Sub-Group Members: Avri Doria, Becky Burr, David McAuley, Gary Hunt, Greg Shatan, Malcolm Hutty, Paul Rosenzweig, Par Brumark, Robin Gross, Steve DelBianco (9)
Staff: Adam Peake, Berry Cobb, Bernard Turcotte, Kim Carlson
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
- Adobe Connect recording is available here: https://icann.adobeconnect.com/p3g4apcuo6j/
- Audio recording is available here: http://audio.icann.org/gnso/gnso-wp2-08jul15-en.mp3
Two main areas for the group to review, 1 the mission and core values and commitments statements, some significant comments to review, and, 2 significant issues on the IRP.
Today focus on the mission and core values and commitments statements portions. Discussion of the issues we saw.
Malcolm, review doc " WP2: Categorising Public Comment Replies" To index and access comments we received, don't miss comments. Organize thinking.
Seeking common topics under discussion, even opposing points of view.
Sub-topics on page two and groupings. Each had multiple comments. page 3 discusses what the topics were
ICANN powers should be defined powers. Including that ICANN should not undertake activities outside the powers, and comments that ICANN should consider Human Rights.
17 spoke to the idea of enumerated powers. 19 spoke about ICANN to have a general regulatory power. Or spoke to HR and freedom of expression as outside the powers. Contract compliance issues, mainly from those in the intellectual property community
Need to reconcile views, for example over those of the human right community and IPR community.
Core values and balance against commitments
ICANN and govt and the law
Concept of private sector lead, vs public policy lead etc. Deference that should or should not be given to the GAC and GAC advice.
The requirement to comply with local law or international law.
Some concerns or divergence or new ideas about what the core values should be. Multistakeholderism, and adherence to that. Use of the phrase public good or public interest. A technical section about consumer choice, and ref to para 60 and para 337.
Issue of enforceability. Mutability and ability to change the core values, should they be fundamental bylaws etc.
The non DNS elements of ICANN's role: numbers, protocols, relationship with ccTLDs. Mainly comments about preserving their independence from ICANN.
No specifics, mainly to the proposal as a whole.
Some issues about what the process should be, methodology etc.
Comment, in WP1 working by piecemeal comment analysis, and much harder to update. Very easy in this consolidated form. And we all need to update the PC tool and explain to commenters what we have done
Comments on the categories being proposed?
Big groups of comments: concern that the balancing test needs to be refined and thought about more carefully, and this goes to the issues of public good and public interest. Needs discussion
Difficult when we do not know the reference model. And we are in some state of flux. For the group today, they are model neutral. The underpinning will be the mission and core values
The threshold question, we didn't explain why we are suggesting change. Is it in the document?
See para 68 of the proposal. When we discussed this, the discretion given with respect to balancing is very broad, and in an IRP etc, there will be deference given to the decision maker with respect to the balance. Are we comfortable with that? Are there some matters that they are so fundamental that they balancing should take note of that.
Responses: looks like you are sacrificing these values to the public interest.
Some responded positively, that we were saying those core values must be met. And others who said that this was importing a very US jurisprudence approach. Suggests that the language too specific.
The test is commonly used, but in Canadian and European law there's an approach abut commonality. But the criticism was to not model too closely on a legal approach from some specific jurisdiction.
Remove the specific language and make higher level, that ensures fundamental commitments are adhered to in all cases.
Keep 71 or something like. Replace 72-76 with a more general statement. In carrying out its work ICANN should strive to fully adhere to these commitments and core values. What examples can we think of to test this?
Commitments, not core values. No read off in the fundamental commitments.
Para 76 needed or a general para 76. In relation to core values need to retain para 76.
In terms of commitments they shouldn't need a trade off, though not sure its always possible, so we might need kind of para 76.
Sense an appeal to the approach, but need to see text to feel comfortable with it.
About para 76 discussion, need to get text to the list to continue discussing about this. Action item for Becky and Malcolm to deliver this.
Public interest, concern about how to identify this, and then that it wasn't getting enough attention. The public interest would be identified through the bottom up process. para 105.
Competing concerns. that the public interest wasn't getting enough focus, and that it was too vague a phrase. Views on this?
