Attendees:
Members: Alan Greenberg, Becky Burr, Cheryl Langdon-Orr, James Bladel, Jordan Carter, Jorge Villa, Julie Hammer, Leon Sanchez, Mathieu Weill, Robin Gross, Samantha Eisner, Sebastien Bachollet, Steve DelBianco, Suzanne Radell, Thomas Rickert (15)
Participants: Alissa Cooper, Anne Aikman-Scalese, Avri Doria, Carlos Raul, Chris LaHatte, David Maher, Farzaneh Badii, Greg Shatan, Jon Nevett, Jonathan Zuck, Kavouss Arasteh, Keith Drazek, Matthew Shears, Olivier Crepin-Leblond, Paul Szyndler, Phil Buckingham, Philip Corwin, Rafael Perez Galindo, Steve Metalitz, Tom Dale, Tracy Hackshaw (21)
Board: Asha Hemrajani, Bruce Tonkin, Cherene Chalaby, Chris Disspain, Fadi Chehadé, George Sadowsky, Gonzalo Navarro, Jonne Soininen, Markus Kummer, Mike Silber, Ram Mohan, Rinalia Abdul Rahim, Steven Crocker, Suzanne Woolf, Wolfgang Kleinwachter (15)
Legal Counsel: Holly Gregory, Ingrid Mittermaier, Michael Clark, Nancy McGlamery, Rosemary Fei (5)
Staff: Alain Durand, Alice Jansen, Bernie Turcotte, Berry Cobb, Brenda Brewer, Grace Abuhamad, Hillary Jett, Laena Rahim, Marika Konings, Megan Bishop, Mike Brennan, Theresa Swinehart,
Apologies: Eberhard Lisse
**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: https://icann.adobeconnect.com/p11mnbkm95c/
- The audio recording is available here:
Notes
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
Mission, Core Values, Commitments
- We are aligned on mission, core values, commitments.
Independent Review Panel
Strong agreement that we want to see stronger judicial function. Details need to be ironed out.
---> The proposal does move us into a constitutional model where legislative authority of community and executive authority are balanced with an independent judiciary. The reference to business judgement rule is not directly applicable. We had good reason for departing from that standard. We are proposing a very narrow scope. Conflicting results from IRP panels do seem to be a problem. There is no proposal to change the definition. We have a draft Bylaw that was circulated. The material harm standard is a concern. IRP is meant to be binding to the extent possible by law. The IRP would be limited to say whether action or inaction was consistent with ICANN bylaws. IRP has no say on GAC advice - it only has say on ICANN action/inaction.
Community Mechanism
- Slide 14: a petition needs to come from one SO or one AC. Do you have to be part of membership to be an SO/AC to trigger?
--> We have different thresholds - e.g. Board recall. For Board recall you need 2 SOs or ACs, including one SO. In any triggering processes, it does not matter whether participating or not - it is open to all. Voting, on the other hand, is limited to those who are participating.
- Is membership model really needed for WS1? Is it a bridge between WS1 and WS2? How can the implementation be realized in concrete details? How could this work? How would a new committee be added for instance?
--> For new entries: it would require a Bylaw change. SO/ACs are rooted in Bylaws. The system is flexible to allow for new entries. Impact on relative weight of voting will be reassessed at that time. WS1 is either complete or committed to. We will discuss how the various area are being dealt with and time between now and implementation and will get back to Board
- What is the CCWG’s assessment on whether the inclusion of a voting GAC in the Community Mechanism would be acceptable to the US Government?
---> We are aware of NTIA criteria and are trying to assess our proposal against these criteria. We are aware of discussions taking place in GAC. It is premature to give a definitive answer on this. We do not think it would be crossing a line per se if GAC opted to be part of voting mechanism but this would need to be examined as a whole.
- How would checks and balances on the CMSM be implemented?
---> There are procedural checks and balances. The restricted array of powers, and the usual checks and balances in the SO/AC structure work to limit what the CMSM could do. The other legal rights of a member will be constrained through very high thresholds.
- Why is single member model required to obtain those five community powers?
