Members: Alan Greenberg, Alice Munyua, Athina Fragkouli, Becky Burr, Bruce Tonkin, Cheryl Langdon-Orr, Eberhard Lisse, Fiona Asonga, James Bladel, Jordan Carter, Julia Wolman, Lee Bygrave, Leon Sanchez, Mathieu Weill, Olga Cavalli, Par Brumark, Robin Gross, Roelof Meijer, Samantha Eisner, Sebastien Bachollet, Steve DelBianco, Thomas Rickert, Tijani Ben Jemaa (23)
Participants: Alain Bidron, Andrew Harris, Anne Aikman-Scalese, Asha Hemrajani, Avri Doria, Cherine Chalaby, Chris LaHatte, Christopher Wilkinson, David McAuley, Desiree Miloshevic, Erika Mann, Finn Petersen, George Sadowsky, Gonzalo Navarro, Greg Shatan, Guru Acharya, James Gannon, Jan Scholte, Jeff Neuman, Jonathan Zuck, Jorge Cancio, Jyoti Panday, Kavouss Arasteh, Keith Drazek, Ken Salaets, Lori Schulman, Malcolm Hutty, Mark Carvell, Markus Kummer, Martin Boyle, Mary Uduma, Matthew Shears, Maura Gambassi, Megan Richards, Melanie Penagos, Mike Chartier, Milton Mueller, Nan Chu, Nathalie Coupet, Olivier Crepin-LeBlond, Paul Rosenzweig, Paul Szyndler, Pedro Ivo Silva, Rinalia Abdul Rahim, Rishabh Dara, Ron Da Silva, Rory Conaty, Sabine Meyer, Seun Ojedeji, Sivasubmanian Muthusamy, Stephen Deerhake, Steve Crocker, Suzanne Radell, Suzanne Woolf, Thomas Schneider, Tom Dale, Tony Holmes, Tracy Hackshaw, Wolf-Ulrich Knoben, Wolfgang Kleinwaechter (60)
Legal Counsel: Edward McNicholas, Holly Gregory, Rosemary Fei, Steven Chiodini,
Guests: Adrian Carballo, Albert Daniels, Alan Barrett, Andrea Beccalli, Annaliese Williams, Arvin, Ashley Roberts, Byron Holland, Caroline Greer, Cheryl Miller, Crescent, Demi Getschoko, Diego Canabarro, Duncan Burns, Emily Pimentel, Fiona Alexander, Gangesh Varma, Greg Wood, Jan Scholte, Jim Prendergast, Jonathan Robinson, Karen Mulberry, Kate Wallace, Kelvin Wong, Kevin Espinola, Kevin Murphy, Konstantinos Komaitis, Lise Fuhr, Liz Wang, Lousewies, Luca Urech, Maciej Tomaszewski, Manal Ismail, Mark McFadden, Marzoug, Mike Silber, Milton Mueller, Nick Shorey, Niels ten Oever, Nicola, Nigel Hickson, Pitinan Kooarmornpatana, Robin Spiteri, Ryan Carroll, Sally Wentworth, Sam Dickinson, Shawn W, Shin Yamasaki, Stephane Van Gelder, Theo Geurts, Xavier Calvez
Staff: Alice Jansen, Bernie Turcotte, Berry Cobb, Brenda Brewer, Grace Abuhamad, Hillary Jett, Laena Rahim, Trang Nguyen, Yuko Green,
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p35u9wrinb3/
Welcome, Roll call, Administration (08:30 – 8:45)
Decision Making Mechanisms (08:45-09:50)
Implementation Model Discussions (09:50-10:55)
Community Power: Individual Board Director Removal (10:55-12:00)
Lunch Break (12:00-13:00)
Community Power: Reconsider/Reject Budget (13:00-14:05)
Bylaw Changes Recommended After Stress Tests (14:05-14:20)
Human Rights Bylaw Article (14:20-14:35)
Community Power: Recall of Entire ICANN Board (14:35-14:50)
Items for Consideration in WS2 (14:50-15:05)
Refine wording of Mission & Core Values based on public comment feedback (15:20-15:35)
IRP Enhancements (15:35-15:50)
Community Forum (15:50-16:05)
Community Power: Reject Standard Bylaw Changes (1605-16:20)
Community Power: Approve Fundamental Bylaw Changes (16:20-16:35)
Stress Tests 29 & 30 (16:35-16:50)
SO/AC Accountability (17:10-17:25)
Implementation Plan & Timing (17:25-17:40)
“Fundamental Bylaws” (17:40-17:55)
AoC into the Bylaws (17:55-18:10)
Closing Remarks (18:10-18:30)
- We have reached a turning point.
- There are a lot of common grounds and areas to refine.
- We base our work on public comment. We have support on very substantial enhancements/proposals and it is an achievement we need to build on.
- A fact-based approach is key to process
- Too many options are being considered in proposal to finalize key aspects.
- There are a number of dependencies.
- We cannot provide refinements until we have set basic principles of process.
- We cannot clarify process until we have defined basic rules.
- We will focus on contentious issues and clarify way forward.
- We will use public comments as basis of our investigation to flesh out aspects.
- This is not the time to come up with new concepts that everyone needs to adjust to. We need to build on what we have. Our work products have undergone an evolution. We need to take our ideas but to the next level.
- There is a linkage between what doing here and what we deliver. The more familiar our community is the better.
- We are going to strengthen engagement phase. The better that works the less risk we need to go to escalation phase. We need to fulfill key features – come up with concept that avoids capture, concentration of power, and are inclusive.
- Consensus policy development process, which exists in environment of continuous improvement;
- Codification of Board resolution – justification for decision made;
- Community objection process;
- Arbitration or enforcement of accountability timeline.
- Mechanism for community to reach consensus and make presentation back to Board.
- Individual objects to decision made by Board and goes to SO/AC that best represents them to convience them that should object.
- SO/AC forms own consensus;
- If sufficient interest, we go to broader community engagement to decide whether or not to proceed to community objection (minimum of two SO/ACs needed);
- Community forum where all voices are heard to determine whether there’s broad consensus around objection;
- Community council to sit and decide whether to move forward that objection based on input of community forum using consensus process with option to vote.
- If Board disagrees, we reach enforcement phase where model comes into play.
On decision-making: look at who’s against community consensus. There would be a need to define levels of opposition or veto from different groups inside ICANN arena.
Request to confirm consensus approach instead of voting. As part of three phases: petition, discussion, decision. Note: this process would only apply to community powers.
- Define consensus: it is results as well as process. Consensus is a required level of support. Consensus must be a representative large majority of community – i.e. a positive support. Fractions of community can capture process.
- Recommend written explanation from anyone opposing with opportunity for others to respond. Consider minority report as replacing split voting.
- It is not intended for this process to define how individual SO/ACs make decisions. We are discussing level of support or objection that would enable to reach conclusion that there is a community veto or community positive decision. We need to define what consensus is in context of community council.
- Consider adding a dialogue with the Board step. Define best way to have conversation between Board and community.
- Would the separation review apply to this?
- Do not have conversation in silos. It must be at level of community forum globally.
- Wit respect to advisory committees, add “advised to the contrary”.
CONCLUSION: We have addressed voting concerns using alternatives. We must not only look at level of objection but need to make sure there is support in the first place.
Community Mechanism as Sole Member
There is support for community decision-making leading to enforcement of community powers but also support for restraint. The model we proposed meets the CWG-stewardship requirements but we have received comments from stakeholders that membership model creates concerns (statutory powers, changes in ICANN governance structure). Community pushed back on what we proposed.
A sole designator approach could be an answer. Key ability to enforce removal of Board members and to prevent changes to Bylaws represent a considerable improvement in ICANN accountability. We need a legal vehicle that delivers on requirements, a stick to replace NTIA backstop.
- We need to discuss where this takes us on the enforcement spectrum.
- Concerns that single designator does not give separation capability. Eliminating Board is not a director solution to enforceability of separability decision. It is a fundamental problem to backing down the single designator.
- Decision by Board not to act or to refuse to act could be subject to IRP challenge. If Board refuses will of community, we would move to indirect enforcement mechanism which would be a community consideration of whether to recall the Board.
- Confusion around whether the separability question goes to escalation process or directly to IPR.
- Legal advice: Going to IRP should be after opportunity for escalation process including reconsideration. At end of escalation steps, you would to recall. In member model, separation power would a Member’s reserved power under California Law.
- It is legitimate that if community wants to IANA function to be separated form ICANN and Board refuses to implement the decision, the Board should be recalled. Taking the Board to court instead to execute separation is unhelpful.
- Separation does not require divestiture of subsidiary. There are many mechanisms to effect separation other than divestiture.
- No separation of IANA could be taken without Board’s formal approval. The Board has fiduciary duty.
- Legal advice: The Board could make this decision within its fiduciary duties.
- Principle with single designator model is that all powers are consensus decisions. Removing individual director is a power.
- There is a combination of Bylaws mechanisms in the way consensus policies are enforced through current gTLD registrar agreements. The registrar/registry abides by consensus policy through contract. We may want to use similar combination for IANA function. If Board does not follow it leads to dispute process. If dispute process not followed, it could go to removal of Board directors for enforcement.
- Memo on default judgments calls into question whether a default judgment by an arbitration panel could be effectively enforced against ICANN. In cases of single member, remedy for ICANN refusing to enter into IRP process is that single member has the power through a derivative action to obtain a court order to require ICANN to enter into the IRP. That is unavailable in single designator model.
- Is the designator model more feeble in terms of clarity around enforceability?
- Can we put limitations on Board’s fiduciary duty under designator model?
- Decentralization of power is a key factor for ICANN. In WSIS, we discussed four models for ICANN oversight. There was agreement that we enhance existing mechanism.
- We are not creating an oversight body that would micro manage the Board.
- Legal advice: On default judgement, memo was provided in context of concerns about what would happen if Board did not want to participate in an IRP in binding arbitration.
- Legal advice: There is a larger body of law involving membership rights and statute give members standing. Designators are not given standing but Bylaws are consistently treated as contract for certain purposes including ability to enforce rights that you are given in the Bylaws. Designator should be able to enforce their rights.
- Legal advice: It is not possible to constrain fiduciary duty.
- We should not switch to this new model but use our reference model and work through concerns. To start with new baseline prejudices the discussions.
- We are not married to a model. Requirements are a priority.
- Disagree with statement that membership would be destabilizing ICANN.
- Achieving requirements and simplicity is important.
- Be consistent with terminology: “single designator”.
- Be mindful of timeline and ICG process being put on hold. We should be concentrating on powers that need to be implemented instead of mode;
ACTION ITEM – Visualize separation process
CONCLUSION – Let’s take single designator model as basis for deliberations and see how it can be operationalized and if it can deliver on our requirements. Hold discussion on issue of IRP, separability and decision-making on single designator.
Removal of Individual Board Directors
Documenting rationale including criteria for removal are key comments.
- Consider a level at which removal of individual directors is tantamount to removal of whole Board.
- No more than three a year could be an option.
- Risk is that we may reach a point that paralizes Board action. Community should be aware of sequential removal of Board.
- It will to concentration of power within one SO/AC that would have detrimental effect on Board behavior. Risks of dysfunction Board. NomCom appointees will have more freedom to act in public interest. The Board will become a representation Board.
- Consider proposal to add seven for one sign year instead of five.
- Board director should be removed by SO/AC as Director is selected according to its expertise.
- Consider nuance single designator model generates.
- We could require petition to come from another SO/AC but decision is reserved for appointing body.
- Using escalation process would be a fair and balanced accountability.
- There is a risk that we communicate unwillingly that Board members are responsible to their constituency only, not community.
CONCLUSION – Subteam to look at question of who can petition whether there should be deliberation phase and in what shape/form including NomCom appointees.
Power to reject Budget & Strategic/Operating plan
Concerns include endless loop but there is a maximum of two vetoes in the second draft proposal and escalation thresholds and SO/ACs ganging up against one of them.
There is consensus around the point that there need better engagement in budget process up front.
Suggestions include: line-item veto and limited round trips (10% increase from previous year, escalating to alternative accountability measures or individual initiatives that fall outside of mission?)
Some have expressed that GNSO should have strong position in this process. There is a concern that straight majority rule might lead to a group being discriminated against process. Create casual boundaries around objection: cause for a community objection of an annual budget i.e. certain types of budget items to which community can object on basis that outside five-year plan or core mission.
Concerns that risk of deadlock if veto at annual level. There is a proposal to separate the two.
There is a discussion around making sure that PTI/IANA are separate. Discussion is needed about what process might looks like for separate PTI budget allocation process. We have to deal with indirect impact.
We should not restrict community veto of annual budget to a set of criteria.
- Budget veto should not interfere with the IANA functions budget. Community mechanism involves SO/ACs which includes names and numbers, but not protocol community.
- Agreement that upfront process needs to be re-enforced. Refinements in cost correction need to be assessed. One-year budget/operating plan need to be assessed. More clarity on how to constrain process in terms of timing is needed.
- Consider cost of investment cycles in IANA type of technologies.
- With respect to 10% constraint, consider fiduciary duties.
- If you freeze budget from previous, it would be temporary situation – the Board would be incented to make a correction.
- Freezing budget would hurt community. Find a mechanism that would stop organization undertaking discretionary activities.
- CWG-stewardship designed Team requested comprehensive costs should be transparent. ICANN's operating plans and budget should include itemization of all IANA operations. Givng power to reduce or augment budget wasn’t a necessary condition to meet the design team's requirements
- Formalize community and ICANN interaction on budget to avoid possibility of veto. Community forum will have key role for this power. Spilling the Board is our requirement.
- We need to codify practices of interaction and engagement. Budget veto is not equivalent to spilling the Board (the big stick).
- We need to identify a need for the one-year budget and operational plan’s veto that is based on new initiatives coming up that were not in five-year plan.
- It is useless to have veto legally enforceable. If Board doesn’t respect that clause in the Bylaw, I’s useless to take the Board to court, get the clause in the Bylaws enforce and keep them.
- We can design essential services and non-essential services.
- Enshrine engagement as part of Work Stream 1.
CONCLUSION: Initial requirement: avoid initiatives going mission creep and putting overall financial stability of organization in jeopardy. We also have the CWG-induced requirement of ability to veto a PTI/IANA budget. There is a requirement for process to guarantee short-term financial stability and operational stability of ICANN. Concrete proposals are needed for engagement phase. Budget and strategic planning is engagement phase.
We can move on the five-year strategic and budget veto power based on consensus.
We need to revisit how process for short-term initiatives of ICANN through one-year operating plan and budget could be illustrated.
Stress Test 18
Stress Test 18 talks about the notion that we need a bylaws change to clarify that ICANN board's obligation to try and find a mutually acceptable solution, when it doesn't want to follow GAC advice, that that obligation should only accompany GAC advice that was developed through consensus.
1 objection to removing freedom of expression example. Proposal to retain the bylaws change that the CCWG has significant majority consensus to support.
CONCLUSION: We are awaiting feedback from the GAC.
Comments indicated that human rights should be addressed as a matter of work stream 2, including a Bylaw should not broaden ICANN’s mission. There is a need for refining proposed language for bylaws. We need to discuss whether human rights is already reflected in article 4 of articles of incorporation. There was a suggestion that we should use verbatim text of already-agreed language. We should consider acting with other group coordinating human rights.
- Take the most complete or most simplest.
- Explain how it is different from article 4.
- Article 4 does not completely embrace the concept of respecting internationally recognized human rights.
- Proposal gives room to interpretation. Names and numbers is our mission.