Para 105: No comma before identify, which means we believe the bottom-up process inherently leads to the public interest. Looking for ways to constrain the ICANN mission.
Not sure how either of the 2 sides could be made stronger.
The public interest takes on what is perceived by the eye of the beholder. A platonic ideal. Don't know how it will be applied.
A number of comments to say that the inclusion of public interest should not be an excuse to expand the work of ICANN
Suggestion of bottom-up process and within ICANN's remit. Strengthen, by including reference to ICANN's remit. Agreement?
If that's the way then several commenters have suggested language to do that.
Private sector led language, with the explanation of what it means. And some govt want to remove that. Some noted link to the NTIA requirements. Some governments felt it would reduce the leverage of non commercial interest. Clarifying text?
Para 110. Adding new language. Comments supported the red text. Important to the Board and IRP panel to give support to say no to GAC advice.
Govt notion of sovereignty and public policy knows no bounds. So a different way of saying it, that there are limits to this
Concerns were about deference to the govt.
Concerns about capture. Square bracket language about avoiding capture, Text we should write or the outcome of a process. Avri: get the right wording and include it
Steve: not explicit, but many places in the proposal that seek to avoid capture.
Para 111. Leave as is?
Many comments starting Para 60 and 337 consumer choice. From the AoC. OK in some of this in terms of competition, security and stability, but didn't address other issues in the same way. We brought in the reviews, and that the first para commitments of the reviews should be brought into the bylaws.
Starting with malicious abuse and rights protections seem to be issues people were concerned about being missing.
But what are the issues being referred to when saying what sovereignty concerns, malicious abuse and rights protections actually mean. They were omitted for these lack of clarity issues and no easy place to put it. Perhaps context is needed, and it is in the AoC. As it expands is unclear, ways to make this clearer.
Then commitment would be in expanding the top level space, its expansion this things will be addressed.
Rewordsmithing the AoC language is a concern. Not ambiguous. Says what we need it to say. Care not to renegotiate the AoC, when we are importing.
Suggestion: ICANN will ensure that its expansion of the top level domain space will adequately address issues of, etc.
Greg against change to text. And the suggestion actually changes the proposal's intent.
OK with Becky's language? Get back on the list?
Mission statement and avoidance of doubt.
Monday's call - focus on the IRP. Comments not organized quite the same way. And hope to circulate another version of the core values, mission etc before the next call. Also the stress test party test #23 related to the IRP. And will be on the agenda. Has question and will send by email.
Action item: Para 76 discussion, need to get text to the list to continue discussing. Action item for Becky and Malcolm to deliver text.
Kimberly Carlson: (7/8/2015 14:17) Welcome to CCWG Accountability WP2 Meeting #7 on 8 July 2015! 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
Becky Burr: (14:59) hello all
Pär Brumark (GAC Niue): (14:59) Hi all!
Greg Shatan: (15:00) Hello all.
Avri Doria: (15:00) hello again
Bernard Turcotte Staff Support: (15:00) hello all
Adam Peake: (15:00) hello again Greg
Adam Peake: (15:00) hello all
David McAuley: (15:00) Hello everyone
Kimberly Carlson: (15:01) Hi Becky, just let us know when you're ready for us to start the recording
Kimberly Carlson: (15:01) thank you!
Steve DelBianco [GNSO - CSG]: (15:02) Another conference call ....
Steve DelBianco [GNSO - CSG]: (15:02) Adam -- same doc you loaded for ST WP today
Malcolm Hutty: (15:02) My fourth today
Robin Gross [GNSO - NCSG]: (15:03) "It's déjà vu all over again".
Paul Rosenzweig: (15:03) No worries ... we love doing this!
Avri Doria: (15:04) entering 9th hr of conference call. yay! not all icann though. its like i get to be with my friends all day, almost as good as a f2f meeting.
Paul Rosenzweig: (15:05) The sharing just went away ...
Adam Peake: (15:07) you should have scroll control
Becky Burr: (15:10) working now Paul?
Steve DelBianco [GNSO - CSG]: (15:11) this format should make it easier to 1. Analyze comments; 2. Update our draft; and 3. give consistent explanations in the public comment tool
Paul Rosenzweig: (15:15) Yes working ...