---> The CMSM is not needed for the community powers per se. It is needed to make the communtiy powers enforceable. Enforceability is the only reason for proposing it. Legal vehicle for enforcing powers would be to have membership model. It could be enforceable in Court of Law if needed.
---
Community Powers
Bud/Strat/Ops
What is the time period foreseen for budget vetoes to take place and how many vetoes can that time period accommodate without paralyzing certain aspects of ICANN’s operation? Let’s assume for this question that using past year’s budget will not suffice for some aspects of ICANN operations.
--> We see it as a reserve power. The paper proposes fitting in 40 days. The intention of the possible disruption of a second veto or a year of abiding by the previous year's Budget is all part of the incentives - on the community through the Board to plan a Budget that people support.
Removal of individual Directors
What is the CCWG assessment/analysis on the potential impact of Board director removal process on the independence of individual directors?
---> Balance between need for Directors to feel sufficiently empowered to conduct work and accountable to the community appointing them. We have struck the following balance: 1) ensure that no removal of Board director process would not take place without discussion in the process; 2) Clarification of understanding of fiduciary duties and expectations i.e. balancing between bringing perspective from community and fiduciary duties. The notion of independence of individual directors will need to be further refined.
WS2/Implementation
- Do you expect details to be filled in by Dublin?
--> Details will be fleshed out. We are identifying principles for WS1 first.
- What will you do if some of the proposal does not have consensus or lacks the shape of community forum?
--> Our understanding is that NTIA is not waiting for a fully implementable solution. Operational detail would be dealt with by CCWG or by implementation team under CCWG supervision.
- What is your feedback on the Jones Day impact analysis?
---> Our external counsel is reviewing Jones Day impact analysis. We will be receiving opinion on paper.
Documents Presented
XPL_CCWG Proposal_Visual Summary_FINAL (1).pdf
Chat Transcript
Brenda Brewer: (8/31/2015 16:29) Welcome to CCWG Briefing to the Board Meeting on 31 August 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
McTim: (16:39) greetings
Stephen Deerhake: (16:40) Hi Brenda. Greetings everyone.
Kavouss Arasteh: (16:44) Hi Dear Brenda and Dear Grace
Kavouss Arasteh: (16:45) Fithful ICANN Staff for CCWG
Bruce Tonkin: (16:48) Good morning all. 1st day of September in Australia.
McTim: (16:50) g'day Bruce!
Steve Crocker: (16:52) Greetings, everyone.
Rinalia Abdul Rahim: (16:53) Hello all.
Cheryl LangdonOrr: (16:55) hi
Holly J. Gregory: (16:55) Greetings from NYC. Last day of August here!
Bernard Turcotte Staff Support: (16:56) hello all
Suzanne Woolf: (16:56) Hello
Mathieu Weill, ccNSO, co-chair: (16:56) Hi all
Cheryl LangdonOrr: (16:56) g'day again Bernie
Becky Burr: (16:57) Hello
Keith Drazek: (16:57) Hello again
Mathieu Weill, ccNSO, co-chair: (16:57) It's 1st day of september her as well Bruce... in 3 minutes
Bernard Turcotte Staff Support: (16:58) please mute if you are not talking
matthew shears: (16:58) Hello
Suzanne Radell (GAC): (16:58) Hi everyone
Holly J. Gregory: (16:58) Sharp recurring noise on the line
Bernard Turcotte Staff Support: (16:59) feedback
nigel hickson: (16:59) good evening
Michael Clark (Sidley): (16:59) Hello all
George Sadowsky: (16:59) good evening
Kavouss Arasteh: (16:59) It is mid night in Geneva
Thomas Rickert, CCWG Co-Chair: (17:00) Hello all!
Kavouss Arasteh: (17:00) Hello Legal Team
Asha Hemrajani: (17:00) Good (very early) morning!
Greg Shatan (IPC/CSG/GNSO): (17:01) Hello, all!