- We received a memo that indicated that no applicable human rights to corporation. Human rights are bound on states. There is no self-imposed obligation to respect human rights. That is one of the things we lose with loss of NTIA.
- You need to be as less prescriptive as possible when citing human rights sources. Would like more certainty around scope of mission and operations part of language.
- Preference not to include language. We are referring to a range of righs that are not well understood. Inclusion of this language would tend to make ICANN a place where people come to vindicate rights as they interpret them. It would politicize ICANN in an unhelpful way. Inclusion of this language might weaken core values.
- Understand implications first.
CONCLUSION: Refining point #1.
Recalling ICANN Board
Concerns include 1) need for detailed standards for selection of interim Board. We will use same standards for interim Board as set out in Bylaws for ICANN Board other than geographic diversity; 2) Clarify consequences for failing to meet process requirements i.e. what happens if we don’t meet deadlines? It might lead to instability and/or capture. 120-day period for selection replacement Board will be made a target. If do not satisfy it, the process ends unsuccessfully; 3) Failure to identify nominating or designating parties. Cannot prescribe a process as it happens at SO/AC level.; 4) Make total recall of Board not easy. Need to refine it to make it clearer; 5) Need for minimum standards for Board removal. Let’s consider this ; 6) Higher threshold for Board recall.
- Suggestion of higher threshold for Board recall is no longer applicable since we are having consensus decision-making.
- Consensus should be a positive assent, not a no-objection standard.
- Make it clear that there is some level of waiver that the bodies, the groups that are kicking out board members are not going to be liable for defamation suits or something like that by the people removed.
Add clarification about waiver. Favor rationale over criteria.
Work Stream 2
Comments showed confusion between work stream 1 and 2 scopes. Transparency issues whistleblower policy, and transparency of ICANN and governments interaction could be addressed in separate review cycle. Audit and certification requirements for IT systems, and enhancements of ombudsman role, human rights and jurisdiction could be flagged as potential WS 2 items.
- Transparency, whistleblower policy and human rights should be Work Stream 2.
à Transparency, whistleblower policy and transparency about ICANN interactions with government will be made WS2.
- Rules around IRP should be Work Stream 2.
à Work Stream 1 implementation.
- What is purpose of reviewing enhancements of interactions with governments?
à It will be removed.
CONCLUSION: Green on scorecard. Transparency, whistleblower policy, human rights (as appropriate) and jurisdiction will be Work Stream 2.
Mission, Core Values & Commitments
Concerns include limitation on ICANN’s regulation or its attempt to regulate services could be interpreted in a way that precludes ICANN from enforcing either consensus policies or voluntary commitments. It will be important to expressly clarify that ICANN can and should enforce both consensus policy and voluntary commitments. Suggested approach: ask council to clarify we do not mean to prohibit and ICANN should enforce voluntary commitments that registries make and consensus policies as those are adopted in this. We have had two wording changes from second draft report: ICANN shall not engage in or use its powers to regulate services that use the Internet's unique identifiers or the content that such services carry or provide. We should ask the lawyers to clarify that this prohibition, while important, is not intended to in any way interfere with ICANN's ability to enforce its contracts and consensus policy
- BC and NCSG filed a reconsideration request on question of whether the new contracts presented or renewal of legacy gTLDs were laid on table and wre signed by those parties to get their renewal, They contained URS that didn’t come from bottom-up process. The reconsideration request under today’s bylaws is whether or not that was appropriate.
à The UDRP is within picked fence consensus policy as defined by specification1. It’s a question if these are just demands that have not been formalized consensus policy.
- What does it mean that ICANN shall have no power other than acting in accordance to its mission? Too many qualifiers are weakening the objective. Request for redrafting.
- The gTLD process committee has invented rules as we've gone along. The PIC was not the result of consensus policy directly. Let’s not create a big loophole.
- Consensus policy can only be consensus policy for the things that are within ICANN's mission. What is not within ICANN's mission, according to this text, is attempting to use those powers to attempt to regulate the services that use unique identifiers -- the DNS, for example – or the content that those services carry. We need to understand what principle it is that we are agreeing to.
- What is regulation? We need to distinguish content we are talking about and services.
à Consensus policies is a well-defined term and it is not particularly narrow. If it’s within ICANN’s mission and consensus policies are by definition witin ICANN’s mission then it’s okay. The registration of domain names at the second level is specifically called out in specification 1 as permitted. ICANN has to stay within its mission. Consensus policies is a way of defining ICANN’s mission.
- Exclusion of consensus policy is a step in the right direction.
CONCLUSION – Subteam to refine language based on conversation. Concerns to be voiced offline in email to Becky Burr or by joining subteam discussion.
On commitment #2, language includes a reference to ICANN employing open, transparent, and bottom-up multistakeholder policy development processes led by the private sector including business stakeholders, civil society, the technical community, academia. Several commenters suggested that we specifically include end users in the list of the private sector. At the same time, this language says the policy development process at ICANN is led by the private sector. The current bylaws -- that language "private sector leadership" occurs in a number of places. It occurs in the white paper. It is implicit in other places in the bylaws. But that language itself was not in the original bylaws in this section. It is a point of contention, particularly for the government participants who believe that references to the private sector are outdated, that we are living in a multistakeholder world so that the reference to private sector leadership is implicit in other places. It doesn't exist in the current bylaws language. So that becomes an issue here.
- “Private sector” is outdated. Use concepts that have wider acceptance by the international community. Academia is not private sector.
- Satisfied with suggested language for private sector.
- Refer to multistakeholder bottom-up approach – no “private sector”, no “civil society” needed.
- We have a clear definition of multistakeholder participation and who stakeholders are in the Tunis agenda. We should be inspired by these UN processes to be consistent with this language.
- Use definition of multistakeholder that was agreed in the World Summit of Information Society and in NETmundial. Academia is not private sector.
- Given the NTIA's clear requirements, saying that ICANN is no longer in private sector could be interpreted in a way that easily could impede or derail the transition. Adopting Tunis agenda or WSIS definition is something that deserves substantial discussions.
On core value #7, we have expanded the meaning of "private sector" to ensure that it is clear that it is not just business stakeholders. This language is quite contentious largely in two ways. The government participants in work party 2 have said very clearly and very repeatedly that we live in a multistakeholder world. The notion of private sector leadership is outdated. We do not have consensus in our discussions. It is another issues that we are going to need to talk about.
In this draft we took the language that ICANN did not have to engage in a large back and forth with the Governmental Advisory Committee if the Governmental Advisory Committee was advising ICANN to do something that was inconsistent with the bylaws out. Instead we recommended an obligation to engage constructively with the GAC regarding their advice and to try to find a mutually acceptable position.
In addition to that, we said, one, advisory committees should provide a rationale for their advice including reference to international and local laws where relevant. That was an implementation of ATRT2's recommendation. It is not specific to the GAC. It does not in any way undermine ICANN's obligation to engage constructively with the GAC over its advice. We also clarified that ICANN must engage constructively with the GAC on all of its advice. ICANN has an obligation to implement any advice it receives and decides to implement in a way that is consistent with the bylaws. Just because the GAC advised ICANN to do something, that doesn't mean ICANN can violate its bylaws. It means ICANN must implement GAC advice in a way that is consistent with the bylaws.A lot of people in the comments really objected to taking the language we had in the core values that required ICANN to engage in the interaction only where the advice was consistent with the bylaws out.
- On commitment #5, we should reflect what is current practice within ICANN i.e. governments are part of the bottom-up public development process of policies. It should be stated in commitment #5 very clearly without making distinctions. Addition of "consistent with the bylaws" was changed in comparison with what is on the bylaws nowadays. It was clear that there was no consensus on that change. So I think we shouldn't go back to that discussion.
- Concerns about removal of language from commitment #7.
- Given the idea that seemed to be floating around certain quarters that GAC could offer advice on anything it wants and that would be duly taken into account, we want it to be extremely clear that there is a limit. You cannot ask ICANN to implement or take advice that is contradicting its basic commitments and core values and mission. Keep that language in.
Independent Review Process (IRP)
Supportive comments received on IRP. There were issues about funding costs, accessibility and independence. WP2 has discussed a potential way forward of saying that ICANN would bear costs of community IRPs. There is a potential issue of whether it is an arbitration to enforce community powers or whether it’s an IRP involving a community-supported concern that ICANN has acted in violation of its Bylaws, that ICANN would fund those as well, but for a variety of different reasons where the dispute is more -- is sort of the more traditionally commercially based dispute, that the costs would be allocated as they currently are, which is borne by the parties, with the panel having the ability to assign the costs for the arbitrators to one or the other. There was a concern about standing that we need to drill down. The second draft proposal contemplates that the IRP would be available to resolve inconsistent decisions of expert panels. That is something that the board comments did not support, and the view of the board was that those should be handled by the policy development process that leads to whatever those processes are that create the expert panels. Do we want to have a panel of last resort, in the event that a policy development process fails, to think of all of the ways in which you might get weird decisions, and rather than make it up on the fly, do we want to have a sort of more institutionalized body to resolve those conflicts? Vast majority of the comments supported a de novo approach.
Agreement to remove abuse of discretion and permissive approach versus abuse prevention and to consider 2013 standard in terms of timing.
- Consider how best to organize work on refining and implementing the IRP, taking into account that is one of the recommendations that has the longest lead time.
- We need to define IRP model very clearly before transition.
CONCLUSION: Lawyers to work on rules of procedures and operations.
There is broad support for community forum that’s open to participation beyond ICANN community. Refinement is needed.
Conclusion: Refinement needed on community forum.
Standard bylaw change & fundamental bylaw change
Suggestion to revise paragraph 938 to "ICANN's enforcement of registry and registrar contact terms might be blocked by an IRP ruling citing amended mission and core values."
- Avoid situation where ICANN becomes content regulator.
With more power comes more responsibility. There is consensus for SO/AC accountability to be further developed as part of Work Stream 2. We should consider whether SO/ACs are subject to IRP. There are concerns around adding SO/AC accountability to structural reviews.
- We need to find bottom line on SO/AC accountability.
- The structural reviews would involve a two-part process that goes in parallel where you would have the specific parts of the community undergoing the review, performing their own self-assessment at the same time the independent examiner is doing the same thing. If proceed with structural reviews as mechanism for doing SO/Ac accountability review, you would have to wait for entire cycle of organizational review to finish.
- It ties to stress test 33.
CONCLUSION: We will address SO/AC accountability as part of Work Stream 2 and explanations to be added to Work Stream 1 i.e. adding to the structural review system the fact that the review is also about accountability of the SO and AC and making it clearer that this accountability is to the current members but also to the communities that these bodies are designed to represent.
ACTION ITEM – Visualize separation process
- CCWG_Scorecard (002).pptx
- Dublin opening TR.pptx
- required community powers_CCWG_16 Oct.pdf
- Blank table of required powers and enforcement options.pdf
- Stress Tests - analysis of PC2 v3 (1).pdf
- working mission commitment corevalues for dublin Proposed Changes to CURRENT Mission Commitment & Core Values.pdf
- IRP Major Issues 5 October 2015.pptx
- CCWG-2ndDraft-FINAL-3August (1).pdf (page 112)
- SOAC accountability PC2 (1).pdf
- Dublin breakout on Community Decision v2.pdf
>> Brenda Brewer2: (10/1/2015 07:16) Hllo, my name is Brenda and I will
>>be monitoring this chat roo. In this ole, I am the voice for the remote
>>participants, ensuring tht they ae heard equally with those who are
>>³n-room² participants. When submitting a questio that you want me to
>>read out loud on the mic, please provide your name and affiliationif you
>>have one, start you sentence with <QUESTION> and end it with <QUESTION>.
>>When submitting comment that you want me to read out loud of the mc,
>>once again provid your name and affiliation if you have one then start
>>your sentene with a <COMMENT> and end it with <OMMENT>. Text outside
>>these quotes will be consiered as part of ³chat and will not be read
>>out loud on the mic.Any questins or comments provided outside of the
>>sssion time will not be read aoud.All chat sessions are being archived
>>and follow the ICANN Expected Standardsof Behavior:
>> Alice Jansen 2: 7:40) We ave not started yet - thank for your
>> Josh: (07:42) For direct access to the scribing text:
>> Brenda Brewer2: (07:43) see new email with updated Adobe link
>> Cheryl Langdon-Orr - ALAC PRegiona Member: (07:45) morning all :-)
>> Sabine Meyer (GAC - Germany): (07:45) Hell everyone!
>> Robin Gross [GNSO - NCSG]: (07:45) Good morning, Dublin!
> Jordan Carter (.nz, WP1 Rapporteur): (07:45) ia ora ano
>> Kavouss.arasteh: (07:49) Dear Faithful and determined CCWHG colleagues.
>> Kavouss.arasteh: (07:49) Dear Devoted and tirelss Co Chairs
>> Kavouss.arasteh: (07:49) Dear IICANN ALSO DEVOITED STAFF
>> Kavoussarasteh: (07:50) Good morning to all
>> Kavouss.arasteh: (07:52) MATHIEU,
>> Kavouss.araste: (07:52) For me the most important and top criteria is
>>discussio on the Community Mechanism and its associated empowerment
>> Robin Gross [GNSO - NCSG]:(07:53) Is there a handy link to the "score
>>card" under discussion?
> Bruce Tonkin: (07:54) Good morning Kavouss
>> Gangesh Varma: (07:54)
>>kGo1EXNQs/edit#gid=1327274628 - score card.
>> Robi Gross [GNSO - NCSG]: (07:55) Thank you!
>> Hillary Jett: (07:56) @Robi, the scorecard is also located in he
>>Chairs Statement and is downloadable in PDF from there as well:
>> Robin Gross [GNSO - NCSG]: (07:57) Thanks, Hillary.
> Kavouss.arasteh: (08:01) We ,or at least overwhelming super majority of
>>us are determined to to continue to use what we have built .l
>> Hillary Jett: (08:03) The document Jordan is running through is from
>>the Reading List and can also be found here:
>> Hillary Jett: (08:03) *Oops! Updated link:
>> Suzanne Woolf: (08:05) URL for the document Jordan is discussing?
>> Gangesh Varma: (08:06) Thank you Hillary
>> Alice Jansen 2: (08:06)
>>=v2 - p25
>> Suzanne Woolf: (08:06) thx
>> Jordan Carter (.nz, WP1 Rapporteur): (08:15) it's a Mac meltdown
>> Hillary Jett: (08:16) @All thank you for your patience while we fix
>>this technical problem
>> Cheryl Langdon-Orr - ALAC APRegional Member: (08:18) gremlins? we
>>hould have Leprachauns rather than gremlin surely ;-)
>> Theo Geurts: (08:18) :)
>> Mathieu Weill, ccNSO, co-chair: (08:18) Cheryl, I will report you to
>>Michele for mentioning Leprechauns 1st
>> Jordan Carter (.nz, WP1 Rapporteur): (08:20) it's in the room, but not
>>on the screen in the physical room
>> James Bladel: (08:21) Q: If it requires 2 SO/ACs to continue the
>>process beyond a Community Forum, could a different 2 SO/ACs object to
>>"kill" the process? It seems that this would indicate a dividied
>>community position, and we should get off the track as early as
>> Keith Drazek: (08:22) Thanks to Jonathan for this very helpful review
>>of the Los Angeles breakout sessions, which were themselves constructive.
>> Kavouss.arasteh: (08:23) Are we modifying the three steps that we have
>> Kavouss.arasteh: (08:23) Peition, Forum and Decision, if yes why
>> Bruce Tonkin: (08:24) Yes - good to set out clearly the process for
>>building up to a formal community objection.
