02:00) that's an interesting point Kavouss, which we will need to talk about. Some folks expressed concern about delay, etc.
Alice Jansen: (02:02) We are now on page 49
Alice Jansen: (02:02) 50*
Alice Jansen: (02:02) Please mute your line if not speaking
Keith Drazek: (02:02) Mute phones/computers please.
arasteh: (02:02) Thank Becky.We will find solution to avoid undue delay
David McAuley (RySG): (02:02) typist pls mute
Jordan Carter (.nz, ccTLD member): (02:02) Team, I have to apologise that I have not read all the material yet. My fellow rapporteurs have totally beaten me in this race.
Jordan Carter (.nz, ccTLD member): (02:02) Unlike Becky and Steve and co, I can't offer meaningful synthesis and views yet :(
Mathieu Weill, ccNSO, co-chair: (02:03) Comment #222 through 265
Holly Gregory (Sidley): (02:04) How do community groups currently hold the ACs/SOs accountable?
Chris Disspain: (02:05) the Sos and ACs ARE the community groupls
Jonathan Zuck (IPC): (02:06) Agree Avri
Holly Gregory (Sidley): (02:06) Chris, then the ability of the SOs and ACs to be the Members or select the Members should provide accountability (my question was rhetorical)
Steve DelBianco [GNSO - CSG]: (02:06) Agree, Chris. We need transparency about the composition of AC/SOs, and wnat to see that they each have internal mechanisms to avoid capture by one segment of their constituency
David McAuley (RySG): (02:07) The Mutual Accountability Roundtable (Advisor Willie Currie) is elegant, simple, effective, at least it seems so
Chris Disspain: (02:07) Agree Holly...provided that it is the SOs and Acs that ARE membera then it would be fine...
Chris Disspain: (02:07) and agree Steve
Holly Gregory (Sidley): (02:07) +1 Chris and Steve
Jordan Carter (.nz, ccTLD member): (02:07) that's what the UAs deliver them, Chris. :-)
Chris Disspain: (02:07) unfortunately it does not Jordan ...but let's not get in to that now!
Jordan Carter (.nz, ccTLD member): (02:08) a minority opinion there, but one to work through for sure
Jordan Carter (.nz, ccTLD member): (02:09) Counsel - have we looked into a version of the membership model where say individual participants in SOs and ACs became members of classes based on those SOs and ACs,?
Rosemary Fei: (02:09) What is the Mutual Accountability Roundtable?
Jordan Carter (.nz, ccTLD member): (02:09) And where votes are on our proposed ratios between those classes?
David McAuley (RySG): (02:10) referred to in Wille Currie's comment - an annual roundtable of challenge and explanation
Rosemary Fei: (02:10) We considered it. Having that many members raises a lot of issues
Holly Gregory (Sidley): (02:11) Jordan, yes there culd be classes of members and individuals could be appointed by the acs/SOs to represent them -- and not all classes must have the same rights. If there is a proposal that you would like us to study we will do so
Jordan Carter (.nz, ccTLD member): (02:11) Not based on that question. no.
Josh Hofheimer (Sidley): (02:11) +1 Kavous, but don't forget the CWG expects certain community power surrounding the Iana Function Review. I would count that as a seventh power, and one that depends on a Member model
Chris Disspain: (02:12) Rosemary, why are there more issues with lots of members than there are with a smakll number of members that in turn have lost of members?
Jordan Carter (.nz, ccTLD member): (02:12) we need to digest all of the comments and highlight teh issues, and talk them through in two weeks, befor eadopting model changes
Holly Gregory (Sidley): (02:12) Agree with Rosemary that one issue is how large do you want the Membership body to be
Keith Drazek: (02:12) +1 Kavouss. We want the simplest structure possible that still delivers the community powers we've identified.
Jonathan Zuck (IPC): (02:12) yes!
David McAuley (RySG): (02:12) Agree w Keith and Jordan
Chris Disspain: (02:13) Keith + 1 - in fact if we boil it down the ONLY area of disagreement here is whether 'legal enforceability' is a required power
Holly Gregory (Sidley): (02:13) Advisory bodies could have influence in membership body absent a vote -- just as the GAC is currently influential without a vote
Jordan Carter (.nz, ccTLD member): (02:13) SSAC not wanting "votes" and RSSAC teh same would be simpler. Governments not doing it even simpler. But that is probably leaping to a conclusion
Josh Hofheimer (Sidley): (02:13) +1 Holly
Avri Doria: (02:14) Holly, but other ACs dont have the supper bylaws powers that GAC has.