Jordan Carter (.nz, rapporteur): (17:01) hi everyone
George Sadowsky: (17:02) George is here
Chris Disspain: (17:02) Chris is here
Gonzalo Navarro: (17:02) Gonzalo here
Rinalia Abdul Rahim: (17:02) Rinalia is here
David Conrad: (17:02) Hello everyone
David Olive: (17:02) Greetings from Istanbul
Chris Disspain: (17:02) I see Bruce also
Kavouss Arasteh: (17:04) Thomas
Asha Hemrajani: (17:04) Asha is here
Kavouss Arasteh: (17:04) You seems to be far from the mic
Steve Crocker: (17:05) Erika indicated she would be on the call but not speaking and not seeing the slides
Grace Abuhamad: (17:07) Thanks @Steve
Keith Drazek: (17:08) +1 Thomas
Jordan Carter (.nz, rapporteur): (17:12) I heard the font was picked by ICANN staff ;)
Jordan Carter (.nz, rapporteur): (17:16) +1 Thomas - the whole content of this report is a narrow slice of ICANN. The process is very far from a redesign of the organisation or the work that it does.
Carlton Samuels: (17:18) Howdy all
kavouss Arasteh: (17:20) Thomas
kavouss Arasteh: (17:20) Pls allow the Board to raise questions and concerns
kavouss Arasteh: (17:20) Pls make a difference between this session and Webinar.
Leon Sanchez: (17:20) @Kavouss we will let the Board raise ther comments in a moment
kavouss Arasteh: (17:20) We are not on webinar.
kavouss Arasteh: (17:21) Pls allow the Board to talk
Mike Silber: (17:21) Kavous +1
kavouss Arasteh: (17:21) Thoma
kavouss Arasteh: (17:21) Pls read my comment
kavouss Arasteh: (17:21) Kinsdly slow down description
Keith Drazek: (17:21) If a Board member has a question, they can raise their hand or speak up.
kavouss Arasteh: (17:21) They know what we are doing
kavouss Arasteh: (17:22) But there is no need for such explanation fro0m thomas
kavouss Arasteh: (17:23) The chair does not listen to us?
kavouss Arasteh: (17:24) KEITH
kavouss Arasteh: (17:24) pLS LET THOMAS REPLY
Jordan Carter (.nz, rapporteur): (17:24) Kavouss: the call for the Board to raise their position is in 24 hours. This call is for the CCWG's briefing to the Board.
Keith Drazek: (17:24) Fadi said at the beginning that the Board is primaril in "listen mode" during this call. There's another call scheduled for Wednesday for the Board's feedback. There will be a Q&A session today after the brief overview.
Leon Sanchez: (17:25) Indeed Keith
Keith Drazek: (17:25) If anyone has a question, they can raise their hand.
Chris Disspain: (17:25) All, we are hear to listen to yoor presentain and ask clarifying questions
kavouss Arasteh: (17:25) Ibthink the NBoard has full knowledge of these things
wolfgang: (17:27) It is good to get the nuances from the chairs. Questions will be raised later
Leon Sanchez: (17:28) Thanks Wolfgang
Leon Sanchez: (17:28) Thanks Chris
Becky Burr: (17:32) clarification - is the action/inaction of ICANN a violation of ICANN's bylaws or not. full stop. ICANN board decides how to address the violation
Mathieu Weill, ccNSO, co-chair: (17:33) Thanks Becky
Jordan Carter (.nz, rapporteur): (17:38) A lot of these powers have changed between versions to take account of the very helpful comments Board members have made, including at the BA meeting in June and the Paris meeting in July. So thanks for that input.
Philip Corwin: (17:41) IMHO, CCWG has done an outsanding job in assembling this Proposal
Philip Corwin: (17:42) That's "outstanding', of course
Thomas Rickert, CCWG Co-Chair: (17:42) Thanks, Phil! We will share with the whole group!
Philip Corwin: (17:43) Most welcome, Thomas
Mathieu Weill, ccNSO, co-chair: (17:45) Important to stress that these would take place AFTER all usual processes, as an escalation path only. Just managing the exceptions, not the usual way to proceced
wolfgang: (17:46) @Matthieu. Thx. This is an important clarification
Jordan Carter (.nz, rapporteur): (17:47) And the notion is that by knowing accountability processes like these are available if needed, the incentives on everyone to make the general process of multistakeholder consensus building work.