>> Martin Boyle, Nominet: (08:24) @James: that's a useful point. Save a
>>lot of inter-community division
>> Mathieu Weill, ccNSO, co-chair: (08:24) No Kavouss, that is a different
>>way to see the same process (with more details)
>> Kavouss.arasteh: (08:24) Or it is a expansion of those three steps ?
>> Bruce Tonkin: (08:24) Note that a next step coud be for the community
>>then formally meet wit the Board in some form to resolve prior to kicking
>>off an IRP armed with lawyers on both sides.
>> James Bladel: (08:24) @Martin - exactly, we don't want this process to
>>be driven by a "vocal minority" if the ultimate outcome is that it won't
>>have community consensus.
>> Bruce Tonkin: (08:25) ie similar to the process at the moment for the
>>Baord to meet with the GAC to attempt to resolve a difference.
>> Cheryl Langdon-Orr - ALAC APRegional Member: (08:25) I agree Bruce....
>> Keith Drazek: (08:26) +1 James and +1 Bruce
>> Martin Boyle, Nominet: (08:26) @James: or entrench mutually opposing
>> Kavouss.arasteh: (08:27) I have difficulties to refer to VOT
>> Kavouss.arasteh: (08:28) inconsistency between the titiole " Consensus
>> Cheryl Langdon-Orr - ALAC APRegional Member: (08:28) we note that
>> Robin Gross [GNSO - NCSG]: (08:29) what about the argument that a GNSO
>>or other policy decision violates the bylaws or misssion of ICANN?
>>Wouldn't the powers then be triggered?
>> Bruce Tonkin: (08:30) Hopefully there is a wireless mike in the room.
>> Mathieu Weill, ccNSO, co-chair: (08:30) @Robin: that would be a subject
>>matter for the IRP
>> Hillary Jett: (08:30) @Bruce yes we have a wireless microphone in the
>> Julia Wolman, GAC Denmark: (08:30) +1 Jorge
>> Kavouss.arasteh: (08:30) Pls avoid the use of the term " VOTE and
>>Voting" as much as possible
>> Robin Gross [GNSO - NCSG]: (08:30) thanks for the clarification,
>> Jordan Carter (.nz, WP1 Rapporteur): (08:31) an IRP might
>> Bruce Tonkin: (08:32) Hopefully there are roving microphones for use in
>> Wolfgang: (08:32) My understanding is that the final (consensus)
>>"community objection" is indeed something like the "consensus GAC
>>advice". The difference is that a rejected consensus GAC advice leads to
>>"consultations" and the publication of rationales.. A rejected
>>(Consensus) community objection would lead also to consultations but
>>could be further escalated to arbitration, right?
>> Hillary Jett: (08:33) @Bruce yes we have a roaming microphone in the
>> Jordan Carter (.nz, WP1 Rapporteur): (08:34) I don't support a
>>"unanimity" consensus level for the exercise of community powers. It's
>>too high a threshold.
>> jorge cancio (GAC Switzerland): (08:34) Dear Thomas: I agree with the
>>escalation approach, but please note: we cannot define consensus as a "no
>>objection"-standard. We have to define it as a process and as a level of
>> Robin Gross [GNSO - NCSG]: (08:34) Agreed, Jordan.
>> Bruce Tonkin: (08:35) Agreed @Jordan.
>> Gangesh Varma: (08:35) Is it possible to enable individual scroll on
>>the transcript? it was enabled earlier
>> avri doria (atrt, particpant): (08:38) my question is one of
>>clarification as to what this process applies to.
>> Grace Abuhamad: (08:38) @Gangesh --
>> jorge cancio (GAC Switzerland): (08:38) Dear co-chairs and staff:
>>please note for the record that I agree with the escalation approach, but
>>please note: we cannot define consensus as a "no objection"-standard. We
>>have to define it as a process and as a level of positive support
>> Gangesh Varma: (08:38) @Grace - Thank you
>> avri doria (atrt, particpant): (08:38) i sclarification question
>> Keith Drazek: (08:41) To Bruce's point, add a bullet under the last
>>Ladder Step for "Community-Board DIalogue"
>> Steve DelBianco [GNSO - CSG]: (08:41) @Bruce -- our LA breakout
>>requried the Board to be part of the Comm Forum discussion.
>> Robin Gross [GNSO - NCSG]: (08:43) key question, Avri.
>> Bruce Tonkin: (08:43) @Jonathan 0 thanks for clarifying the last step.
>> I think it would be useful to think through the actual process for how
>>the community objection is presented to the Board and how a dialogue
>>might happen. The Board in general will want to resolve a community
>>obejction as efficiently as possible. This usually requires a dialogue.
>> So how would he "dialogue" happen. e.g is thare some selected group
>>of community memebrs that would meet across the table with Board members
>>in a public forum of some sort. ie much how the Board meets with an SO
>>or AC during teh ICANn week today?
>> avri doria (atrt, particpant): (08:45) Steve, i agree, i thought the
>>Board was invovled in the Community forum part. though they were not part
>>of the decision making.
>> Bruce Tonkin: (08:45) @Steve - do you mean that the Baord would
>>participate in teh community forum and make a change to its deicsion
>>before the forum reaches a decision? I am not clear how that works.
>>I would edepct the Baord would use the foum to perhaps clarify its
>>reasoning, but an actual change to a Baord decision would presumably
>>happen in teh last step once it is clear whaqt the community as a whole
>>would like to see happen.
>> Becky Burr: (08:46) @Bruce - isn't that really up to the Board?
>> Bruce Tonkin: (08:46) Changes to Board decisions are not made o teh fly
>>- but generally woudl result from a Board meeting scheduled 7 days in the
>>future with Board papers etc prepared in advance.
>> Keith Drazek: (08:46) +1 Kavouss, we need to allow for the ACs to
>>remain advisory if they choose to do so.
>> Ken Salaets: (08:47) if board engagement is during the third step, is
>>there a risk that the process may bog down? if the engagement in step 3
>>is informal or as a community member, it could make for a more efficient
>>process, but it seems having the "formal" engagement durng the last step
>>would be more definitive.
>> Cheryl Langdon-Orr - ALAC APRegional Member: (08:47) of course we do!
>> Keith Drazek: (08:47) No objection. I support this approach for further
>>work in the break-out sessions.
>> Jonathan Zuck (IPC) 2: (08:48) We welcome all comers in the subteam
>>discussion to flesh this out for each power tomorrow
>> Bruce Tonkin: (08:48) @Becky - I certainly think the Baord would want
>>to partipate in a communty forum. I am just wanted to clarify the more
>>formal process of how the Board changes its decision. In the byalws
>>the GAC and each of the supporting Orgs has a formal process for
>>resolving a difference with the Board. IT is not particularly defined -
>>but basically the Baord meets with the relevant committee or SO COuncil.
>> Just wanted to udnerstand how the Baord meets with the Community
>>formally at the end of the process described by @Jonathan.
>> Kavouss.arasteh: (08:50) Mathieu, Pls add in two areas after the term "
>>Objection " the following ? or AC Advice to the contrary" to maintain the
>>more straight forward Advice status of some ACs
>> Mathieu Weill, ccNSO, co-chair: (08:51) Avri : answer to your question
>>is at §101 of 2nd report : it is currently conceived through an IRP
>>challenge of the Board decision not to implement separation. There was a
>>CWG comment to that question
>> Kavouss.arasteh: (08:52) then the text would read " Try No Objection/
>>from SOs and No Advice to the contrary from ACs
>> Mathieu Weill, ccNSO, co-chair: (08:53) Thanks Kavouss, valuable indeed
>> Guru Acharya: (08:54) request the secretariat to ensure that the
>>breakout sessions remain friendly for remote participants. the breakout
>>sessions couldnt be followed by remote participants in the last face to
>> Grace Abuhamad: (08:54) Noted @Guru. Thank you
>> Kavouss.arasteh: (08:54) Mathieu, thank you are always positive and
>> Mathieu Weill, ccNSO, co-chair: (08:55) It's only the beginning of the
>>week Kavouss, I can't commit to that standard for the future ;-)
>> avri doria (atrt, particpant): (08:56) I do not accept that we should
>>walk away from the SM model at this point as there still is no direct
>>method for enforcing separability . one of our major requirements.
>> Kavouss.arasteh: (08:56) I am suggesting many obstacle put before us
>>and one of them was not to change the status of the ACs from advisory
>>capacity to ddecision making caoacity
>> Guru Acharya 2: (08:57) +1 avri
>> Jordan Carter (.nz, WP1 Rapporteur): (08:58) Avri, tease that out in
>>the discussion if possible?
>> Jordan Carter (.nz, WP1 Rapporteur): (08:58) we have to be confident
>>the requirements can be met
>> Robin Gross [GNSO - NCSG]: (08:58) we must be able to have seperability
>> Mathieu Weill, ccNSO, co-chair: (08:59) +1 Jordan, Avri this is a topic
>>to raise for clarity
>> Keith Drazek: (09:00) If the community can spill the Board, can't it
>>replace it with a Board that would permit/implement separability?
>> Bruce Tonkin: (09:00) @Avri - I assume speatalibility is built into the
>>bylaws. AS long as the bylaws are clear the resolutoin of separabiolity
>>shoudl be clear. A panel is then used to determine if the board is
>>adhering to bylaws.
>> Robin Gross [GNSO - NCSG]: (09:00) but individual SO's and AC's must
>>still be able to remove their director without approval of the other
>> Athina Fragkouli (ASO): (09:01) +1 Robin
>> Jordan Carter (.nz, WP1 Rapporteur): (09:01) Robin, I don't think that
>>that's connected to the enforcement model
>> Mathieu Weill, ccNSO, co-chair: (09:02) +1 Jordan, that can be
>>accomodated (although comments show diverging views on that)
>> Bruce Tonkin: (09:02) For enforcement losts of ways to add that. FOr
>>example gtld registry and ccTLD agreements could build in the separation
>>and arbitration into their agreements, same with RIRs and also ISOC/IETF.
>> Robin Gross [GNSO - NCSG]: (09:02) Keith, I don't see the community
>>realistically spilling the board. if communty empowerment is dependent
>>on spilling the board, I don't think it is enough.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:02) Avri: I asked our counsel
>>whether without membership it would be impossible for separation to
>>happen. They were very firm that that wasn't a problem.
>> Keith Drazek: (09:02) +1 Thomas. Evolution and refinement in response
>>to public comments is necessary to legitimize our process and the end
>>result. Doing so leads to success.
>> Robin Gross [GNSO - NCSG]: (09:02) Jordan, I was referring to the
>>comment the entire community would make decisions. So I was saying this
>>particular decision would be individual SOAC.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:02) So can you / we tease out
>>what you mean by "direct enforcement"?
>> Becky Burr: (09:03) I agree this is a possible way forward, but we
>>need to take care that the stick isn't so big that the community cannot
>> Kavouss.arasteh: (09:03) Our Legal Consel ,Holly and Rosemary have
>>kindly worked hard and produced a vefry valuable documents responding to
>>the Plan B ,in a more structured context
>> Bruce Tonkin: (09:03) @Robin - I thin if the Board decides to reject an
>>independent panel that finds find the Baord has breached its bylaws -
>>that would seem to be to be a very legitiamte reason to remove the Board.
>> Stephen Deerhake (.as): (09:04) +1 for Jordan's comment.
>> Robin Gross [GNSO - NCSG]: (09:04) I'd like to hear from our lawyers
>>about enforcement under designators.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:04) me too
>> Bruce Tonkin: (09:05) @Robin - my understanding that designators can
>>apppoint and remove directors under California law. The rest of a
>>matter of our bylaws.
>> Robin Gross [GNSO - NCSG]: (09:05) what if the board says "seperation
>>is against the global public interest". how do we get around that?
>> Bruce Tonkin: (09:06) @Avri - I think enforcement is probably a
>>combination fo what we put in our contracts with users of the IANA
>>functions, and the powers for removing Board directors or Baord as a
>> Julia Wolman, GAC Denmark: (09:07) It is of great concern if the
>>separability process could not be triggered effectively
>> Sabine Meyer (GAC - Germany): (09:08) +1 Julia
>> Robin Gross [GNSO - NCSG]: (09:08) did I just hear recalling the board
>>is the way of enforcement for separability? That doesn't sound good.
>> Julia Wolman, GAC Denmark: (09:08) +1 Robin
>> Guru Acharya: (09:08) the designator model strongly weakens the
>>dependency envisioned by the cwg. indirect enforcement will become a long
>>drawn process in which there is no way to ensure the subsequent board
>>will also not invoke fiduciary responsibility
>> Bruce Tonkin: (09:10) @Robin - it is one way but not the only way.
>> Robin Gross [GNSO - NCSG]: (09:11) the other way is an IRP decision and
>>hoping the board adopts the decision?
>> Guru Acharya: (09:11) how do we ensure the subsequent board wouldnt
>>again invoke fiduciary responsibility given its a statutory requirement.
>> Leon Sanchez (Co-chair ALAC): (09:11) @Robin the IRP award could be
>>enforced in Court as far as I understand
>> Bruce Tonkin: (09:11) @Avri - I am not sure how a member gives you
>>direct enforcement of separation of the PTI either - but maybe you can
>>explain that to me in the break
>> jorge cancio (GAC Switzerland): (09:12) absolutely agree with Roelof
>> Bruce Tonkin: (09:13) @Robin - one process flow is bylaws, independent
>>panel to review bylaws decision, and then removal of Board if Board
>>doesn;t follow that deicsion. TO get to that point the Baord is
>>clearly acting irresponsibly. You can simply not re-appoitn the current
>>directors (on average a third gets repalced every year) and then use a
>>mechanims to removel the whoel Board if you wish.
>> jorge cancio (GAC Switzerland): (09:13) recalling the Board is peanuts
>>so to say, compared to relinquishing the IANA functions
>> Guru Acharya: (09:13) is it an assumption that the subsequent board
>>will violate its fiduciary responsibilities?
>> Athina Fragkouli (ASO): (09:13) Agree with Roelof
>> Cheryl Langdon-Orr - ALAC APRegional Member: (09:14) agree with
>> Robin Gross [GNSO - NCSG]: (09:14) Leon, can we get that confirmed from
>> avri doria (atrt, particpant): (09:14) separation is just for names,
>>PTI could still keep doing Protocols and Numbers.
>> Bruce Tonkin: (09:14) @Jorge - exactly - if the communiyt through the
>>bylaws deicded to remove the IAN function - there is already a major
>>issue to resolve. A Baord shoudl never let the org get to that point
>>and shoudlo be removed almost at that point alone.
>> Pär Brumark (GAC Niue): (09:14) Agree totally with Roelof
>> Steve DelBianco [GNSO - CSG]: (09:14) @Roelof -- dthe board's fiduciary
>>duty to the Corporation might lead some directors to ignore the
>>community's consensus recommendation. Member model would allow SM to
>>override fiduciary duty to the corporation
>> Pär Brumark (GAC Niue): (09:15) Agree totally with Roelof
>> avri doria (atrt, particpant): (09:15) I do not agree. movig names away
>>frm PTI is not nuclear.
>> Leon Sanchez (Co-chair ALAC): (09:15) @Robin, yes I will ask them to
>>either confirm that is possible or clarify if it isn't
>> avri doria (atrt, particpant): (09:15) compounding that with Board
>>removal would be.
>> Bruce Tonkin: (09:15) @Steve - i waht way can a memebr override teh
>>Board on removable of a function. Do you mean that the member would
>>change the bylaws to remove the IANA function in thebylaws?