Steve DelBianco [GNSO - CSG]: (15:15) what page are you speaking to, Malcolm?
Berry Cobb: (15:15) p. 6
Berry Cobb: (15:16) p. 7
Becky Burr: (15:16) pages 3-4 have a summary of the topics
David McAuley: (15:17) And the table I think Malcom is using is on page 2
David McAuley: (15:17) Malcolm, that is
Berry Cobb: (15:18) Yes, my bad. P. 4 ; the others were inventory of comments
David McAuley: (15:20) Nicely done, Malcolm, thank you
Robin Gross [GNSO - NCSG]: (15:22) sounds good
Steve DelBianco [GNSO - CSG]: (15:24) no objection
Paul Rosenzweig: (15:24) Gofor it
Steve DelBianco [GNSO - CSG]: (15:26) 
BC asked a threshhold question: Regarding the balancing test among competing Commitments and Core Values, the BC seeks clarification as to why changes are needed to existing language. Any amendments to the existing language should promote prompt resolution of issues – not the lack of action.
Malcolm Hutty: (15:27) +1 Becky, These issues are orthogonal to the enforcement model used to achieve them
David McAuley: (15:27) OK thanks Becky
Steve DelBianco [GNSO - CSG]: (15:30) Para 78 explains it, too, right?
Steve DelBianco [GNSO - CSG]: (15:32) Q: do we have any examples of where the board had to do a balancing test in the past, and reached strange conclusions?
Steve DelBianco [GNSO - CSG]: (15:32) oh, a number of us had a proposed definition for Public Interest:
David McAuley: (15:32) 78 is a fair explanation and no, I personally cannot think of an example
Steve DelBianco [GNSO - CSG]: (15:33) For ICANN, Public Interest is maintaining the availability and integrity of resolutions and registrations of domain names.
Avri Doria: (15:38) is langauge being suggested?
Steve DelBianco [GNSO - CSG]: (15:38) paragraph numbers, please
Robin Gross [GNSO - NCSG]: (15:39) Malcolm's approach sounds good to me.
Steve DelBianco [GNSO - CSG]: (15:39) just please tell us which paragraph you are proposing to change
Steve DelBianco [GNSO - CSG]: (15:40) Malcolm, if you have new text please paste into the chat
Avri Doria: (15:42) i think we need a para 76
David McAuley: (15:44) This approach may have promise but like Steve I think we will need text to really know
David McAuley: (15:45) Sounds good to me
Malcolm Hutty: (15:45) Works for me
Robin Gross [GNSO - NCSG]: (15:45) agreed
Paul Rosenzweig: (15:45) That will work -- but I am skeptical that at some point core values won't come in conflict.
David McAuley: (15:45) Agree with Paul - some conflict seems inevitable
Malcolm Hutty: (15:46) But for clarity to Avri, I don't think we were talking about eliminating para 76, but merging para 72-75
Malcolm Hutty: (15:46) Core values will come into conflict as they are more aspirational, so some balance will be needed. Commitments are more specific and narrowly drawn, so we may hope to avoid conflict
Steve DelBianco [GNSO - CSG]: (15:47) @Malcolm -- that distinction between Commitments and Aspirational Core Values is quite helpful, thanks
Malcolm Hutty: (15:48) Of course, to follow that, and be assured what I say is accurate, we need to get content of commitmnets and core values correct, and make sure things are placd in the correct category
Steve DelBianco [GNSO - CSG]: (15:48) as written, para 105 says the bottom-up M-S process will inherently reflect the Public Interest. Are we really saying that?
Robin Gross [GNSO - NCSG]: (15:49) I think that is right, Becky.
Robin Gross [GNSO - NCSG]: (15:50) The bottom-up process may be the best we've got to make that determination. Even though not perfect and mistakes will be made.
Robin Gross [GNSO - NCSG]: (15:50) about what "the public interest" is
David McAuley: (15:52) I think that lack of comma prior to "identified" in 105 is a fair comment and represents an issue that will garner further attention
David McAuley: (15:52) Steve's comment that uis
Steve DelBianco [GNSO - CSG]: (15:52) Now, IF we wanted CCWG to define Public Interest for ICANN, here's a proposal: For ICANN, Public Interest is maintaining the availability and integrity of resolutions and registrations of domain names.