David McAuley (RySG): (02:14) bad connection
Rosemary Fei: (02:14) Chris, as Holly said, if you want to assign it, we can address the implications of having dozens or hundreds of members, versus a handful.
Holly Gregory (Sidley): (02:15) what super bylaws powers do you mean? Avri --
Mathieu Weill, ccNSO, co-chair: (02:15) @Rosemary @Chris : is this really a serious candidate ? Chris, could you elaborate on the model ?
Chris Disspain: (02:15) Sorry Mathieu - which model - you mean individuals as members...not a serious candidate as far as I'm concerned
Jordan Carter (.nz, ccTLD member): (02:16) Chris was asking a question, rather than proposing a model
Chris Disspain: (02:16) lots of individuals I meaN
Chris Disspain: (02:16) a small number may work well
Jordan Carter (.nz, ccTLD member): (02:16) Holly - I think Avri refers to the need for the ICANN Board to reconcile with GAC advice as required by th ebylaws
Mathieu Weill, ccNSO, co-chair: (02:16) @Chris: ok thanks. So let'snot wast's time lawyer's time (and Icann's money) on it ;-)
Jordan Carter (.nz, ccTLD member): (02:17) the UA model does what Tijani just said, his first point
Keith Drazek: (02:17) +1 Chris. Enforceability is a key question we'll need to resolve.
Jonathan Zuck (IPC): (02:17) and enforceability is not a "power" it is the reality or non reality of the other powers
Chris Disspain: (02:17) Jonathan + 1
Chris Disspain: (02:18) Roelof is making the same point now
Holly Gregory (Sidley): (02:18) Agree that it is not a model that has been seriously considered but al the individuals who participate in ACs /SOs could be members in classes defined to mirror the AC/SO and with vote power adjusted to assure that the vote was balanced in whatever way CCWG thinks best
Rosemary Fei: (02:18) Agree that deciding about level of enforceability is key; the discussion keeps coming back to it, without consensus.
Chris Disspain: (02:18) Roelof + 1
Jordan Carter (.nz, ccTLD member): (02:19) Even if we were only saying that "removing the Board must be enforceable", we still need to do all the things that make all the other powers enforceable as well, so we might need to look at the carry overs
Jordan Carter (.nz, ccTLD member): (02:19) / will need to look over everything :)
Alice Jansen: (02:19) now moving to page 65
Holly Gregory (Sidley): (02:19) without enforceability this is all a voluntary system. There is nothing wrong with a voluntary system -- except that any participant can undermine by not abiding by the voluntary agreement
Keith Drazek: (02:19) Alternatives to legal enforceability are smoke and mirrors, in my opinion. I haven't seen or heard any specific recommendation that secures the community powers in any way comparable to legal enforceability.
Jonathan Zuck (IPC): (02:20) yeah, I"m not sure enforceability is a question of degree. it is or it isn't
Jordan Carter (.nz, ccTLD member): (02:20) Keith: it's a case of deeming which of the set of powers have to be enforceable
Chris Disspain: (02:20) agree Johnathan
Jordan Carter (.nz, ccTLD member): (02:20) that's more granular than saying "ALL MUST BE!" or "NONE NEED TO BE"
Jordan Carter (.nz, ccTLD member): (02:21) There are already budget and strategy consultation processes, to be clea
Jordan Carter (.nz, ccTLD member): (02:21) and we have said improving them will be WS2
Jordan Carter (.nz, ccTLD member): (02:21) so this power really should be a reserve
Jonathan Zuck (IPC): (02:21) @Jordan but I guess it's also a question of whether true enforceability of some powers will be any different in perceived implications
Rosemary Fei: (02:21) Agree, Holly, on voluntary systems
Jordan Carter (.nz, ccTLD member): (02:21) Yep.
Holly Gregory (Sidley): (02:22) Agree Jordan -- but if any of the powers are to be enforceable, need to address the issue of legal personhood, so analysis of which powers should be enforceable doesn't avoid the very difficult issues re who would be members/designators with enforceable rights.
Becky Burr: (02:22) but don't we need legal persons to make any of it enforceable Jordan?
Holly Gregory (Sidley): (02:22) +1 Becky
Becky Burr: (02:22) great minds HOlly
Keith Drazek: (02:22) Yep.
Chris Disspain: (02:23) I think it's clear that any form of enforceability in a court needs legal personhood...that's why legal enforceability needs ot be decided as a principle
Rosemary Fei: (02:23) Directors and officers are legal persons -- natural persons -- and they have standing like members.