>> Jordan Carter (.nz, WP1 Rapporteur): (09:16) Holly - Rosemary: Can¹t
>>reserve the decision about separation to a designator. But - in a
>>designator model the single designator is a legal person could it have
>>standing to enforce bylaws?
>> Jordan Carter (.nz, WP1 Rapporteur): (09:16) (I feel like I shold know
>>the answer to that question)
>> jorge cancio (GAC Switzerland): (09:17) @Holly If I remember well, you
>>made an example in your memo on fiduciary duties that such a decision
>>(relinquishing the exercise of core functions of a non-profit) could be
>>made legally without conflict with the fiduciary duties
>> Steve DelBianco [GNSO - CSG]: (09:17) @Bruce -- my understanding is
>>that Member rights override a board's interpretation of its fiduciary
>>duties. Like Rosemary just said.
>> Kavouss.arasteh: (09:17) May be a flowchart will further clarify the
>> Jordan Carter (.nz, WP1 Rapporteur): (09:17) Absolutely Jorge.
>> avri doria (atrt, particpant): (09:17) separabilty is not divestiture
>>of the PTI, is is moving the names function elsewhere.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:17) "Fiduciary" duties don't
>>require the ICANN Board to decide against separation, either
>> Bruce Tonkin: (09:18) @Steve - I think it is notq quite right. The
>>memebr can make a decision - e.g around bylaws and a Board is not held
>>responsibile under fiduciary duties under law. I don;t think it is a
>>matter of a member "overriding" a Board fiduciary duty.
>> Steve DelBianco [GNSO - CSG]: (09:18) @Rosemary -- can you help Bruce
>>and I with out dialogue?
>> Steve DelBianco [GNSO - CSG]: (09:18) with our dialog, I meant
>> Keith Drazek: (09:19) Cherine's question is a good one and it is still
>> Kavouss.arasteh: (09:19) Steve, Member rights to override a board's
>>interpretation of its fiduciary duties. is a complex process
>> Bruce Tonkin: (09:19) My understanding from what Holly said - is that
>>hte bylaws can create a right for a member, and that the decision of that
>>member can be independent of the Board's fiduicary responsbility. If
>>the bylaws gave that power to an indepedent third party - then the Baord
>>can't rely on the decion of that party in a law suite that the Baord was
>>not acting in its fiduciary responsibility
>> Malcolm Hutty: (09:20) @Steve: The fiduciary duty of the directors is
>>to act in the best interests of the corporation in all the things they do
>>as directors (nb: directors individually, not Board collectively). If a
>>power is given to the Member, then the director hasn't done the thing,
>>the Member did it. Accordingly, the director's fiduciary duty isn't so
>>much "overridden" as simply inapplicable
>> Jordan Carter (.nz, WP1 Rapporteur): (09:20) nobody can say the Board
>>was in breach of its fiduciary duties by working to implement a decision
>>of the member, is the point.
>> Holly J. Gregory (Sidley): (09:20) +1 @Malcolm
>> Megan Richards European Commission: (09:21) Rights Malcolm. well put
>> Holly J. Gregory (Sidley): (09:21) and @Jordan, that is correct
>> Guru Acharya 2: (09:21) if the first board objectively determines that
>>separation violates fiduciary duty; why would a second board come to a
>>different conclusion from the first board. as a result, the power of
>>recalling doesnt help. members on the other hand can directly overcome
>>this responsibility of the board.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:22) ccTLDs will generally not
>>have contracts with ICANN
>> Cheryl Langdon-Orr - ALAC APRegional Member: (09:22) good point Bruce
>> Martin Boyle, Nominet: (09:23) @Joran: +1
>> Jordan Carter (.nz, WP1 Rapporteur): (09:23) and if you try and make
>>us, all hell will break loose :-)
>> Jordan Carter (.nz, WP1 Rapporteur): (09:24) holly did you see my
>> Niels ten Oever: (09:24) The microphone is not working in the browser
>> Leon Sanchez (Co-chair ALAC): (09:24) Don't be shy ;-)
>> Chris Disspain: (09:24) I can be aloof Thomas but I'm not remote!
>> Leon Sanchez (Co-chair ALAC): (09:24) we won't bite (too hard)
>> Niels ten Oever: (09:24) We can raise hand, but not connect audio
>> Kavouss.arasteh: (09:24) Thomas, There may be a need to further clarify
>>the process as currently stands to remobve these types of
>>misinterpretation or misunderstanding
>> Thomas Rickert, CCWG Co-Chair: (09:25) I hope we can clarify this with
>> Leon Sanchez (Co-chair ALAC): (09:25) @Niels you can post questions in
>>the chat with labels <QUESTION> or <COMMENT>
>> Niels ten Oever: (09:25) oks, thanks!
>> jorge cancio (GAC Switzerland): (09:26) when will we receive our
>>well-earned certificate in Californian Corporate Law?
>> Mathieu Weill, ccNSO, co-chair: (09:26) +1 Jorge
>> Alan Greenberg: (09:26) Is there not a diali-in (and dial-out) bridge
>>for this meeting as well?
>> Kavouss.arasteh: (09:26) We should not over emphasize the advantages of
>>Sole Designator as there are some shortcomings .That has not nothing to
>>do if we opt for Sole designator model due to the prevailing
>> Bruce Tonkin: (09:27) @Jordan - taht is the current situation - but I
>>can imagine that ccTLD might want to enter an agreement that ensures taht
>>ICANN implements the decisions taht matter to them. ie a contract is
>>the best form of enforcement - and then it is a matter of what is in and
>>out of that contract. I would assume that a ccTLD would be wary for
>>example of agreeing to release their ccTLD intheir contract - so don;t
>>put that in the agreement.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:27) "Global Public Interest"
>>is served by ICANN being a solid steward and vehicle for the needs of the
>>IANA customers at least in large part.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:27) ICANN serves the global
>>public interest by serving its customers.
>> Megan Richards European Commission: (09:27) @jorge. next CENTR/HLIG
>> Bruce Tonkin: (09:27) If a ccTLD has an agreement - then it has direct
>>enforcement powers separeate from the ccNSO or other community group.
>>So if I was a ccTLD manager that is what I would be seeking.
>> Seun Ojedeji: (09:28) Jordan Carter (.nz, WP1 Rapporteur): nobody can
>>say the Board was in breach of its fiduciary duties by working to
>>implement a decision of the member, is the point. Me: If you consider
>>that member decision is not to be implemented by members but by board
>>then you will agree that its possible for member decision(lower case D)
>>could indeed infringe on board fiduciary duties
>> Jordan Carter (.nz, WP1 Rapporteur): (09:28) anything else is simply a
>> Robin Gross [GNSO - NCSG]: (09:28) Jordan, perhaps some board members
>>would feel that we THEY know the public interest, not the community. I
>>think that is a problem.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:28) seun, no, you're wrong on
>>the law on that one i'm afraid.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:28) the duties do apply to how
>>they "implement" the decision, and that's a good thing
>> Jordan Carter (.nz, WP1 Rapporteur): (09:29) Robin: I agree it's a
>>problem. It's a symptom of a problematic culture in the ICANN Board.
>> Malcolm Hutty: (09:30) @Robin: agree, which is why I have always been
>>sceptical of including the phrase "public interest" in the Bylaws.
>>Instead I prefer specifying where we think the public interest lies, and
>>writing that in instead. Anything else gives the Board an unlimited and
>> Kavouss.arasteh: (09:30) That circumstances occurred in WSIS is QUITE
>>DIFFERENT ISSUE. We should not follow that approach AT ALL
>> Robin Gross [GNSO - NCSG]: (09:30) Malcolm, that is precisely my
>> Leon Sanchez (Co-chair ALAC): (09:30) I would think that regardless of
>>the Board or some members of it arguing public interest as a way of not
>>complying with an IRP, that could be taken into Court and then it would
>>be up to the Court to decide whether the Board is acting in line with its
>>fiduciary duties, in which case it would dismiss the IRP, or if the Board
>>is only arguing fiduciary duties as a matter of not willing to comply
>>with the IRP award, in which case it wuold uphold the IRP award and
>>oblige the Board to implement the IRP outcome
>> James Bladel: (09:32) Thanks, Mattieu. We need to continue to clairfy
>>that point, as it is a common criticism against SMM or Designator models.
>> Robin Gross [GNSO - NCSG]: (09:33) Leon, so we would be asking the
>>court to 2nd guess what is in the public interest?
>> Leon Sanchez (Co-chair ALAC): (09:33) @Robin, no. We would be asking
>>the Court to confirm whether the Board is acting on fiduciary duties or
>> Robin Gross [GNSO - NCSG]: (09:33) Leon, I think the concepts are
>> Leon Sanchez (Co-chair ALAC): (09:34) @Robin it could come down to that
>>but I would be wary before jumping into that conclusion
>> Robin Gross [GNSO - NCSG]: (09:35) Leon, let's see if we can build
>>something so we don't get to that point.
>> Seun Ojedeji: (09:35) @Jordan when you say the duties apply to how they
>>implement then i wonder whether we are really disagreeing. If the
>>community says this is what board needs to implement and board comes back
>>explaining rationale on why they think it should not go this way, I
>>expect that board at that point is considering the community decision
>>(recommendation) inline with its fiduciary duties.
>> Leon Sanchez (Co-chair ALAC): (09:35) @Robin exactly! Escalation might
>>be the solution to this
>> Jordan Carter (.nz, WP1 Rapporteur): (09:35) Seun yep
>> Malcolm Hutty: (09:36) @Leon, the fiduciary duty simply means that the
>>directors must act in what they consider the best interests of the
>>corporation. If the Board is allowed to ignore an IRP merely because they
>>think it best to do so, that's a problem.
>> Bruce Tonkin: (09:36) It seems weird that a Califrnia court would
>>decide whether the Baord is acting in the global public interest and is
>>acting on behalf of the Internet community. ie I doubt it is a mater of
>>arging fiduciary rights. It is about shoudl be about enforcing what we
>>have agreement witht e community in our bylaws and in our contracts
>>withparts of the community
>> Jordan Carter (.nz, WP1 Rapporteur): (09:36) the difference between
>>members and not members is that without memebrs, the Board always has to
>>make the decision, and always has to apply its fiduciary duties. so you
>>can't have anyone else make the "call".
>> Jordan Carter (.nz, WP1 Rapporteur): (09:36) (sorry that last comment
>> Bruce Tonkin: (09:36) ie the courts should be focussing on enforcing
>>our agreements, not trying to second guess decisions made by the Board or
>> Jordan Carter (.nz, WP1 Rapporteur): (09:37) and can I just say for the
>>record -- fiduciary duties are a GOOD thing. :-) We WANT the Board
>>members to have them.
>> Robin Gross [GNSO - NCSG]: (09:37) Rosemary, so it is the case that the
>>board can just say "it is in the public interest to do X", and there is
>>nothing we can do except spill the board?
>> Jordan Carter (.nz, WP1 Rapporteur): (09:38) Robin: and would the
>>answer to that be different between designator and member?
>> Bruce Tonkin: (09:38) @Robin - well that is basically what you have
>>with the NTIA today. if you don;t like their stewardship of IANA then
>>change the government. :-)
>> Robin Gross [GNSO - NCSG]: (09:38) It is my understanding they are
>>different, Jordan. Members make the call, not the board. that is why
>>this is key, I think.
>> Seun Ojedeji: (09:38) @Jordan and I think that is where we might be
>>getting it wrong, its not the member status that makes that happen. Its
>>the layed down process that matters, if the process says board should
>>engage the community in certain manner then it should irrespective of
>>whether its a member community or otherwise
>> avri doria (atrt, particpant): (09:38) rows 6 & 7 look like die in the
>>ditch columns to me
>> Malcolm Hutty: (09:38) @Bruce my understanding of the advice is that
>>Californian court would NOT "decide whether the Baord is acting in the
>>global public interest and is acting on behalf of the Internet
>>community". They would uphold the Board's business judgement in doing
>>what they think is the best interests of the corporation (absent some
>>reason why they were not, such as corruption). The only way the Court
>>comes out against the Board is if we set up a rule base to require it to
>>do so, which is how we ended up with SMM
>> Kavouss.arasteh: (09:39) Co _Chairs
>> avri doria (atrt, particpant): (09:39) i mean die in the dirch rows.
>>mixing my rows and columns
>> Bruce Tonkin: (09:39) @Malcolm - I agree. We shoudl focus on ensuring
>>that the Court enforces our rule base, and ensure we have an appropriate
>>mechanism to do so.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:40) Seun: that's where we
>>to have different interpretations of the legal situation :-)
>> Seun Ojedeji: (09:40) The CMSM is aa good way to ensure that there is
>>consensus and contrcutive way to get the view of the community (which is
>>a good thing) and thats what I think has been lacking so far
>> Kavouss.arasteh: (09:40) We need Coffiee
>> Sabine Meyer (GAC - Germany): (09:40) Absolutely, Kavouss.
>> avri doria (atrt, particpant): (09:41) we have settled on a model
>>twice. you are asking us to resettle on a different model
>> Cheryl Langdon-Orr - ALAC APRegional Member: (09:41) I peronally Gsrre
>>with th comment Seun
>> Jordan Carter (.nz, WP1 Rapporteur): (09:41) yep it is, Seun. But as
>>Jonathan Z pointed out, we're dealing with the "what happens after that"
>>question in much of this work.
>> Bruce Tonkin: (09:41) @Malcolm - the big surprise for me in this whole
>>process was that it was difficult to enforce the rules base of teh
>>bylaws. There are ways to solve for this - I think it is a
>>fo the contract path that Daivd Johnson and David Post have suggested,
>>and some for of board removal process.
>> Robin Gross [GNSO - NCSG]: (09:41) why settle until we see details?
>> avri doria (atrt, particpant): (09:42) additonally we have no
>>indication that the Board accepts that model, so why switch to it? We
>>need to present a model we beleive works - and I agree we should stick
>>woth the reference mode until we have a good reason to move.
>> Robin Gross [GNSO - NCSG]: (09:42) I'm just not comfortable with a
>>model in which the board can say "public interest is x" and we can do
>>nothing about it but spill the board.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:43) Robin, but what else
>>we do, based on the suite of powers we have talked about?
>> avri doria (atrt, particpant): (09:43) the Board cannot be a reason to
>>shift to the SD model as they do not accept the SD model.
>> Jordan Carter (.nz, WP1 Rapporteur): (09:43) separate the quesiton of
>>how to enforce these powers, with what they actually are- what would you
>>like the power to "do" in such a case?
>> Robin Gross [GNSO - NCSG]: (09:43) we could stick with membership
>>the board can't dictate decisions by claiming public interest. (playing
>>devil's advocate here)
>> Jordan Carter (.nz, WP1 Rapporteur): (09:44) I don't follow - I don't
>>see how the Board's ability to do that changes between enforcement
>> Jordan Carter (.nz, WP1 Rapporteur): (09:44) based on the powers we've
>>wanted to let the community exercise
>> Rosemary Fei (Adler & Colvin): (09:45) Bruce, courts will enforce
>>contracts UNLESS the terms of the contract violate the Board's
>>duties by taking a key decision away from the Board. The Board does not
>>have the power to contract away those duties. So you're right that
>>courts defer to directors' judgment under the business judgment rule,
>>including determining what is in the global public interest, but the
>>business judgment rule will not prevent a court from determining that a
>>contract obligated abdicating fiduciary duties and therefore refusing to
>>enforce the contract..