Jordan Carter (.nz, rapporteur): (17:48) that is, the model is designed to support bottom up, multistakeholder policy and decision making. Not to replace it or to supplant it. Thus the limited powers, high thresholds, use of existing SO/AC structures, etc.
Mathieu Weill, ccNSO, co-chair: (17:49) And as Leon is highlighting, the petition thresholds are designed to be already quite significant to mitigate potential abuse
wolfgang: (17:49) @Jordan I understand this as the "Sword of Damocles",
Jordan Carter (.nz, rapporteur): (17:51) the intention is that the sword is no bigger than it is today (with the IANA Functions Contract). :-)
Grace Abuhamad: (17:57) Please raise your hands in the Adobe Connect room so the Chairs can follow a queue of speakers
Rinalia Abdul Rahim: (17:57) Thank you for the presentation. Questions: (1) What is the time period foreseen for budget vetoes to take place and how many vetoes can that time period accommodate without paralyzing certain aspects of ICANN’s operation? Let’s assume for this question that using past year’s budget will not suffice for some aspects of ICANN operations. (2) What is the CCWG assessment/analysis on the potential impact of board director removal process on the independence of individual directors? (3) What is the CCWG’s assessment on whether the inclusion of a voting GAC in the Community Mechanism would be acceptable to the US Government?
Becky Burr: (17:58) some work is ongoing - e.g., the open human rights issue and further work on IRP
Grace Abuhamad: (17:59) The Slides are unsynced so that you can scroll through
kavouss Arasteh: (17:59) And further details on CMSM
kavouss Arasteh: (18:00) What does it mean that the community shapes
Asha Hemrajani: (18:00) I am unable to speak on the microphone so I shall type my questions on the chat window.
kavouss Arasteh: (18:01) What the Board memebr meant by saying " The community shapes"
Jordan Carter (.nz, rapporteur): (18:02) Chris is correct.
Jordan Carter (.nz, rapporteur): (18:02) Two need to petition for recalling the entire ICANN Board.
Becky Burr: (18:02) that just triggers a discussion
Jordan Carter (.nz, rapporteur): (18:02) (of which one must be an SO)
Steve DelBianco [GNSO - CSG]: (18:02) @Kavouss -- Chris asked about the "shape of fhe Community Fourm". The forum is only an "event" where Community Mehanism could gather to discuss whether it wanted to exercise a community power. Might be on a conf call, could be in-person.
Greg Shatan (IPC/CSG/GNSO): (18:04) I think the concept of "membership" is being somewhat misunderstood at this point. There is only one member (the "Sole Member").
Becky Burr: (18:04) correct Greg
kavouss Arasteh: (18:04) Mathieu
kavouss Arasteh: (18:05) The question was in such case the SO or Ac must be already part of member
Holly J. Gregory: (18:05) Correct Greg, and that Sole Member only operates at direction of the participating SOs and ACs upon a vote -- different thresholds apply re voting for different types of issues
Mathieu Weill, ccNSO, co-chair: (18:05) Jordan is addressing this Kavouss right ?
kavouss Arasteh: (18:05) I mean community sole member
Robin Gross [GNSO - NCSG]: (18:05) it would be helpful to have a single page that shows the differences in triggering between the powers.
Becky Burr: (18:05) no need to be voting to kick off discussion
Jordan Carter (.nz, rapporteur): (18:05) And in all of the triggering processes, the SO or AC's status as a participant in the CMSM is not relevant.
Jordan Carter (.nz, rapporteur): (18:06) so an SO or AC can start the petition process regardless of whether they are a voting participant.
Jordan Carter (.nz, rapporteur): (18:06) Rinalia - am working on a quick answer here on Qu1
Rinalia Abdul Rahim: (18:06) OK Jordan.
kavouss Arasteh: (18:06) Is that clear in the proposal or it is your interpretation
kavouss Arasteh: (18:07) Where such assumption is mentioned
Becky Burr: (18:07) Changes to SO/AC structure (e.g., addition) requires Bylaws changes just as is the case now.