Jordan Carter (.nz, ccTLD member): (02:23) Becky: that was my point
Jordan Carter (.nz, ccTLD member): (02:23) if you solve it for one you might have solved it for the rest
Alice Jansen: (02:24) Now moving to page 69
Rosemary Fei: (02:28) Board may be saying that, regardless of legal power, Board can't change bylaws politically.
Becky Burr: (02:30) But Board HAS changed the bylaws over the objection of the only community group that was paying attention
Samantha Eisner 2: (02:30) @Steve, teh Board was endorsing the notion that the Board should not have unilateral ability to change Bylaws, particularly on the accountability related issues
Rosemary Fei: (02:30) Board does have legal power, now.
Samantha Eisner 2: (02:30) So supporting the proposal, not trying to re-frame the status quo
Steve DelBianco [GNSO - CSG]: (02:31) @Samantha -- thanks for that helpful clarification.
Holly Gregory (Sidley): (02:32) Thanks Samantha! Overall it looks like the ICANN Board is fairly supportive of the expanded communitypowers
Jordan Carter (.nz, ccTLD member): (02:32) Tijani: Adobe Connect *so* much better than phone :-)
Rosemary Fei: (02:32) Can we change "recalling" to "removing" -- to use different terms for individual directors versus full board?
Jordan Carter (.nz, ccTLD member): (02:33) +1 Rosemaryu
Holly Gregory (Sidley): (02:33) Remove individual directors; recall entire board
Keith Drazek: (02:34) @Tijani: I believe the appointing organization is the only body entitled to remove individual board members.
Rosemary Fei: (02:35) Corporate law does limit removal power to the member(s) that elected the director, but perhaps could bind members contractually to give community the right to make the decision.
Avri Doria: (02:35) i have to drop off the AC to go to the airport, but will try to stay on the phone bridge.
Holly Gregory (Sidley): (02:35) +1 Keith
Josh Hofheimer (Sidley): (02:36) +1 Keith, as to a "not for cause" removal
Jordan Carter (.nz, ccTLD member): (02:36) Kavouss, this information has all been provided in a table already.
Alan Greenberg: (02:37) Binding other AC/SO to remove the director of a particular AC/SO dies not address the problem raised. It still put s te power in the single ac/SO
Holly Gregory (Sidley): (02:37) WE are working on an update of the powers chart and are waiting for the formal questions from Kavouss to be certified. We have not seen these questions from CCWG yet.
David McAuley (RySG): (02:37) Thanks Rosemary - sounds like flexibility if we need it
Jordan Carter (.nz, ccTLD member): (02:38) We only need to provide for a "without cause" removal.
Steve DelBianco [GNSO - CSG]: (02:38) Kavouss is asking about powers that are 'exercisable' in each column. It's just as important to understand whether/how powers are enforceable
Holly Gregory (Sidley): (02:39) Jordan is correct that this information is already provided in a chart and we are looking at whether it needs expanding. In addition, on last call Kavouss was asked to put his questions in writing by the co-chairs so that they could be certified to us to answer if the co-chairs felt that they were not addressed to date.
Mathieu Weill, ccNSO, co-chair: (02:39) Such a table is on page 5 of https://community.icann.org/download/attachments/52890082/update%20Legal%20Assessment%20-%20Executive%20Summary%2C%20Summary%20Chart%20and%20Revised%20Governan....pdf?version=1&modificationDate=1430442481000&api=v2
Mathieu Weill, ccNSO, co-chair: (02:39) It is going to be updated with more details soon
Holly Gregory (Sidley): (02:40) Steve, we are including that info in the chart but still need other questions certified
Cheryl Langdon-Orr: (02:40) sorry team I have to lea e.
Cheryl Langdon-Orr: (02:40) now
Jordan Carter (.nz, ccTLD member): (02:40) ciao Cheryl
Leon Sanchez (Co-Chair, ALAC): (02:40) Thanks @Cheryl!
Holly Gregory (Sidley): (02:41) We could also expand on concept of advisory roles for SOs/ACs that dont want to be legal persons
Rosemary Fei: (02:42) Shortly before this meeting started, counsel provided responses to GAC questions, some of which touched on roles of SO/ACs that choose not to have a member avatar
Alice Jansen: (02:42) Page 73
Adam Peake: (02:43) https://community.icann.org/download/attachments/52890082/Response%20to%20Samantha%20Eisner%20Member%20Rights%20Chart.pdf?version=1&modificationDate=1433828616000&api=v2 might also be helpful. A response to quesions from Sam Eisner egarding member rights
Adam Peake: (02:43) (regarding)
Jordan Carter (.nz, ccTLD member): (02:43) I have a question to ask re stress-testing
Holly Gregory (Sidley): (02:44) Recall board -- not "spill"
Jonathan Zuck (IPC): (02:45) "spill" came originally from Tonkin, an ozzie
Mathieu Weill, ccNSO, co-chair: (02:45) oups sorry Holly
Rosemary Fei: (02:47) @Alan, a member could agree that it will not remove its director unless the community votes to do so.