>> avri doria (atrt, particpant): (09:45) the SD does not give us the
>>pwoers we need for separabilty and binding IRP
>> FIONA ASONGA (ASO): (09:45) @Mathew Weil I agree with your approach
>> Mathieu Weill, ccNSO, co-chair: (09:45) @Avri : those are the key
>>discussions to have
>> avri doria (atrt, particpant): (09:46) this is first and foremost
>>replacing NTIA, we need row 7 for replacing NTIA.
>> Guru Acharya: (09:46) why cant we have both members and
>>designators. the designator indirectly enforces powers 1-6 using board
>>recall. the members directly enforces power 7 by exercising its rights
>>overcome fiduciary responsibility. the sidley memo explains how the
>>members powers can be constrained for powers 1-6
>> Kavouss.arasteh: (09:46) Avri, but it has other advantages
>> Robin Gross [GNSO - NCSG]: (09:46) if we have to rely on spilling the
>>board for those two powers, it is a problem.
>> Athina Fragkouli (ASO): (09:46) +1 Roelof
>> Bruce Tonkin: (09:47) @Robin - agreed. SO add contract powers as
>> Steve DelBianco [GNSO - CSG]: (09:47) Right Roelof -- public comments
>>were not specific about whether enforcement must be DIRECT (statutory
>>court order) or INDIRECT (Spill Board)
>> Bruce Tonkin: (09:47) The courts will enforce a contract - it is
>> Robin Gross [GNSO - NCSG]: (09:47) Bruce, but Rosemary just said you
>>can't contract away fiduciary duties.
>> Kavouss.arasteh: (09:47) We may resolve the issue of separibility in
>>the designator model differentlyy
>> Steve DelBianco [GNSO - CSG]: (09:47) For my part, I'd like to know
>>whether the CCWG participants think INDIRECT is sufficient for WS1
>> Keith Drazek: (09:47) We should also be cognizant of NTIA's reminder
>>try to find the simplest / least complex way to achieve the goals and
>>community powers. Which of SM or SD is less complex in the context of
>>empowerment and implementation?
>> Kavouss.arasteh: (09:48) By the way the Plan B does address all these
>> Bruce Tonkin: (09:48) @riobin that sonds weird to me. I company A
>>loses a contract with company B, then the court will enforce that
>>contract process. COmpany A can;t see that it is against their
>>not to continue their contract etc.
>> Guru Acharya: (09:48) @steve: why cant we have both
>>and designators. the designator indirectly enforces powers 1-6 using
>>board recall. the members directly enforces power 7 by exercising its
>>rights to overcome fiduciary responsibility. the sidley memo explains
>>the members powers can be constrained for powers 1-6.
>> Steve DelBianco [GNSO - CSG]: (09:49) @Kavouss -- since you mention
>>plan B, let me say that we ONLY need to talk about plan B if we (CCWG)
>>decide to go with something other than Membership. Agree?
>> Kavouss.arasteh: (09:49) We have porolems with CMSM ,We have problems
>>with SD. We have problkems with MEM.F
>> Steve DelBianco [GNSO - CSG]: (09:50) @Guru -- I don't know if that's
>>legalyl possible. But I do think that is too complex for us to
>>the details in the next several days.
>> Kavouss.arasteh: (09:50) that is why the PlaB is proposed
>> Bruce Tonkin: (09:50) If ICANN loses its contract with NTIA - can
>>then go to court and say that it is against the Baord's fiduciary duty
>>lose the contract?
>> avri doria (atrt, particpant): (09:51) i think the education i got in
>>Law was worth it, no matter what happens.
>> FIONA ASONGA (ASO): (09:51) Is it possible to discuss the merits of
>>principle and identify what we have concensus on that meets NTIA
>>requirements without first plugging it into a membership model?
>> FIONA ASONGA (ASO): (09:51) It may help us move forward with our
>> Sabine Meyer (GAC - Germany): (09:51) Avri, what about those of us who
>>are lawyers already?
>> Mathieu Weill, ccNSO, co-chair: (09:52) Continuous learning Sabine
>> Edward Morris: (09:52) Dictatorship is easy to explain if that is our
>> Steve DelBianco [GNSO - CSG]: (09:52) Jones Day and CCWG Counsel are
>>odds about whether we can use bylaws to constrain the Member's exercise
>>of statutory powers. I wonder if Holly and Rosemary can speak about
>> avri doria (atrt, particpant): (09:52) Fiona, the problem is that when
>>we searched for what could satisfy the separabilty capability for NAMES,
>>membership was the only direct pwoer to be had.
>> Kavouss.arasteh: (09:52) Plan B does not point toward any specific
>>Model at this point of time but concentrate on the powers and their
>>enforcemnet which could be used with any Model at this stage but at
>>stage through inclusion of necessary provisions in the Bylaws we could
>>comeback to resol;ve any encountered problems and perhaps opt for CMSM
>> Robin Gross [GNSO - NCSG]: (09:52) Steve, yes, I'd like to know that
>>clarification as well.
>> Guru Acharya: (09:53) the sidley memo is very clear that members
>>can be constrained in phase 2
>> avri doria (atrt, particpant): (09:54) we will never remove doubt as
>>ICANN's, or any of our, stabilty. what esle is new?
>> Kavouss.arasteh: (09:55) We need to concentrate on how to bring
>>different vuiews colse to each other in order ,on one hand to save the
>>process of transition and , on the other hand exercise all required
>>powers and their enforcement and then having the possibility to review
>>the goivernance mechanism at later stages
>> Bruce Tonkin: (09:55) @Kavouss - agree.
>> FIONA ASONGA (ASO): (09:57) @Avri we shall eventually end up with a
>>membership model but I think starting from the reverse with the agreed
>>and concensus then finalise with naming the model may help us at this
>>point in time where some feel they have already put in so much to reach
>>where we are and that effort should be appreciated as well.
>> FIONA ASONGA (ASO): (09:57) +1 Kavous
>> Edward Morris: (09:58) If we leave membership and lose the statutory
>>rights of inspection and derivatives ICANN will be susceptible to the
>>same sort of financial corruption that sank FIFA. without ultimate.
>>access to the financial records provided by inspection through
>>the community will not have the ability to get the information needed to
>>know about and prevent FIFA type corruption.
>> Keith Drazek: (09:59) I agree with Sebastien on the substance....a
>>"single X model" has built-in protections in that it requires the
>>community to work together and reach consensus on activating and
>>enforcing the community powers. I think the only outlier on this is the
>>process for removing individual directors, but that's a technicality
>>within the Single X Model as discussed earlier.
>> Kavouss.arasteh: (09:59) We need to save transition .Several OCs are
>>frustrated of the diversions on the methoid that may impact the
>>transition . some of them are not impacted by any model but are
>>that the transistyion happens
>> Robin Gross [GNSO - NCSG]: (09:59) If we have to rely on board spill
>>power to get powers in row 6 and 7, or perhaps any power when the board
>>says "public interest", I'm not sure we meet requirements
>> Kavouss.arasteh: (09:59) We need to think of them as well
>> Edward Morris: (09:59) +1 Robin.
>> Guru Acharya: (10:00) +1 robin
>> Jordan Carter (.nz, WP1 Rapporteur): (10:00) rely on board spill if an
>>IRP finding that the Board didn't follow the process was ignored...
>> avri doria (atrt, particpant): (10:00) so after all that we are still
>>moving the the SD. talk about capture?
>> Jordan Carter (.nz, WP1 Rapporteur): (10:00) (the process to exercise
>>all of the other powers)
>> Jordan Carter (.nz, WP1 Rapporteur): (10:00) no, Avri.
>> Robin Gross [GNSO - NCSG]: (10:01) I've asked for some time to see
>>we can get with designator, but it is not looking adequate as we tease
>>this out today.
>> Cheryl Langdon-Orr - ALAC APRegional Member: (10:02) @Edward I believe
>>we will look at th mtter yu raise when we get to the 'budget' part of
>> avri doria (atrt, particpant): (10:02) i beleive this is capture by
>> Edward Morris: (10:03) We already considered this model. If we move to
>>single designator will we be returning to single membership next month
>>when members of Congress review the record of the "bottom up" process?
>> avri doria (atrt, particpant): (10:04) we have a model and we should
>>focus on dealing with the cricisims and questions that were raised about
>>. moving to a new model seems completely inappropriate to me as a focal
>>item. that, if anything, should be a bar bof issue.
>> Malcolm Hutty: (10:04) @Avri. Sadly, I agree.
>> Robin Gross [GNSO - NCSG]: (10:04) I definitely think Designator is
>>worth exploring, but NOT shifting models until AFTER we do the
>>exploration and determining it is adequate.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:05) I don't know how to be
>>plainer about my view: I'd only support us deciding to change model
>>*after* an analysis, not before it.
>> Guru Acharya: (10:05) i agree with avri and robin
>> avri doria (atrt, particpant): (10:05) Malcolm, when we agree, there
>>a fault in the fabric of the world.
>> wolfgang2 2: (10:06) Kavous is right: Substance is they key. The
>>war" iis not helpful. Form follows function.
>> James Bladel: (10:06) I agree with those that Switching Models at this
>>stage in the game is a significant change and must be only be considered
>>after careful & compellling analysis. Thx.
>> FIONA ASONGA (ASO): (10:06) +1 Wolfgang
>> Greg Shatan: (10:06) Hello, all. Sorry to be late.
>> avri doria (atrt, particpant): (10:08) Wolfgan, this is not model
>> I wish people would stop characteriaing it that way. We reviewed the
>>requirements substantively and the SM model evolved. no one came into
>>this process sporting a a SM model. it is the only one that directly
>>meets the CWG reuqirements for sperability.
>> Malcolm Hutty: (10:08) Agree to all that Wolfgang, but what about all
>>the analysis we have done in the past that caused us to pick SMM in the
>>first place? If we adopt SD as reference moel now, we are throwing that
>>all away and reverting to where we were in May to re-prove why SD is not
>>sufficient. We should instead be working through the criticisms of the
>>current reference model, seeing what can be accomodated, what is mere
>>failure to explain on our part, what is fundamental. This process avoids
>>that vital work
>> Megan Richards European Commission: (10:09) +1 Avri
>> Guru Acharya: (10:10) +1 Avri
>> Keith Drazek: (10:11) One of the concerns raised during the public
>>comments, by multiple commenters, is the proposed "change to the
>>governance model." According to the lawyers, we are already acting as
>>Designators, so that would be a smaller change to the so-called
>>governance model relative to a member structure. I think a further
>>analysis and comparison of both SM and SD is appropriate for the
>> Greg Shatan: (10:11) If anything, it's a function war. And the
>>question is, does the SD model bring the proper functionality, including
>>the empowerment of the community and the CWG dependencies?
>> David McAuley (RySG): (10:13) This has been a good discussion, and to
>>me one important bit was a chat comment by Bruce which, if I read
>>correctly, suggested the possibility of sole designator PLUS contract
>>perhaps a good way to move to designator model and get rows 6 and 7
>> avri doria (atrt, particpant): (10:14) David, who would/could be the
>> Robin Gross [GNSO - NCSG]: (10:14) David, let's ask our lawyers to
>>clarify because what I thought I heard earlier was that they could NOT
>>contract away fiduciary duties and those are invoked.
>> Greg Shatan: (10:15) +1 Robin. That was a critical memo from
>> Bruce Tonkin: (10:15) @Jordan - I hear you say that that individual
>>and ACs shoudl be able to exercise the pwoer to remove their directors.
>>However would an intermediate step where there is at least an pen forum
>>where the broader community can comment be acceptable?
>> David McAuley (RySG): (10:15) The contracting party needs to be
>>out but the community in some form
>> avri doria (atrt, particpant): (10:15) with a Ry or Rr, there is a
>>person to contract. with the ICANN community, who does the Board make a
>> avri doria (atrt, particpant): (10:15) the community as UA?
>> Bruce Tonkin: (10:16) ie let the SO and AC make the final deicsion -
>>but ensuring that an appropraite process is used - where the relevant
>>Board member has a right of reply and others can provide feedback. e.g
>>Individual Baord memebrs may want to provide some comments as input to
>>the decision making process.
>> David McAuley (RySG): (10:16) @Avri, not sure now but UA or some
>>form the legal advisors could help with
>> wolfgang2 2: (10:17) @ Avri: Yes the UA option was never removed fro
>>the taable, as far as I remember.
>> Robin Gross [GNSO - NCSG]: (10:17) Bruce, I believe that is in point 5
>>- the community forum, reply, etc.
>> Greg Shatan: (10:17) That threshold is a bit low.
>> Bruce Tonkin: (10:17) Thanks @Robin - so the community forum is used
>>for the removal of individual board members?
>> Bruce Tonkin: (10:18) ie a community form is used to help the SO make
>> Jordan Carter (.nz, WP1 Rapporteur): (10:18) Mike - do you recall
>>Christopher W's comments?
>> Robin Gross [GNSO - NCSG]: (10:18) right - look at point 5 on page 1
>>explain that process.
>> Robin Gross [GNSO - NCSG]: (10:18) that last comment was to Bruce.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:20) Bruce: absolutely. That's
>>always been the case since second draft.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:20) Community Forum has to be
>>used before exercising **any** of the powers.
>> Bruce Tonkin: (10:24) Thanks for clarifying @Jordan.
>> Robin Gross [GNSO - NCSG]: (10:24) how would removing a board member
>>create a concentration of power? these arguments against individual
>>removal don't make sense.
>> Guru Acharya: (10:25) if there is a sole designator then it alone has
>>the right to select and remove. it can not be circumvented by bylaws. so
>>having a so/ac to remove/select a director may not be permissible if we
>>move to a sole designator where community is the sole designator
>> Jordan Carter (.nz, WP1 Rapporteur): (10:25) Cherine - I only got two
>>points there - about the parliamentary nature you see happening, and the
>>two classes - did I miss the third?
>> Bruce Tonkin: (10:25) @Robin 0 it is probabky worth you speaking with
>>Cherine directly to hear his concerns and attempt to address them.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:25) Guru: in a legal sense it
>>can be done with a sole designator same as it can with a sole member
>> Jordan Carter (.nz, WP1 Rapporteur): (10:25) the sole x "validates"
>>decision of the SO or AC
>> J: (10:26) +1 Jordan
>> Jordan Carter (.nz, WP1 Rapporteur): (10:27) thanks J :-)
>> Robin Gross [GNSO - NCSG]: (10:27) we've got a lot exaggerated
>>ambiguous dangers ascerted about a common ordinary tool: removing your
>> Athina Fragkouli (ASO): (10:27) +1 Greg
>> Robin Gross [GNSO - NCSG]: (10:28) Agree with Greg too.
>> Guru Acharya: (10:28) the sidley memo was quite clear that bylaws can
>>not restrict the statutory powers of a designator to select and remove
>> Kavouss.arasteh: (10:28) There is a NEED to review and redress the
>>process of removal of indivudual Boardd Mmembers
>> Robin Gross [GNSO - NCSG]: (10:29) Great point, Athina.
>> Greg Shatan: (10:30) Guru, this is a question of how the governance of
>>the designator. by the entities that put it in place. It is not being
>>restricted by an outside body.
>> Robin Gross [GNSO - NCSG]: (10:30) why do we keep pretending this is
>> Rinalia Abdul Rahim: (10:30) On Greg's point about concentration of
>>power in appointing a director: Point of appointment and removal is
>>different in the sense that once a director is appointed, s/he is
>>required to look after the interest of the ICANN and the community as a
>>whole + global public interest. With single So/AC with the power to
>>remove the individual director, that is leverage/pressure on the
>>to veer from the public interest and all community focus.