Jordan Carter (.nz, rapporteur): (18:08) Rinalia: on 1), the paper proposes fitting in 40 days. The intention of the possible disruption of a second veto or a year of abiding by the previous year's Budget is all part of the incentives I mentioned before - on the community through the Board to plan a Budget that people support.
Keith Drazek: (18:08) There are no barriers to entry for future community structures that are provided for in ICANN's bylaws.
Chris Disspain: (18:08) Have you had a chance yet to read the Jones Day Impact Analysis, are there areas that you would like to provide information to clarify the proposal?
Jordan Carter (.nz, rapporteur): (18:09) See para 385 of the proposal, too, Rinalia.
Becky Burr: (18:09) I have several clarifications on IRP
Mathieu Weill, ccNSO, co-chair: (18:10) @Chris: it is under review by our lawyers
Keith Drazek: (18:10) getting some background noise. not sure if it's on jordan's line or not
Steve DelBianco [GNSO - CSG]: (18:11) If a past budgert were insufficient, that provides precisely the right pressure on the board to correct the problems identified by the community, so that its proposed new budget can be approved
Jonathan Zuck (IPC): (18:11) Exactly @STeve
Chris Disspain: (18:11) Thanks Mathieu...appreciated
Chris Disspain: (18:11) Could you clarify what criteria or factors the CCWG you applied in determining whether an issue is a ws one versus a ws two issue?
Asha Hemrajani: (18:11) QUESTION: How would checks and balances on the CMSM be implemented? Question 2: What has been your feedback so far on the Jones Day impact analysis?
Mathieu Weill, ccNSO, co-chair: (18:12) We should be able to share some inital feedback during next call
Jonathan Zuck (IPC): (18:12) ws1 was ensuring sufficient community leverage to acheive ws2 reform @Chris
kavouss Arasteh: (18:12) We should let the question be clearly raised and not jumpe into the speaker,s intervention
Rinalia Abdul Rahim: (18:12) Thanks, Jordan.
Jordan Carter (.nz, rapporteur): (18:12) Sorry about the noise - peril of an open plan office.
Rosemary Fei (Adler Colvin): (18:15) Extra "not" in the notes
Chris Disspain: (18:15) thanks Jonathan
Fadi Chehadé: (18:16) why is single member model required to obtain those five community powers?
Rinalia Abdul Rahim: (18:17) Thanks, Mathieu.
Leon Sanchez: (18:17) @Asha to your second question, our counsel is reviewing Jones Day impact analysis and we will be able to comment on it once we have the feedback from our lawyers. We have reviewed it ourselves but need that last piece in the puzzle
Holly J. Gregory: (18:17) Chris, we are currently working on our analysis and plan to have a high level preliminary memo tomorrow and a longer set of comments on the chart by the end of the week.
Chris Disspain: (18:17) Did you get any useful feedback from Larry Strickling whne you met with him last week or the week before?
Chris Disspain: (18:18) Thanks Holly :-)
Mathieu Weill, ccNSO, co-chair: (18:18) @Chris : of course we had useful insight from Larry !
Mathieu Weill, ccNSO, co-chair: (18:18) ;-)
Chris Disspain: (18:19) would you care to share it Mathieu?
Asha Hemrajani: (18:19) I can barely hear you Jordan
Thomas Rickert, CCWG Co-Chair: (18:19) Fadi, the CMSM is not needed for the community powers per se. It is needed to make the communtiy powers enforceable. Enforceability is the only reason for proposing it.
Philip Corwin: (18:19) Does the CCWG believe that the Single Member model and a binding IRP are essential elements of an effective accountability proposal?
Fadi Chehadé: (18:20) have you concluded you would not be able to enforce those powers under our current model?
Thomas Rickert, CCWG Co-Chair: (18:20) Phil, the community powers, the revised bylaws and the IRP seem to be the most important points. The CSMS is just the legal vehicle to make the powers enforceable.