Holly Gregory (Sidley): (02:48) I'm the "spill" police, Mathieu!
Rosemary Fei: (02:49) Like the threat of litigation, the threat of removal of a director, or recall of the entire board, should be threats whose very existence should make it unlikely they will be used.
Jordan Carter (.nz, ccTLD member): (02:50) +100, Rosemary
David McAuley (RySG): (02:56) Uh oh
Jordan Carter (.nz, ccTLD member): (02:56) oh bad timing Mathieur
Jordan Carter (.nz, ccTLD member): (02:56) -r
David McAuley (RySG): (02:57) Mathieu was spilled
Holly Gregory (Sidley): (02:57) good use of the term David
David McAuley (RySG): (02:57) Thanks Holly, er police officer
Mathieu Weill, ccNSO, co-chair: (02:57) I can still read !
David McAuley (RySG): (02:58) ;)
Mathieu Weill, ccNSO, co-chair: (02:58) Apologies folks, was the 3 hour time limit from my telco
Jordan Carter (.nz, ccTLD member): (02:59) so - we DO NOT need to propose the implications for our work by 16 June for the suggestions for what is next?
Jordan Carter (.nz, ccTLD member): (02:59) part 3 as Thomas just said is not part of the next ten days?
Mathieu Weill, ccNSO, co-chair: (02:59) @Jordan: if you CAN that's perfect, but not a MUST
Jordan Carter (.nz, ccTLD member): (02:59) ok
Holly Gregory (Sidley): (02:59) what are dates for the Paris meeting?
Thomas Rickert, CCWG Co-Chair: (03:00) correct, Jordan!
Mathieu Weill, ccNSO, co-chair: (03:00) 17-18 July
Leon Sanchez (Co-Chair, ALAC): (03:00) @Holly I anticipate that counsel attendance will be required under the same conditions of Buanos Aires
Jordan Carter (.nz, ccTLD member): (03:01) ANotehr question for THomas or Mathieu - are those judgements about the classifcation of ffeedback for the whole feedback in that area right - not per comment?
Adam Peake: (03:01) We are in final negotiations with a central Paris hotel. We will inform the group as soon as those negotiations are complete, expected within 24 hours. ICANN will support members and liaisons as was the case for other F2F meetings.
Rosemary Fei: (03:01) Thank you, Leon.
Rosemary Fei: (03:01) Adam, please include counsel in your room count
Holly Gregory (Sidley): (03:02) That is fine Leon. Have it on the calendar
Jordan Carter (.nz, ccTLD member): (03:02) great set of feedback
Rosemary Fei: (03:02) I do as well, Leon
Jordan Carter (.nz, ccTLD member): (03:02) thanks everyone
Leon Sanchez (Co-Chair, ALAC): (03:03) Thanks @Rosemary and @Holly
Jonathan Zuck (IPC): (03:03) thanks all!
Leon Sanchez (Co-Chair, ALAC): (03:03) Thanks all
Jordan Carter (.nz, ccTLD member): (03:03) Very reasonable question and thank you for asking it, Sebastien!
Pär Brumark (GAC Niue): (03:04) Thx all! Bye!
David McAuley (RySG): (03:04) Thanks
Rosemary Fei: (03:04) thank you, all
Holly Gregory (Sidley): (03:04) This has been a very helpful call. Look forward to reconnecting soon
Keith Drazek: (03:04) Thanks all.
Josh Hofheimer (Sidley): (03:04) bye all
Edward McNicholas, Sidley Austin LLP: (03:04) Have a good day; goodbye.
Athina Fragkouli (ASO): (03:04) thank you all
Izumi Okutani: (03:04) Thanks bye all
Sébastien (ALAC): (03:04) And maybe also opening the WP?
Martin Boyle, Nominet: (03:04) bye & thanks
jorge cancio (GAC Switzerland): (03:04) thanks and bye
Leon Sanchez (Co-Chair, ALAC): (03:04) bye everyone
Kimberly Carlson: (03:04) Bye, thank you