>> Malcolm Hutty: (10:31) We are moving backwards, re-opening questions
>>that have been considered and addressed as if they are new. We should be
>>refining our proposal, addressing new detailed criticisms through
>>not reverting to where we were in May
>> Robin Gross [GNSO - NCSG]: (10:31) Rinalia, I just don't buy that
>>argument. The legislature set up the designator system so the
>>can be removed.
>> Alan Greenberg: (10:32) @Rinalia. Perhaps we need an additional Bylaw
>>requirement that a director owns a backbone.
>> Robin Gross [GNSO - NCSG]: (10:33) we do, Alan.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:33) Rinalia, but that implies
>>that that doesn't happen in *all the other organisations* that allow
>> Seun Ojedeji: (10:33) @Robin I don't think its about whether directors
>>should not be removed as I think most community supports that, I think
>>its about who removed a director that is serving the entire community?
>> Jordan Carter (.nz, WP1 Rapporteur): (10:33) It implies in other words
>>that ICANN's currently unusual model is the only one that works.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:34) I don't think that the
>>evidence supports such an argument
>> Rinalia Abdul Rahim: (10:34) @Robin, sure. There are people who buy
>>and people who don't. One can also argue that ICANN is special and that
>>it needs this special amendment to the designator power, specific to
>> Robin Gross [GNSO - NCSG]: (10:34) exactly, Jordan.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:35) ICANN isn't special in a
>>fundamental sense: it is a group of people trying to work together. Its
>>subject matter is special, but that's it.
>> Robin Gross [GNSO - NCSG]: (10:35) I don't think anyone can credibly
>>make the claim "ICANN is special, so designators shouldn't be allowed to
>>remove their director".
>> J: (10:35) AGree
>> Greg Shatan: (10:36) Agree,
>> Kavouss.arasteh: (10:36) MathieuBoth versions are workable but we need
>>a little bit of reflection which one is more in line with coorporation
>>Law applicable in CA
>> Rinalia Abdul Rahim: (10:36) You can allow a designator to remove a
>>director, but that decision should not be closed to a specific SO/AC.
>>The community shoudl be able to weigh in.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:37) Rinalia: that just isn't
>>what the community has been askign for, and it isn't what the weight of
>>public comments supports.
>> Robin Gross [GNSO - NCSG]: (10:37) Rinalia, the community participates
>>in the forum, the SOAC makes the DECISION, as was designed by statute.
>> Jordan Carter (.nz, WP1 Rapporteur): (10:37) I understand the
>>perspective and I am hearing it loud and clear tho. :-)
>> Greg Shatan: (10:38) While I can see the point of having the community
>>weigh in, the ultimate decision to remove a board member should stay
>>that SO/AC, just as it would at the end of that Board member's term.
>> Athina Fragkouli (ASO): (10:38) +1 Robin
>> Jordan Carter (.nz, WP1 Rapporteur): (10:38) I don't think there is
>>legal question that we can make any of these options work
>> Seun Ojedeji: (10:39) @Robin any community model that is based on
>>"sole" implies that its a collective effort so on that basis alone
>>tell imply that an SO/AC should not solely remove board member. That
>>said, even in member organisation 1member (1stakeholder) does not remove
>>board member, many stakeholder performs that role
>> Robin Gross [GNSO - NCSG]: (10:39) That is one interpretation, Seun,
>>just not the majority interpretation, or the law.
>> Leon Sanchez (Co-chair ALAC): (10:39) Indeed @Rinalia. As @Robin says
>>correctly, it would be the community who would, in the end, decide on
>>Board member removal. The designating SO/AC would initiate the process
>>but it would need the support of other SO/ACs
>> Jordan Carter (.nz, WP1 Rapporteur): (10:40) It's interesting that we
>>have debated this question at Frankfurt, Istanbul, Buenos Aires, Paris,
>>Los Angeles, and now at wherever we are now
>> Greg Shatan: (10:40) Leon, I did not think that was the case.
>> Robin Gross [GNSO - NCSG]: (10:40) and the conflict of interest is
>> Jordan Carter (.nz, WP1 Rapporteur): (10:40) Leon: that's not what our
>>second draft proposal says.
>> Guru Acharya: (10:40) @greg: my question was if we have a sole
>>designator model as our final model; then can we simultaneously have the
>>so/ac as the designators for individual board recall? how do we make a
>>sole designator model coherent with board recall by a so/ac.
>> cherine chalaby: (10:40) Roelof+1
>> Seun Ojedeji: (10:41) Saying its not majority can be assumptive and
>>saying its one interpretation of the law means that its legally correct.
>>Its just a matter of what we agree upon and not always about what the
>>says because there are serveral ways to legally make things work
>> Malcolm Hutty: (10:41) Board members do not wish to be removed, so
>>increasing the level of consensus that is required to remove them to a
>>consensus in multiple SOACs helps make them more comfortable with the
>> Jordan Carter (.nz, WP1 Rapporteur): (10:41) the law can make it work
>>any which way on this, we know that.
>> Robin Gross [GNSO - NCSG]: (10:42) And it would make the proposal
>>unacceptable to many of us, Malcolm.
>> Malcolm Hutty: (10:43) Now if we limit the petitiion to support to the
>>SOAC appointing, then we have achieved the greatest possible limitation
>>on removal - albeit at the cost of inconsistency with the argument that
>>the director is supposed to serve the whole community. If that's so, why
>>can't any part of the community petition for removal?
>> Athina Fragkouli (ASO): (10:43) @Malcolm, did the Board express
>>concerns or preferences about this power?
>> Keith Drazek: (10:43) We need to find appropriate
>>checks/balances/protections to prevent the parliamentization of the
>>Board, but not unduly limit the ability of an appointing group to
>>replace, per Athina's earlier comments. We need to find a balance on
>> Jordan Carter (.nz, WP1 Rapporteur): (10:43) we have no mandate from
>>the public feedback we have received on *two* proposals to change how
>> Malcolm Hutty: (10:43) @Athina, well Cherine has intervened, just now
>> Jordan Carter (.nz, WP1 Rapporteur): (10:43) we can make it work
>>better, for sure.
>> Athina Fragkouli (ASO): (10:45) @Malcolm, was that on behalf of the
>> Brenda Brewer2: (10:50) LUNCH BREAK until 1:00 Dublin time -- 12:00
>> tylercompton: (11:48) If ICANN¹s sole mission were ³the coordination
>>and oversight of the internet identifier registries so that each was
>>administered in accordance with the policies established in an open and
>>transparent manner by the respective affected community², then one no
>>longer has to have concern about Board judgement of best interests of
>>corporation no amount of deferment to ³reasonable business judgement²
>>would overcome the stark clarity of the purpose of the corporation.
>> tylercompton: (11:48) Each step away from such clarity, via
>>introduction of additional principles and goals or the Board to
>>enables reasonable people to come to different decisions regarding the
>>primary interests applicable to any given decision.
>> John Curran: (11:53) you makes it everything to everyone, it can do
>>anythign it wants.
>> Niels ten Oever: (11:53) Audio not working for me. It is just me?
>> Niels ten Oever: (11:54) Only hear faint sounds in the background.
>> Brenda Brewer2: (11:54) No audio yet.
>> Paul Rosenzweig (Heritage): (11:55) No audio for me either
>> Keith Drazek: (12:00) 2 minute warning....
>> Kavouss.arasteh: (12:01) All Options are on the table
>> Kavouss.arasteh: (12:01) Nothing agreed until every thing is agreed
>>we can take the step by step principle to build up consensus
>> Alice Jansen 2: (12:07) Document currently being discussed can be
>> Steve DelBianco [GNSO - CSG]: (12:20) Are we now discussing these 7
>>Items as a block, or one at a time?
>> Keith Drazek: (12:22) The community powers around budget and strategic
>>plan veto/approval are focused on allocation of expenses, not revenues.
>>agree that any approach using a previous year +10% calculation has
>>if revenues fall beneath expenses. The community veto can not be used to
>>indirectly increase fees/revenues.
>> avri doria (atrt, particpant): (12:24) for once I agree with mathieu,
>>development budgets of new protocols are not affected by a 3 month
>> Jordan Carter (.nz, WP1 rapporteur): (12:25) and there would still
>>to be a separate veto, and the idea that the community would veto a much
>>needed development sort of defies reason, right?
>> Jonathan Zuck (IPC): (12:26) @Kavouss. it would be an extereme
>>situation when a veto comes up.
>> Mathieu Weill, ccNSO, co-chair: (12:26) Thanks Avri
>> Alan Greenberg: (12:26) I'm not sure where "3 months" came into this
>>discussion. All I said is that if we decide that a substantive IANA
>>budget increase is necessary, it should not be blocked because of a
>>dispute on some other issue.
>> Alan Greenberg: (12:27) Perhas my "dnssec-2" WAS A POOR EXAMPLE.
>> Keith Drazek: (12:29) Any carry-over budget allocation must be within
>> Asha Hemrajani: (12:29) @Jonathan, speaking in my personal capacity,
>>the formalizing of the community involvement should not fall outside of
>>our remit now because this process that we already have in place today
>>(like we have done for FY16) is already being done and in practice - it
>>should be fairly easy to enshrine that in words. We can do that now, no
>>need to wait to WS2
>> jorge cancio (GAC Switzerland): (12:31) If it is helpful for reaching
>>sensible solution I think Asha's point is worth considering very
>> avri doria (atrt, particpant): (12:32) what about items like funding
>> avri doria (atrt, particpant): (12:32) or One Net
>> avri doria (atrt, particpant): (12:33) not that the budget is my issue.
>> Malcolm Hutty: (12:33) How would people feel about changing this to a
>>power to zero out line items for new initiatives?
>> Keith Drazek: (12:34) I can support the previous year +10% if the
>>existing revenues cover the +10%, or if the +10% is drawn from reserves.
>>I do NOT support if it is indirectly used to push for increased revenues
>>from contracted parties and registrants.
>> Martin Boyle, Nominet: (12:34) surely it is about the fact that the
>>correct process has not been followed?
>> Jordan Carter (.nz, WP1 rapporteur): (12:34) We didn't even know about
>>NetMundial being authorised or funds being committed for months after
>>decision was made. Not sure it is the best example?
>> avri doria (atrt, particpant): (12:35) true, any budget veto would
>>probably be reactive
>> Martin Boyle, Nominet: (12:36) and that bit covers Keith's point: did
>>the process include an understanding of where the revenue comes from
>> Seun Ojedeji: (12:36) @Jordan perhaps we shoud ask the board if they
>>are aware of Netmundial and the corresponding funds authorised. Its for
>>the board to keep staff accountable its for the community to ask board
>>question when staff is not accountable
>> avri doria (atrt, particpant): (12:36) and possibly even punitive.
>>it itrue, if we did freeze the budget, we can be sure that the expenses
>>we wanted covered would not be on lthe list of necessary expenses that
>>would be paid anywya. is this yet another of those pwoers we could
>> Jordan Carter (.nz, WP1 rapporteur): (12:36) Seun: they passed
>>resoltuions and didn't make them public (!).
>> Martin Boyle, Nominet: (12:36) Particularly important as a way of
>>ensuring that budget follows needs and not v-v
>> Cheryl Langdon-Orr - ALAC APRegional Member: (12:38) thanks for that
>>clarifiction and suggestion re DT0 fro CWG Jonathn...
>> Jonathan Robinson: (12:40) All.. Probably a good idea to clarify
>>whether you are referring to Jonathan R or Jonathan Z in this part of
>> Matthew Shears: (12:40) agree that htere needs to be a more iterative
>>and structrured budget engagement
>> Greg Shatan: (12:42) Avoiding the probabliity of veto is a good thing,
>>if it results from a satisfied community.. Eliminating the possibility
>>of veto is not a good thing.
>> Milton: (12:45) why not just limit the budget veto powers to IANA?
>> avri doria (atrt, particpant): (12:45) maybe we should use the spil
>>lthe board ability for a bad budget?
>> Milton: (12:46) yeah
>> Kavouss.arasteh: (12:47) We need to follow the logic as exists else
>> Milton: (12:48) Budget vetos do not necessarily sow chaos and are
>>preferable as a disciplinary method to spilling the board, but battles
>>over budget priorities could become complex.
>> Milton: (12:48) They could become a proxy for policy debate
>> Robin Gross [GNSO - NCSG]: (12:48) Jordan, thanks for the reminder to
>>keep the FUD in check.
>> Kavouss.arasteh: (12:48) We need to distinguish between
>>and Rejection. Many inconsistencies and problems will be solved through
>>reconsideration process thus rejection /Veto should have limited
>> Jim Prendergast: (12:49) In the last few years, didnt ICANN go a few
>>months without an approved budget to adjust for the IANA transition
>> What were the rules governing that interim budget? might they apply
>> Jonathan Zuck (IPC): (12:49) EXACTLY Jim P!
>> Kavouss.arasteh: (12:50) Why Veto on new initiative that was not
>>contained in the five years if the board could respond to that within
>>ceiling of the five years
>> Jordan Carter (.nz, WP1 rapporteur): (12:50) I don't know
>> Kavouss.arasteh: (12:50) We should not invent something never ever
>>practices elese where???
>> Paul Rosenzweig (Heritage): (12:52) + EL -- fewer ICANN meetings would
Kavouss.arasteh: (12:52) If we put new inititiative under Veto we will
>inject some degree of stagnation?i
> Christopher Wilkinson: (12:52) Umm ... Line vetos? Actually I think
>the support for Net Mundial was a good thing. (I do not refer to
> Kavouss.arasteh: (12:54) Moreobe covered with the mission and goals why
>it should have such a high degree of sanctionver, if the new initiative
> Jonathan Zuck (IPC): (12:54) I think it's wrorth remembering that there
>is a fairly involved process before we would ever get to a "veto" so the
>notion that having that power "out there" won't cause stagnation @Kavouss
> Jordan Carter (.nz, WP1 rapporteur): (12:54) I think line item vetos
>would be v problematic.
> Jordan Carter (.nz, WP1 rapporteur): (12:54) project budgets would be
>more sensible but also very problematic
> Jordan Carter (.nz, WP1 rapporteur): (12:56) line item could be "no
>staffing!" and that would be disturbing
> avri doria (atrt, particpant): (12:56) there is value in the theme that
>a budget veto just freezes the Board salary until the issue is resolved.
> Jordan Carter (.nz, WP1 rapporteur): (12:56) for the transcript, the
>person called Thomas two speakers before, was actually Mathieu
> Kavouss.arasteh: (12:56) The issue of new initiative to be well
> jorge cancio (GAC Switzerland): (12:57) instead of a sledgehammer we
>need a nutcracker...
> Robin Gross [GNSO - NCSG]: (12:57) I like that idea of freezing board
>salary as the first cut
> Jordan Carter (.nz, WP1 rapporteur): (12:57) A line veto on new
>initiatives is also complicated
> Jordan Carter (.nz, WP1 rapporteur): (12:57) **all** items IANA Needs
>must be in the IANA budget
> Kavouss.arasteh: (12:58) If it is within the mission of the ICANN and
>could be addressed within the ceuling of the five years why it should go
>through the veto rather than reconsideration .
> Jordan Carter (.nz, WP1 rapporteur): (12:58) even if in practice they
>are delivered by ICANN shared services
> avri doria (atrt, particpant): (12:58) causes no harm to the
>organizations its good faith and creidt, but makes the point.
> James Bladel: (12:58) +1 Robin. How about canceling sopport trael?
> Keith Drazek: (12:58) Cancelling travel support will ensure that some
>parts of the community won't ever support the veto.
