This document is a repository of questions the CCWG-Accountability was asked during its webinars on the Second Draft Proposal. It attempts to encapsulate the responses that were given. For more information, please refer to webinar archives available at: https://community.icann.org/pages/viewpage.action?pageId=54692681

4 August Webinar

QUESTION: In the past, the Board has had the responsibility to either resolve Community disputes or else to act in the face of disagreements between Community members. How does this change in the new framework and how does the new Accountability framework affect Board action in this regard? 

The CCWG-Accountability does not change the day-to-day responsibilities or functioning of ICANN. It creates escalation mechanisms to deal with exceptional circumstances. As such there should be no changes in this regard. Where questions arise as to whether an ICANN action violates the Bylaws aggrieved parties might be able to use the RFR or IRP and, depending on the subject concerned, one of the community powers might be invoked.

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QUESTION: Are the "structural reviews" referenced on slide 6 the periodic reviews of ACs and SOs already contained in ICANN bylaws -- or something different/additional? 

Yes, slide 6 refers to the current periodic reviews of ICANN structure and operations ICANN Bylaws require (see section 4).

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QUESTION: with a need for so many panellists in the independent review process, is there a risk that we create a "community of panellists" that end up controlling ICANN's decisions?

It is envisioned that there would be at least 7 panelists in total. This would be the same as the Public Interest Commitments Dispute Resolution Procedure (PICDRP) and far less than the Uniform Domain-Name Dispute-Resolution Policy (UDRP). The number was chosen to have a pool of panellists available and to meet diversity requirements.  Moreover, the mandate of the IRP is limited to resolving questions about whether a particular action or inaction violates ICANN’s Bylaws and Articles of Incorporation and should not impinge on ICANN’s ordinary processes and procedures.  Finally, the existence of an independent judiciary is fundamental to good governance. 

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QUESTION: How likely is it that foreign sovereign governments will submit to voting membership in a California unincorporated non-profit association like the proposed Community Mechanism?  Doesn't the GAC need to do this as a whole?  How will refusal by one government to participate on that basis affect GAC participation in the CA unincorporated non-profit association?

Based on the CCWG proposal, the GAC collectively would, if it chose to do so, participate in the Community Mechanism as Sole Member. It does not, however, have to become an unincorporated association itself to do so. In this model, governments do not have a different relationship to the GAC than they do today.

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QUESTION: Does CMSM process apply only to the 5 powers enumerated on slide 12?  In other words, what is community recourse against Board decisions with which it disagrees but that do not fall within the 5 situations listed on slide 12? 

The process applies to these 5 powers. We are not proposing that this mechanism would be used to interfere with other work (e.g. PDPs). The CMSM would have all the rights of a member provided for by the law, but exercising those powers would require a high threshold of consent from all CMSM participants – higher than exercising the five powers. In addition, community members may be able to use the  RFR and IRP where it is applicable.

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QUESTION: Is SO/AC decision to use power based on a simple majority vote or some higher threshold?

High thresholds are proposed for exercising any of the powers, but a simple majority is all that is needed for an SO or AC to petition to use a power.

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QUESTION: SOs and ACs definitely become part of a California unincorporated non-profit association governed by certain provisions of the California Code.

SOs and ACs are already part of a California non-profit corporation – they are part of ICANN. In participating in the CMSM, the SO or AC does become a participant in an unincorporated association (the CMSM itself), but participants in the SO/AC do not. The individual SO or AC does *not* need to be recognised as an unincorporated association. This addresses one of the key concerns raised with the previous model of individual SO/AC membership.

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QUESTION: How many votes does each AC/SO get in the Decision phase?

The proposal is to allocate 5 votes available to each of the following:- ASO, ccNSO, GNSO, GAC and ALAC. There would be two votes available to each of the following: RSSAC and SSAC.

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QUESTION: On slide 14, what is the "governing body" of e.g. GNSO? 

The discussion inside the GNSO would likely be held at the stakeholder group level and conveyed via the GNSO Council Chair. However, it would be up to the GNSO to determine how decisions are made.

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QUESTION: My understanding is the "Single Member" is a California unincorporated non-profit association governed by certain specific provisions of the California Civil Code.

Correct.

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QUESTION: Shouldn't the voting be weighted depending on the issue? For example, if it is a gTLD issue, should the GNSO vote be weighted above that of the ccNSO and ASO and vice versa

What ICANN does regularly does not change. Accordingly, the GNSO and the ccNSO will continue to be responsible for policy development within their respective domains.  Voting is for special powers that affect all parties equally and is not a specific SO/AC issue. When it comes to specific group issues there is the Independent Review Process (IRP). Members of a particular AC or SO can directly file an IRP and seek a binding decision based on new bylaws standard of review. In other words, the community powers won’t generally affect one SO or AC particularly.

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QUESTION: Is there a consequence of the GAC not deciding to vote?

The consequence would be fewer votes available to be cast in the CMSM. All the voting thresholds are a percentage of available votes. It would not have a direct impact per se.

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QUESTION: Slide 16 seems to imply that GNSO has already decided to participate in the Community Mechanism. Is this correct?