Steve DelBianco [GNSO - CSG]: (15:52) We COULD propose that definition, Avri
Steve DelBianco [GNSO - CSG]: (15:54) Paul -- para 105 is unconstrained
Malcolm Hutty: (15:54) +1 for constraining to remit of ICANN
Robin Gross [GNSO - NCSG]: (15:54) The ideas are not irreconcilable, so the activities are limited
David McAuley: (15:54) Agree w Paul and thus like Steve's narrow statement of public interest
Steve DelBianco [GNSO - CSG]: (15:54) I don't know what Paul is suggesting for 105
David McAuley: (15:54) in his proposed language
Robin Gross [GNSO - NCSG]: (15:55) "the bottom up process" & within ICANN's remit.
Avri Doria: (15:55) i am suggesting we essentially leave 05 alone and explain how it balances things. i do not accept moving to Steve's defintion, too many words to argue over.
Avri Doria: (15:55) ... leave 105 ...
Paul Rosenzweig: (15:57) If as Steve says it is unconstrained, then my view is it needs to be ...
Malcolm Hutty: (15:57) @Robin: works for me
Avri Doria: (15:57) adding Robin's tag is ok.
Paul Rosenzweig: (15:57) Yes, language like Robin's fits ... "within the bounds of ICANN's authority" or some such
Steve DelBianco [GNSO - CSG]: (15:57) @Avri -- too many words?? My proposed def of Public interest is just 10 words!
Avri Doria: (15:58) too many words to argue over the meanings of.
Paul Rosenzweig: (15:58) Salieri: "Too many notes Herr Mozart" :-)
Steve DelBianco [GNSO - CSG]: (15:58) 10 words: maintaining the availability and integrity of resolutions and registrations of domain names.
Steve DelBianco [GNSO - CSG]: (15:59) which page should we be looking at?
Steve DelBianco [GNSO - CSG]: (16:01) para 110: While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account the public policy advice of governments and public authorities in accordance with the Bylaws and to the extent consistent with these Fundamental Commitments and Core Values.
Robin Gross [GNSO - NCSG]: (16:04) I don't like the language about governments are "responsponsible" for public policy. That isn't how multi-stakeholderism works.
David McAuley: (16:04) Agree with Steve and, it sounds like, Avri - taking private sector out reduces language there now and could arguably and implicitly enlarge power of governments, IMO
Becky Burr: (16:05) agree Robin - that is the language in the existing bylaws and i was concerned about a bigger storm in taking it out
Greg Shatan: (16:05) CURRENT BYLAW: While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments' or public authorities' recommendations.
Robin Gross [GNSO - NCSG]: (16:06) Too bad. That was a mistake to pass that bylaws. I missed it.
Adam Peake: (16:07) (sorry, lost connection for a miniute to so)
David McAuley: (16:07) Avoiding capture seems largely an effect or result and best way to approach is to design system that operates to avoid capture by any one interest, public or private
Steve DelBianco [GNSO - CSG]: (16:07) Becky please repeat the question/dilemma
David McAuley: (16:08) Fair enough @Avri
David McAuley: (16:10) no, 111
Avri Doria: (16:10) i can try on 111
David McAuley: (16:10) bracketed language
Paul Rosenzweig: (16:10) Isn't that the problem -- what language could we propose. I don't care that much to fight it, but this is an outcome, not a process rule
Avri Doria: (16:11) e.g to ensure that ....
Avri Doria: (16:11) that makes it a goal not a rule.
Steve DelBianco [GNSO - CSG]: (16:11) we do have to dicuss para 60
Avri Doria: (16:11) makes it a value.
David McAuley: (16:12) Becky, can we spend five min at end to plan Monday's call and WP2 vision for Paris meeting
Steve DelBianco [GNSO - CSG]: (16:14) ICANN will ensure that as it expands the top-level domain space, it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection.
Steve DelBianco [GNSO - CSG]: (16:15) that's para 336 VERBATIM fom the AoC
Steve DelBianco [GNSO - CSG]: (16:15) If we are bringing the AoC commitments into the bylaws, lets actually do that.