> avri doria (atrt, particpant): (12:58) James, so only the rich can
> James Bladel: (12:59) Avri - how about everybody goes remote.
> Keith Drazek: (12:59) Remember this power will require community
>consensus to invoke.
> Kavouss.arasteh: (12:59) Howebver ,if it is outside the mission, even
>if it could be financed within the ceiling it may go through the veto
>from that spect that it was not within the mission of ICANN
> avri doria (atrt, particpant): (12:59) i ike that idea. though
>evidence shows that you have to do face to face at least once a year for
>remote to really work.
> Jordan Carter (.nz, WP1 rapporteur): (12:59) we have lots of positive
>ways to make sure the community has a say, right?
> avri doria (atrt, particpant): (12:59) read some studies a few years
>back when i was advocating nothing but remote.
> Greg Shatan: (13:01) +1 JZ
> Robin Gross [GNSO - NCSG]: (13:02) +1 JZ also - they are indeed NOT
>mutually exclusive paths - cooperation and a veto
> Asha Hemrajani: (13:03) @jordan, a veto is not a positive way
> Guru Acharya: (13:03) thats a lot of admissions this week - icann
>community is not representative enough to be member; remote participation
>doesnt help overcome barriers.
> Sivasubramanian M: (13:03) @Jothan The intention is not to use the
>veto and merely have the veto. How would this be articulated so as to
>ensure that veto is not even used on the negotiating table by any one
>stakeholder group, be in Government, Business or even civil society?
> Steve DelBianco [GNSO - CSG]: (13:03) The positive makes the negative
>less necessary, and the negative makes the positive more effective.
>Let's have them both
> Jordan Carter (.nz, WP1 rapporteur): (13:04) +10, Steve
> Asha Hemrajani: (13:04) @I know they are not mutually exclusive, but I
>still don't understand why veto is needed - Jonathan already said he did
>not feel the spirit of what CWG asked for was a veto on the ICANN budget
> mike chartier: (13:04) +1 steve
> Milton: (13:04) Correct, Guru, some of the arguments ICANN makes to
>save its own neck are actually undercutting the very legitimacy of the
> Keith Drazek: (13:04) Everything up to the point of a veto is positive
>and required before the ultimate negative step, which would require
>community consensus, could ever be taken.
> Greg Shatan: (13:04) The veto is needed if all else fails.
> Jordan Carter (.nz, WP1 rapporteur): (13:04) Asha in the end it's about
>the sharing of power, I think. That's why the community asked for this
>power. It's a last resort.
> Jordan Carter (.nz, WP1 rapporteur): (13:04) it's the decentralisation
>and sharing of authority, looked at one way
> Asha Hemrajani: (13:04) @Greg, but that is my point, why not ensure all
>else does not fail?
> avri doria (atrt, particpant): (13:05) i never cared about the budget
>veto until now becasue my US epxereince taught me ti was a mess. but if
>it translated into blcking board slaries until the issue was taken care
>of it, i would be very supportive.
> Greg Shatan: (13:05) Holding an organization accountable isn't all
>sunshine and flowers.
> Jordan Carter (.nz, WP1 rapporteur): (13:05) Asha: wouldn't making sure
>all else does not fail involve human perfection? :-)
> Milton: (13:05) Asha, if one side of a negotiation can ignore the
>other, it is often hard to come to a mutually acceptable agreement
> Asha Hemrajani: (13:05) @Jordan, for the annual budget, it is not about
>power, it is about common sense and ensuring continuity
> Steve DelBianco [GNSO - CSG]: (13:05) I recall ICANN has had budget
>overruns AND delays in coming up with a new budget in the past. And I
>don't recall the effects being dangerous or destructive to the global
> Milton: (13:05) it's always about power
> Greg Shatan: (13:05) Asha, I hope we can do that, but I don't know of
>any way to ensure a positive outcome.
> Jordan Carter (.nz, WP1 rapporteur): (13:06) Asha: accountability is
>always and everywhere about power - it's about who has the right to
>decide in the final question. And we've suggested a very limited, careful
>and nuanced answer to that.
> Jordan Carter (.nz, WP1 rapporteur): (13:06) As grown ups, even.
> Robin Gross [GNSO - NCSG]: (13:06) Board paternalism is part of the
>accountability problem at ICANN in general.
> Jonathan Zuck (IPC): (13:07) +1 Jordan. It's about power. That's it.
>Everything else is about preventing the need to use the power but as
>Steve put in the chat, the FACT that power is out there will make the
>process run more smoothly
> Asha Hemrajani: (13:07) @we are not talking about all the budgets - I
>repeat for those who have just joined this discussion today who may not
>be aware of the whole story - we are ok with veto of the 5 year plan and
>the PTI/IANA budget...
> Guru Acharya: (13:07) if the method to implement all community powers
>is to spill the board then does it matter if they spill the board for a
>line item or entire budget or iana budget - you could do it for all
>anyway by spilling the board.
> Robin Gross [GNSO - NCSG]: (13:07) The amount of resistance we get from
>the board certainly points to this being about power shifts.
> Asha Hemrajani: (13:08) @Robin, paternalism? Last time I checked I was
> Jonathan Zuck (IPC): (13:08) @Asha. I think that position of the board
>is understood. That said, there is still broad consensus in the community
>that the communinity that this power extend to the annual budget as well
> Asha Hemrajani: (13:08) @jonathan, I understand that AFRALO was against
>a veto also
> avri doria (atrt, particpant): (13:09) btw, i wasn't kidding about a
>compromise on this, to avoid the catastrophe whether realistc or not,
>being a hold on board salaries.
> Robin Gross [GNSO - NCSG]: (13:09) +1 Avri
> Jonathan Zuck (IPC): (13:09) @Ahsa. To be clear, we do not have
>unanimity but we do have broad consensus.
> Alan Greenberg: (13:10) But AFRALO suggested a line-item veto which I
>thinkwould be really harmful in that it would allow part of the community
>to pick on anoher with no pain on their own behalf.
> Jordan Carter (.nz, WP1 rapporteur): (13:10) but that's why we need to
>work out some process detail
> Jonathan Zuck (IPC): (13:10) +1 Alan and Jordan
> Keith Drazek: (13:11) @Avri: I could also support something along those
>lines. Also agree the devil is in the details, but I think we can find a
>way to prevent instability and chaos.
> Robin Gross [GNSO - NCSG]: (13:11) Agreed, Keith. The FUD approach
> Keith Drazek: (13:12) Or perhaps salaries and the offending line item,
>leaving non-discretionary spending untouched.
> Steve DelBianco [GNSO - CSG]: (13:12) Thanks to staff -- please show
>the hyperlink for this dicument
> Alice Jansen 2: (13:12) Link for ST discussion is -
> Jordan Carter (.nz, WP1 rapporteur): (13:12) Glad to get off that table
> Eberhard Lisse [.NA ccTLD Manager]: (13:15) If we safeguard essential
>services from veto, line item vetos get even more powerful...
> Asha Hemrajani: (13:16) @avri thanks for that...I don't see consensus
>on this point, so more discussion is good
> Alice Jansen 2: (13:16) we are on page 5
> Asha Hemrajani: (13:16) any chance staff could make the font bigger on
> Grace Abuhamad: (13:18) In the AC room, you have scroll control
> Grace Abuhamad: (13:18) We will adjust the physical room screen as well
> Asha Hemrajani: (13:19) yes I meant the physical screen, thank you Grace
> Paul Rosenzweig (Heritage) 2: (13:20) Steve is right -- the fact that
>the majority vote move is not currently on the table doesn't mean it
>won't be in the future .... and we must protect against that possibility
> James Bladel: (13:22) +1 Paul.
> Robin Gross [GNSO - NCSG]: (13:23) +1 Paul.
> Milton: (13:24) +1 Paul
> Keith Drazek: (13:25) The show of hands was just to assess whether to
>open a queue for discussion. Not yet a consensus call.
> Paul Rosenzweig (Heritage): (13:26) This rationale is a good and much
>fuller explanation of why the Bylaw amendment is needed. I would think,
>however, Steve that you should add a back reference to the NTIA
>requirements. Without the ST18 Bylaw change there will be no approval
>for the transition, I think ...
> Alice Munyua (GAC): (13:26) I think we all agree that this issue still
>needs to be discussed at the GAC level
> James Bladel: (13:26) Question: What response/determination are we
>waiting for from the GAC?
> Keith Drazek: (13:27) Other parts of the community commented and
>strongly supported inclusion.
> Paul Rosenzweig (Heritage): (13:27) +1 James -- and WHEN will they
>finally speak (or advise us that they don't have consensus to speak)???
> Alice Munyua (GAC): (13:27) the issue is whether or not the rationale
>should be included as it is presented as part of the CCWG document
> Paul Rosenzweig (Heritage): (13:27) Of course we should include a
>rationale -- why would we make a change without explaining it??
> Alice Munyua (GAC): (13:28) and of course we should have a rationale.
> Paul Rosenzweig (Heritage): (13:28) +1 Alice -- I was too quick ....
> Paul Rosenzweig (Heritage): (13:29) Thomas --- Is it worth setting an
>expectation as to WHEN you expect GAC feedback?
> Kavouss.arasteh: (13:30) PLS DEFER DISCUSSION ON ANY WAY TO PROCEED
>UNTIL GAC EXAMINE THE MATTER CAREFULLY
> James Bladel: (13:31) But do we have an ETA on the GAC's response?
> Guru Acharya: (13:31) i dont understand - what if gac claims they are
>determining consensus by voting instead of by rough.... it seems wierd to
>create a dichotomy between voting and consensus
> Megan Richards European Commission: (13:34) rationale is certainly
>improved but it might be useful for all to see what legal advisors say
>about its implications. my reading is that only refusal of GAC advice
>requires mutual discussion with ICANN board and only when based on
>consensus. in principle nothing in the wording says that GAC advice must
>be based on consensus, only that GAC consensus advice which is refused
>must go to negotiation. if
> Steve DelBianco [GNSO - CSG]: (13:36) Exactly, Megan. We are NOT
>attempting to tell the GAC how to make its decisions
> Alice Munyua (GAC): (13:36) +1 Megan
> Robin Gross [GNSO - NCSG]: (13:37) I guess this is another case where
>we just go in circles.
> Alice Jansen: (13:41) Human Rights analysis -
>C2.pdf?version=1&modificationDate=1444739018000&api=v2 - see p8
> avri doria (atrt, particpant): (13:42) number 3 should be civil &
> James Bladel: (13:42) What does "respect" mean in this context?
> Milton: (13:42) It should be Convenant and CIVIL and Political Rights
> avri doria (atrt, particpant): (13:42) civil & political not cultural &
> Roelof Meijer (SIDN, ccNSO): (13:42) @Steve: no, we aren't. But we are
>trying to tell the ICANN board how to deal with (the different types of)
>GAC advice, aren't we? And I know I would not be happy with the GAC
>trying totell the board how to deal with ccNSO advice...
> Niels ten Oever: (13:42) @james 'Respect' as in opposition to 'Protect'
> avri doria (atrt, particpant): (13:42) it is wrong in both 3 & 4
> Niels ten Oever: (13:43) @james So it's not an obligation to enforce
> Niels ten Oever: (13:43) <comment> we achieved consensus in the WP4 on
>a definition - this was a summary of the comments.
> James Bladel: (13:43) @Niels - not clear how ICANN would/could enforce,
>even if they watned to.
> Tatiana Tropina: (13:43) +1 to Niels, it was the idea behind suggesting
>the language (protect vs. respect)
> Keith Drazek: (13:43) I think "respect" means "live by" as opposed to
>"protect" which would have a more external and activist meaning. But I'm
> Niels ten Oever: (13:43) @James - that's why they also should not do
> Milton: (13:43) i thought we already had consensus that HR was WS1
> Niels ten Oever: (13:44) @James - that's why it is 'respect'
> David McAuley (RySG): (13:44) agree with Keith and that is how I saw it
> Tatiana Tropina: (13:44) @Milton, a couple of comments were against WS1
>- we had to address them anyway
> James Bladel: (13:44) If we have to choose, then Option #1 is the most
>appropriate langauge for this purpose.
> Wolfgang: (13:45) My understanding of "respect"means that ICANN has to
>check whether a decision by its board violates existing human rights.
> Athina Fragkouli (ASO): (13:46) I agree with this suggestion
> Matthew Shears: (13:46) + 1 james
> Niels ten Oever: (13:46) +1 James
> avri doria (atrt, particpant): (13:48) we talked about. there is no
>applicable international law on human rights for corproations.
> Bruce Tonkin: (13:48) In our articles of incorporation we have:
> Bruce Tonkin: (13:48) The Corporation shall operate for the benefit of
>the Internet community as a whole, carrying out its activities in
>conformity with relevant principles of international law and applicable
>international conventions and local law and
> Robin Gross [GNSO - NCSG]: (13:48) agree tht option 1 is most
> avri doria (atrt, particpant): (13:48) no, there is now applciable HR
>law for corproations
> avri doria (atrt, particpant): (13:49) is no applicable.
> Steve DelBianco [GNSO - CSG]: (13:49) @Bruce -- option 1 is consistent
>with the Artciel you cited. Yet it is more specific by mentioning human
> Bruce Tonkin: (13:50) Ah OK - @Acri I interpreted Article 4 to be that
>we use the principles of international law in making our policy
>decisions. Not intenrational laws apply to corporations - but we have
>explicity recognixed it in the articles of incorporation.
> Niels ten Oever: (13:50) @Tijani - that is why it says within scope and
> Tatiana Tropina: (13:50) I think mentioning "within it's mission" is
> Mary Uduma: (13:50) +1 Tijani
> Wolfgang: (13:50) @ Avri This depends from the case. I would prefer to
>develop a procedure via concrete cases.
> Bruce Tonkin: (13:51) This relatesd to our core values - and we shoudl
>use those values in decision making.
> Tatiana Tropina: (13:51) WP4 was trying to narrow nd resprict as much
>as possible to avoid any controvercies
> Matthew Shears: (13:52) I also think that some would say that
>"principles of international law and applicable international
>conventions" do not necessarily include human rights and that it is
>better to explcitely mention human rights so as to ensure that they are
>seen as rlevant
> Mark Carvell GAC - UK Govt: (13:52) Reference to guidign principles
>intor]duces some needed
> Robin Gross [GNSO - NCSG]: (13:52) Agree, Matt.
> Mary Uduma: (13:53) The Language in the bylaw should be specific and
>referr to only Names and Numbers as mentioned by Tijani
> Mark Carvell GAC - UK Govt: (13:53) ..(contnued)..some needed criteria
>or standards to adhere this to a non-state entity like ICANN.
> avri doria (atrt, particpant): (13:53) yes Mark, but getting in the
>Guiding Principles is the WS2, becasue they are complicated in that they
>are guidelines for ways to actually do it.
> Bruce Tonkin: (13:54) SDo do we just have a list of example
>International laws and conventions that we may want to take into account.
> Wolfgang: (13:54) @ Matthew: The language of Article 4 includes de
>facto all international conventions: Trademark & Copyright, Human Rights
>, seecurity etc.