No one has reached the decision-point yet, but initial signals indicate that the GNSO is favourably inclined to participate.

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QUESTION: The CMSM has, for example, five RIR members (i.e., one for each of the RIRs) and five GNSO members (I.e., one for the 1000+ gTLD registries). This is an apparent disparity but I am interested in the discussion that led to this model so I can better understand it. There is a similar disparity that there are only 5 ccTLD members.

Each AC/SO can subdivide its allocated votes as they see fit. There is no requirement to do it by region. The five SOs and ACs with five votes each are those the CCWG sees as most tightly connected to large Internet community constituencies. The lesser voting weight proposed for the remaining ACs are due to their advisory nature or the small number of parties involved in their work. Voting is for special powers that affect all parties equally and is not a specific SO/AC issue, so all groups are likely affected equally.

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QUESTION: What is the mechanism through which future changes/corrections could be made?  For example, it is theoretically possible that  (a) if there are only 7 members of the IRP standing panel; and (b) each IRP has a 3-person panel, it could be the case that, depending on the number of IRPs, the panellists could be overwhelmed. Similarly, for example, the proposal to have the Ombudsman make the initial recommendations on Requests for Reconsideration to the BGC can only achieve its purpose of taking the ICANN legal dept. out of the loop, if the Ombudsman is required to work independently of and without consulting the ICANN Legal Department. If that requirement is not dealt with as an "operational detail", what's the mechanism to fix in the future? A Bylaws amendment? 

The current proposal is to create a standing panel of at least 7 members, but that number could change based on experience, case load, etc.  The mechanisms for adjustments of this type will be developed as part of Work Stream 2 and, of course, subject to community review and input.  This would probably not require a further Bylaws change.  Likewise, the whole question of the ombuds role is the subject of Work Stream 2, again subject to community review and input.  As part of Work Stream 2, the CCWG may well recommend that Ombuds charter now spelled out in the Bylaws be adjusted to provide greater independence, which would require a Bylaws change.  Even today, however, the Office of the Ombudsman enjoys a certain measure of independence that makes it a better choice for undertaking initial review of the Requests for Reconsideration.

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QUESTION: Would the co-chairs wish to comment on the numerous objections which have been raised on the CCWG mailing list regarding process, lack of adherence to the WG's charter, the rapid turn-around of documents for discussion, the general rapidity of discussion and decision making process, etc.?

CCWG-Accountability has been working for many months now (weekly teleconferences and multiple face-to-face meetings). This report is the result of an iterative process. We have thoroughly used the public comment received on the first proposal.. The number of individuals objecting - as opposed to the number of participants - is low. It is normal for bigger projects to be criticized about speed. Some areas of the report already enjoy broad community support although we have outstanding questions to discuss. The process is as inclusive as can be.

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QUESTION: Not all of the 5 powers are "last resort" or "community wide" powers.  E.g., review of a bylaw amendment that affects only one SO.

Bylaw changes affect all groups as they are the rules by which the organization shall work. Hence, the community power needs to be jointly exercised following the described escalation path.

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QUESTION: Does CMSM process apply only to the 5 powers enumerated on slide 12? 

Yes, the CMSM would apply only to the 5 powers enumerated. Everything else would continue to work as it does today.

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QUESTION: We are relying too heavily on Board removal, which is a nuclear option. In ICANN's history, the nuclear option doesn't work.  We need a mechanism to override a decision of the Board by overwhelming majority of the community where the Board just got a decision wrong not due to malfeasance which would warrant removal.

We agree that we should not rely too much on the Board removal power.  Note that the hurdles for Board recall are quite high. Also, we have the other powers, including a binding IRP.  

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QUESTION:  What is basis for CCWG conclusion it has met all CWG-Stewardship requirements, when it has not made ccTLD delegation/redelegation decisions subject to review? 

Please refer Stress Test 21 which addresses redelegations, ccTLDs and IRP. The ccNSO has formally requested to be exempt given their wish to develop policy on this. While the CWG has not formally responded whether their requests have been sufficiently addressed, we have not heard anything suggesting this is not the case despite close collaboration and co-ordination at the leadership level.

7 August Webinar

QUESTION: Is there a stress test designed for situations of regulatory capture?

There is a stress test in the category III. Legal/Legislative Action ST#4. Please refer to page 96 of the report.

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QUESTION: There is no mention of the duration of examination of complaints IRP. Will this be added when you will submit the final report to Chartering Organizations?

There is a reference in the report that indicates that they should strive to do render decisions as efficiently in a 6-month timeframe. If they are unable to render that decision, they will issue an interim report.

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QUESTION: The findings/summary of public comments ought to be offered formally to the CCWG and made generally available. Discussions in Buenos Aires on entirely new legal accountability mechanisms began before the 1st public comment period findings could be reported.

The summary of public comment period will be published. We are in the process of finalizing a very thorough summary. We will do the same for PC2 where we will respond to contributors. The public comment summary will be published in a fortnight. However, the comments made by the community have been the basis for this report and have led to many changes, some of which were substantial.