Steve DelBianco [GNSO - CSG]: (16:16) context is expansion of the gTLDs, Malcolm
David McAuley: (16:17) Agree w Becky - the problem we will face will be the word "adequately" which is in AoC - means different things to different folks
David McAuley: (16:19) I don't think that is it Malcolm
David McAuley: (16:19) but maybe I am wrong - it is not all that clear
Paul Rosenzweig: (16:19) All ... my regrets, but I must depart for a family event. I will join you again on the next call and see you all in Paris
David McAuley: (16:19) Thanks Paul
Steve DelBianco [GNSO - CSG]: (16:20) "as it expands the top-level domain space, it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection." that's the direct quote
Becky Burr: (16:21) thanks Paul
Becky Burr: (16:21) Malcolm's suggestion is consistent i think Steve
Malcolm Hutty: (16:21) "As it expands" is ambiguous as to whether it mean "coincidentally with" or "coterminously with"
Steve DelBianco [GNSO - CSG]: (16:22) my advice is to import the AoC text (including context) into bylaws.
Steve DelBianco [GNSO - CSG]: (16:23) yes, becky
Becky Burr: (16:24) ICANN will ensure that its expansion of the top level domain space will adequately address issues of competition, etc.
Becky Burr: (16:24) does that work?
Malcolm Hutty: (16:24) I like that text Becky
Steve DelBianco [GNSO - CSG]: (16:24) Fine, Becky
Steve DelBianco [GNSO - CSG]: (16:24) as long as you bring it ALL over
Becky Burr: (16:24) gotcha
Malcolm Hutty: (16:25) Saying "don't change text of AOC" sounds nice, but this text did not appear in AOC in splendid isolation
Steve DelBianco [GNSO - CSG]: (16:25) @Malcolm, Greg is suggesting we RETAIN the context of gTLD expansion. Be fair
Malcolm Hutty: (16:26) Taking one sentence from AOC in isolation does introduce new ambiguities you will not find if you import the whole chapter of the AOC - which is of course not reasonable. Which is why clarification is needed
Steve DelBianco [GNSO - CSG]: (16:26) Greg -- you are agreeing with Becky, actually
Steve DelBianco [GNSO - CSG]: (16:26) She is importing the same AoC text
Avri Doria: (16:26) i think the Becky text is fine.
Avri Doria: (16:27) the text we brought forward was a fragment, this is like bandaid on the fragment.
Greg Shatan: (16:29) ICANN will ensure that as it contemplates expanding the top-level domain space, the various issues that are involved (including competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection) will be adequately addressed prior to implementation.
Malcolm Hutty: (16:30) Great, let's go with what Becky said
Avri Doria: (16:30) at this point saying while contemplate doing something we already did may be confusing.
Greg Shatan: (16:30) Oy gevalt.
David McAuley: (16:30) It was a good joke Becky
Adam Peake: (16:31) https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-en
Greg Shatan: (16:31) Mene Mene Tekel Upharsin.
David McAuley: (16:31) maybe we should do green arrows
David McAuley: (16:31) could not understand Avri's comment - poor connection
David McAuley: (16:31) better connection now
David McAuley: (16:31) green checks that is
Steve DelBianco [GNSO - CSG]: (16:32) Okay
David McAuley: (16:32) I will say OK too
Greg Shatan: (16:33) Okay three
David McAuley: (16:34) brief plan for monday
Adam Peake: (16:34) Becky, before you close the call, could you ask if anyone is only calling in by phone, and not in adobe room?
Greg Shatan: (16:35) I'm good for another few hours....
Greg Shatan: (16:35) I've run out of calls.
Greg Shatan: (16:35) And there's no 2 am call tonight, unfortunately.
Greg Shatan: (16:37) No worries, there's one Thursday night.
Robin Gross [GNSO - NCSG]: (16:38) thanks, bye
Bernard Turcotte Staff Support: (16:38) bye all
Greg Shatan: (16:38) Bye all!
David McAuley: (16:38) Bye all
Gary Hunt - UK Government: (16:38) Bye!