Asha Hemrajani: (18:20) Thanks Leon for addressing my question #2
Mathieu Weill, ccNSO, co-chair: (18:21) @Chris: I did not attend the call personally but there was, among other things, a request to document the recommendations more
Jordan Carter (.nz, rapporteur): (18:21) Fadi: only some would be enforceable, and that would require the establishment of individual designators (with legal personality) -- which is the complexity that we heard much concern about in feedback to the first draft proposal.
Keith Drazek: (18:21) The checks and balances are built in to the existing community structures, or would need to be added to the charter of an SO or AC if they don't already exist. The checks and balances are the multi-stakeholder structures themselves, and the requirement that the various groups cooperate to use the powers.
Asha Hemrajani: (18:21) Re question #1, I could barely hear Jordan, there was page turning noise on the line.
Asha Hemrajani: (18:21) We could discuss again in 2 days
Chris Disspain: (18:21) Apoligies Mathieu...I guess it's for Thomas and Leon to comment...
Thomas Rickert, CCWG Co-Chair: (18:21) Fadi, yes that was the conclusion of our group.
kavouss Arasteh: (18:22) Reply to Fadi would be, without Sole Member which has the standing mwe can not exercise the community powers under the current structure
Holly J. Gregory: (18:22) Quick reaction -- Jones Dayanalysis provides assurance regarding the Second Proposal in two key respects: (1) The analysis does not identify any legal flaws or legal “workability” issues with respect to the viability of the community mechanism as sole member, the community powers, accountability and review mechanisms, or other key elements of the Second Proposal. (2) The analysis does not identify any significant issues that the CCWG, its working groups and/or its advisors have not already considered
Jordan Carter (.nz, rapporteur): (18:22) Asha: I was asking if there were specific checks and balances you either wanted to see, or situations you wanted to see headed off by such checks nad balances.
Philip Corwin: (18:23) Thx Thomas
Chris Disspain: (18:23) All, this has been really useful...thank you so much for organising it!
Fadi Chehadé: (18:23) thank you Thomas and Léon for your responses
kavouss Arasteh: (18:23) In other words without Sole Mmember, these powers can not be exercised
Becky Burr: (18:24) with one exception
Keith Drazek: (18:25) I think it's important to highlight (or restate) that the Sole Member model is the result of community feedback and compromise. Designator model was deemed insufficient and full membership too onerus or risky. The Sole Member model is the CCWG's compromise position/recommendation based on all feedback received.
Leon Sanchez: (18:25) Thank you, Fadi and all who have enriched this session with your questions and comments. Very fruitful session
matthew shears: (18:25) + 1 Keith
Steve Crocker: (18:27) Time check: 3 minutes left.
kavouss Arasteh: (18:27) Keith, it is not a compromise but the only workable method
Keith Drazek: (18:28) @Kavouss: Perhaps both.
Steve Crocker: (18:30) time for us to wrap up. Becky is giving us second wind :)
Jonathan Zuck (IPC): (18:30) +1 keith
Fadi Chehadé: (18:31) such as the board accepting GAC advice?
Becky Burr: (18:31) Fadi - the board must implement GAC advice in a way that complies with the Bylaws, but the IRP has nothing to say about the content of GAC Advice
Jordan Carter (.nz, rapporteur): (18:32) speak Thursday!
Rinalia Abdul Rahim: (18:32) Thank you CCWG.
Bernard Turcotte Staff Support: (18:32) bye all
James Bladel: (18:32) Thanks, all.
matthew shears: (18:32) good call
Jonathan Zuck (IPC): (18:32) thnkA
nigel hickson: (18:32) thank you; really useful
Anne Aikman-Scalese - IPC Member: (18:32) Thank you.
Theresa Swinehart: (18:32) thank you all
David Olive: (18:32) Thanks you ALL
Asha Hemrajani: (18:32) Thanks Jordan, speak on Thursday
Asha Hemrajani: (18:32) Thanks all
Markus Kummer: (18:32) Bye and thanks!
Mathieu Weill, ccNSO, co-chair: (18:32) Thank you all, talk to you soon !
Keith Drazek: (18:32) Good call. Thanks all.