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QUESTION: On point 4: is the appointing body the only authority to remove its appointed director (item 5 notwithstanding)?

Yes, this applies to the seven directors appointed by the SOs and ALAC. The appointing body is the removing body. The alternative is the removal of the entire Board. The NomCom cannot remove anyone. Current Bylaws allow for the Board to take action against fellow Board member currently.

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QUESTION: What was the problem in removal of a NomCom Director?

The NomCom is not entitled to remove its Directors. Please refer to p58-59 of the report. SO/ACs can petition for the removal of a NomCom Director. Any SO/AC can pass the petition to trigger the process. This would be followed by dialogue. Participating SO/ACs will then to decide whether to remove that Director or not. Please note that none of these powers would apply to CEO.

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QUESTION: Is the community empowered to take checks on the flow of revenues? Is there financial accountability to the community?

The only financial power we have proposed is the ability to veto budget. Beyond this power, if ICANN Board choose to make unrealistic expenditures there is opportunity to remove individual Directors or the Board.

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QUESTION: Who can answer the question of why the Board's right to remove individual Directors is being restricted?

Please refer to the memo from 23 April 2015 entitled “Legal Assessment: Executive Summary, Summary Chart and Revised Governance Chart”: If the CCWG-Accountability’s Single Member Model is implemented, the Board could only remove directors for causes specified in the California corporate code. For further detail on legal advice provided, see Appendix G.’

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QUESTION: According to the 5/5/5/5/5/2/2 power exercising distribution, does CCWG consider the number of members in each AC or SO in determining to exercise the community power?

Numbers are about notional voting weights. We are not imposing internal SO/AC quorums on making decisions.

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QUESTION: Is the voting pool always 27 or 25 without SSAC / RSSAC and 20 without GAC?

Yes, if all SO/ACs were participating, there would be 29 votes. It is an opt-in mechanism where SO/ACs can decide to remove themselves or join. The model is open to welcoming new entries. Note that new additions and removals beyond those listed will require a Bylaws change.

QUESTION: Who can take the vote position for each AC/SO? The same as vote member for each AC/SO to vote for ICANN board member?

Each SO or AC can make decision on how voting will be exercised. There are no defined sets of representatives. The CCWG does not create any rules around how SO/ACs need to organize themselves internally.

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QUESTION: What are the proposed reviews for DIDP?

We have heard DIDP-related concerns and will be looking at it as part of Work Stream 2.

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QUESTION: Have the CWG confirmed that you have met the requirements?

There has been no signal that we would not meet requirements. The CWG has set up a dedicated Team to ensure the requirements are met.

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QUESTION: Given the recent findings about the IRP in reference to the .africa domain is there work being done around strengthening and improving the process?

Making it an accessible process was an important priority for the CCWG and we are recommending both substance and process enhancements. We find it is critical to have a standing panel of people familiar with mission, rules and procedures. The proposed standing panel will allow for subject matter expertise and is a critical feature of it. In addition, IRP is currently narrowly focused on violation of Bylaws. We are recommending expanding it to substance. We also suggest panel decisions that have precedential value. As part of Work Stream 2, there will be a work group to develop clear rules for operating procedures/appeals.

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QUESTION: On the IRP slide, it says "reasonable efforts" will be used to populate the panel - how do we ensure that those efforts will be strong enough?

We have spent considerable time on diversity. With the “no more than 2 panellists from each region” principle in mind, we concluded that we would have a minimum of 7 panellists. We foresee that there will be a tender for a provider to help identify qualified panellists from around the globe.

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QUESTION: Given the long term accountability work in place it would be beneficial to have a report that tracks the various IRP failures over the years and the leanings from those failures including what has been done by ICANN over the years to address the gaps.

We are envisioning institutionalized periodic reviews of how the IRP is working and how decisions are being handled.

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QUESTION: Is cost containment (for all parties concerned) one of the goals of improvement?

Cost-containment is an important aspect of IRP. ICANN will be responsible for costs. Filing fees, however, will likely be put in place to deter abusive and frivolous request. The Report provides information on securing pro-bono legal representation for community IRP. Rules that exist now will be put in place to maintain efficiency.

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QUESTION: One IRP issue is the interpretation of poorly drafted rules versus the spirit of the policy behind the rules. Are we allowing “discretion" in the new IRP?

Our goal is to issue easily understood rules for IRP. We will be looking to clarify what is and what is not subject to independent review. The IRP would be a place to reconcile inconsistent or conflicting decisions of expert panels, a place to resolve some difficulties we would have in gTLD process where expert panel has different interpretations and decisions cant be reconciled.

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QUESTION Are there many sole member non-profit corporations in California?

It is not uncommon.

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QUESTION - Do we have any "role models" for CMSM structure - since this model was suggested by external legal counsel?

The details of this are quite specifically developed for the ICANN concept.

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QUESTION: To make the rejection not happen, we need efficient cooperation between staff, Board, community for budget-related matter. This is already in place but let’s make it compulsory to avoid a a situation where the budget get rejected.

We will make sure this addressed as part of Work Stream 2.