> Mary Uduma: (13:55) If is vaguely stated, it could be interpreted
> Greg Shatan: (13:55) The intention is for the WP to create a relatively
>short rationale and framework document that will clarify many of these
> Eberhard Lisse [.NA ccTLD Manager]: (13:55)
> Eberhard Lisse [.NA ccTLD Manager]: (13:55) Human rights entail both
>rights and obligations. States assume obligations and duties under
>international law to respect, to protect and to fulfil human rights. The
>obligation to respect means that States must refrain from interfering
>with or curtailing the enjoyment of human rights. The obligation to
>protect requires States to protect individuals and groups against human
>rights abuses. The obligation to fulfil means that States must take
>positive action to facilitate the enjoyment of basic human rights. At the
>individual level, while we are entitled our human rights, we should also
>respect the human rights of others
> Bruce Tonkin: (13:56) IN the new gTLD guidebook we explicitly
> Bruce Tonkin: (13:56) The Universal Declaration of Human Rights
>(UDHR)Module 3Dispute Resolution ProceduresApplicant Guidebook | version
>2012-06-043-21€ The International Covenant on Civil and PoliticalRights
>(ICCPR)€ The Convention on the Elimination of All Forms ofDiscrimination
>Against Women (CEDAW)€ The International Convention on the Elimination
>ofAll Forms of Racial Discrimination€ Declaration on the Elimination of
>Violence againstWomen€ The International Covenant on Economic, Social,and
>Cultural Rights€ The Convention against Torture and Other Cruel,Inhuman,
>or Degrading Treatment or Punishment€ The International Convention on the
>Protection ofthe Rights of all Migrant Workers and Members oftheir
>Families€ Slavery Convention€ Convention on the Prevention and Punishment
>ofthe Crime of Genocide€ Convention on the Rights of the Child
> Eberhard Lisse [.NA ccTLD Manager]: (13:56) So "respect" human rights
>is defined somewhere :-)-O
> Eberhard Lisse [.NA ccTLD Manager]: (13:57) The obligation to respect
>means that States must refrain from interfering with or curtailing the
>enjoyment of human rights.
> Bruce Tonkin: (13:57) Not sure why we need to list just one
>international convention/treaty. I would rather tan during the policy
>development process that members of the communiyt identify an issue that
>is not conceistent with intenrational law - then tey should raise that as
>part of the policy process.
> Eberhard Lisse [.NA ccTLD Manager]: (13:57) Examples :-)-O
> James Bladel: (13:57) +1 Alan.
> Matthew Shears: (13:57) @ Wolfgang - yes but when you use the term
>"relevant" it is open to interpretation
> Niels ten Oever: (13:57) @Alan - This has been mentioned before. Would
>you have an example?
> Mary Uduma: (13:57) + 1 Alan
> Eberhard Lisse [.NA ccTLD Manager]: (13:58) My point was we don't need
>to define what "respect" human rights means.
> David McAuley (RySG): (13:58) My sense of the WP4 work is that we
>agreed ICANN would be guided by a high level ³respect² commitment but
>would not become burdened with HR claims and perhaps we need another
>sentence to make that clear.
> Bruce Tonkin: (13:59) @Avri it sounds like we need to clarify the
>language in the articles of association. I and most of the Board
>memebrs I think - interpret them differentlyu. You
> Bruce Tonkin: (14:00) ie we think that we shoudl take those principels
>into account in our decision making. Your comment was that legally a
>corporation doesn't need to apply those principles as we are not a
>gobernment and not a signattory to an international convention. THat
>doesn't stop us from taking them into account in our deicsion making -
>which is how I interpreted the artivcles of association
> James Bladel: (14:00) Refinement, yes. But I think #1 is closest.
> David McAuley (RySG): (14:00) agreed Leon
> Robin Gross [GNSO - NCSG]: (14:01) refinment, not revision
> Matthew Shears: (14:01) yes, lets refine option 1
> Mark Carvell GAC - UK Govt: (14:01) Maybe for rationale: or footnote:
>the UN Guiding Principles are an authoritative global reference point for
>business and human rights. Agree this should not be watered down.
> Greg Shatan: (14:02) Leon, what about the other options for
> Nathalie Coupet: (14:29) Hello, Matthieu
> Megan Richards European Commission: (14:29) thanks Thomas !!
> Mathieu Weill, ccNSO, co-chair: (14:30) Hello
> Steve DelBianco [GNSO - CSG]: (14:36) These areas of divergence seem
>relatively minor. Perhaps we are very close to having a consensus for
>how this community power would work
> James Gannon: (14:37) I read it similrarly Steve
> James Gannon: (14:37) I think we might be closer than we think
> Steve DelBianco [GNSO - CSG]: (14:42) Well, let's not get hung up on 75
>vs 80% threshhold. We are seeking a decision - making process that aims
>for consensus among AC/SOs. That's the goal of breakout led by Jonathan
> Jordan Carter (.nz, WP1 rapporteur): (14:42) the comment analysis here
>doesn't get me the sense there are major areas of contention here
> Jordan Carter (.nz, WP1 rapporteur): (14:42) they all relate instead to
>the decision-making methods
> Jordan Carter (.nz, WP1 rapporteur): (14:42) which are being decided
> Malcolm Hutty: (14:43) The only significantly divergent position is
>making recall subject to standards of misbehaviour, because that
>introduces the question of who decides whether the conditions have been
> James Gannon: (14:43) Does that not allow an AC or SO block the board
>spill after the fact by inaction? Or is that examined (Sorry catching up)
> Robin Gross [GNSO - NCSG]: (14:43) yes, Malcolm, but it seems the
>consensus is to NOT restrict the board removal rights.
> Robin Gross [GNSO - NCSG]: (14:44) Agree with Jordan.
> Jordan Carter (.nz, WP1 rapporteur): (14:46) James, no, don't think so
>- if by that you mean the timeframe
> James Gannon: (14:47) Ok thanks Jordan
> Jordan Carter (.nz, WP1 rapporteur): (14:47) sorry, James, I was wrong,
>it sort of does in the sense that if an SO or AC doesnt' appoint
>replacements, it might fall over
> Jordan Carter (.nz, WP1 rapporteur): (14:48) this might need to look
> Robin Gross [GNSO - NCSG]: (14:50) But Alan, what if someone is defamed
>in the process? Should they really have to forego their right to have
>that adjudicated and possibly clear their name?
> James Gannon: (14:51) Yeah that was my concern, but if we have a
>process that if a body does not appoint its interim director in time that
>there is a contingency there then we are ok
> James Gannon: (14:51) ^^ ref Jordan
> Steve DelBianco [GNSO - CSG]: (14:51) The reason for board spill might
>be as plain as this: the board's interpretation of "fiduciary duty to
>the corporation" differs from the consenus view of the community about
>how to interpret that fiduciary duty.
> Jordan Carter (.nz, WP1 rapporteur): (14:52) someone could only be
>defamed by statements made in the context of a community discussion about
>removal, not I guess by the act of the process itself
> Jordan Carter (.nz, WP1 rapporteur): (14:52) and I don't know if we
>would want to provide indemnities for defamation in that situation, it
>might encourage bad behaviour
> Alice Jansen: (14:52) WS2 paper -
> James Gannon: (14:52) Which would be a seaparte issue to the spill
> Robin Gross [GNSO - NCSG]: (14:53) I don't want to have a situation
>where folks defame at will because they can't be punished. That sounds
> Jordan Carter (.nz, WP1 rapporteur): (14:53) +1
> Alan Greenberg: (14:55) @Robin, at the same time we are now demanding a
>"rationale" and implications of lawsuits could imply we never use the
>power. Fine with me, actually, but I thought we were building the process
>so it *could* be used.
> Greg Shatan: (14:55) Indemnification would only protect individuals
>acting in their role as AC/SO representatives. I think it could be
> Robin Gross [GNSO - NCSG]: (14:56) we need to find a balance between
>not encouraging defamation and not encouraging defamation lawsuits.
> Alan Greenberg: (14:57) Simply being removed might cause a claim of
>their reputation and therefore employability being harmed.
> Robin Gross [GNSO - NCSG]: (14:58) I'm concerned about the suggestion
>to move these transparency issues out of WS2
> Robin Gross [GNSO - NCSG]: (14:58) I strongly object to moving
>transparency and whistleblower out of WS2
> Greg Shatan: (14:59) Defamation is a false and unprivileged statement
>of fact that is harmful to someone's reputation, and published "with
>fault," meaning as a result of negligence or malice. Statements of
>opinion can't be defamatory (unless they clearly imply unstated facts).
> Mathieu Weill, ccNSO, co-chair: (14:59) Transparency is proposed to
>remain in WS2.
> Greg Shatan: (14:59) So it's not just any statement that could harm
> Robin Gross [GNSO - NCSG]: (14:59) I see transparency about
>interactions with govt out of WS2 4a.
> Robin Gross [GNSO - NCSG]: (15:00) 4b rather
> Alan Greenberg: (15:01) Greg, is there a new law in the US prohibiting
>lawsuits that might in fact have little merit?
> Steve DelBianco [GNSO - CSG]: (15:07) on the email list, I just
>circulated a list of Transparency improvements that are part of our 2nd
>draft proposal, work stream 1
> Greg Shatan: (15:09) Alan, Rule 11 of FRCP and its equivalents would
>sanction frivoulous or bad faith lawsuits. That's been around a fairly
>long time. A lawsuit with little merit could be filed, but it won't last
>long. Probably would not survive a motion to dismiss for failure to
>state a claim. But as a general matter, anyone has the right to file a
>lawsuit as long as its nonfrivoulous and not in bad faith.
> Greg Shatan: (15:16) I seem to recall a bottom-up process by which the
>URS was developed.
> James Gannon: (15:18) (Following on transcript) Yes it was bottom up
>but never consensus policy outside of new gTLDS
> Keith Drazek: (15:20) Contracted parties should be able to voluntarily
>incorporate terms into negotiated or renegotiated contracts. Consensus
>policies from PDPs are terms imposed on contracted parties. Let's be sure
>to recognize the difference, while reasonably questioning how to define
> Greg Shatan: (15:21) So, if these renewals were voluntarily entered
>into by these registries, then there's no issue....
> Olga Cavalli - GAC Argentina: (15:24) Leon Pedro is in the que but he
>has no connectio to adobie
> Olga Cavalli - GAC Argentina: (15:24) I can rise hand for him
> Pedro Ivo Silva [GAC Brasil]: (15:25) I am back. Thanks Olga ;-)
> Kavouss.arasteh: (15:25) For the first sentence on which I have
>commented ,I suggest the followin
> Kavouss.arasteh: (15:30) to be edrafted
> Steve DelBianco [GNSO - CSG]: (15:31) ICANN has implemented "consensus
>policies" per Specification 1 approx 10 times in its history. Policies
>to restrict domain tasting, for example.
> Steve DelBianco [GNSO - CSG]: (15:32) here they are:
> avri doria: (15:34) how many of these teams are we creating and how
>many places are people going to have be in at a time? are these the
>WP1-n teams we have now or a new slice and dice?
> Alan Greenberg: (15:34) My hand was ignored, but I wanted to point out
>that it is not clear (although Becky disagrees) whether the New gTLD PDP
>resulted in "Consensus Policy" as defined in the current Spec 1.
> avri doria: (15:35) i ask becasue these little groups seem to be
>multiplying like bunnies.
> Thomas Rickert, CCWG Co-Chair: (15:35) Alan, we had connectivity
>issues. I apologize.
> jorge cancio (GAC Switzerland): (15:36) I feel we should discuss these
>issues, at least at level of where there are substantial concerns, at the
> Alan Greenberg: (15:40) Some of us have actively participates in
>multiple WSs. Being in several breakout sessions tomorrow will be
>difficult. As is finding the time to write detailed e-mails on eash
> Robin Gross [GNSO - NCSG]: (15:40) I'm worried we won't have enough
>people here (at least from my own SG) to cover all the break-outs.
>Presumably, I can only go to one of them, and I'm keen to follow several.
> Matthew Shears: (15:40) can we stagger them in the day?
> James Gannon: (15:41) I agree Robin
> James Gannon: (15:41) We need to be inclusive on the break out strategy
> jorge cancio (GAC Switzerland): (15:44) this presentation is really,
>very difficult to follow...
> Matthew Shears: (15:50) if we insist on "private sector led" we could
>just say "private sector led involving the full partipcaton of ....."
> Steve DelBianco [GNSO - CSG]: (15:57) Agree, Milton. Bylaws affect
>actions of the corporation, but do not constrain the kind of advice given
>by GAC or SSAC, etc.
> Robin Gross [GNSO - NCSG]: (15:57) Completely agree, Milton.
> jorge cancio (GAC Switzerland): (15:58) To clarify: That language is an
>addition, if you compare it to current Bylaws. And after the first public
>comment it was clear that there was no consensus supporting it. Apart
>from that ICANN is bound by its Bylaws, hence whatever advice from any AC
>(including the GAC) which is outside or contrary to the mission, has no
>bearing on ICANN.
> Keith Drazek: (15:58) +1 Milton
> John Curran: (15:58) The scope ofwould be clearer, Milton, if
> Robin Gross [GNSO - NCSG]: (15:59) I do not support WSIS language on
>mulsti-stakeholderism. ICANN has been private sector since it was
>created and we aren't changing that. We can't use this as an opportunity
>to change the meaning of multi-stakeholderism.
> John Curran: (15:59) the definition of SSAc, GAC, etc. were distinction
>from ICANN's bylaws
> jorge cancio (GAC Switzerland): (16:00) Either we aff the qualification
>of their input having to be within ICANN Mission etc to all SO/AC, one by
>one, or either we state it (as is done now) generally and applicable to
> Milton Mueller: (16:00) Agree with Robin - "non state actors" or
>nonstate institutions would be better than "private sector" but the whole
>point of governance institutions like ICANN is that they are not
> Robin Gross [GNSO - NCSG]: (16:00) Agree with Greg. Tunis Agenda and
>WSIS were developed in a UN environment. This is not a UN environment
>and so not appropriate to ape that language.
> Olga Cavalli - GAC Argentina: (16:01) Robin, Net Mundial was not UN
>meeting and developed a similar definition
> Pedro Ivo Silva [GAC Brasil]: (16:02) +1 Olga. Netmundial was a genuine
>multistakeholder bottomup process.
> Grace Abuhamad: (16:02) Apologies -- the scribe pod is down. We are
>working to reso;ve
> Lori Schulman: (16:02) The root of the term goes to the "privitization"
>of Internet functions away from the U.S. Government under Bill Clinton's
>administration. Private = not part of a US federal agency.
> Milton Mueller: (16:02) Olga: Netemundial discarded the Tunis Agenda
> Milton Mueller: (16:02) It talked about equal roles. The WSIS Tunis
>Agenda was a state-centric definition of roles, written by states, for
>states, and relegataing non-state actors to a subordinate role.
> Olga Cavalli - GAC Argentina: (16:02) @ Milton, sorry my English
>islimited, can you clarify "discarded"?
> Milton Mueller: (16:03) changed, not affirmed,
> Milton Mueller: (16:03) The WSIS roles were not upheld by the
> Olga Cavalli - GAC Argentina: (16:03) thanks, any way the definition of
>multistakeholdrism in Net Mundial does not give a special role to the
> Milton Mueller: (16:04) true.
> Milton Mueller: (16:04) the WSIS deiniftion does however give a special
>role to governemnts
> Olga Cavalli - GAC Argentina: (16:05) ok so let use Net Mundial
> Brenda Brewer2: (16:06) Working on bringing the Scribe screen back into
>view. One moment please.
> Cheryl Langdon-Orr - ALAC APRegional Member: (16:06) thx Brenda I miss
> Mark McFadden: (16:07) +1 to Cheryl - I miss it too!
> Robin Gross [GNSO - NCSG]: (16:09) I think the standard MUST be de
>novo. One of the biggest concerns with IRP today is the 2013 change in
>the std to an abuse std.
> Cheryl Langdon-Orr - ALAC APRegional Member: (16:11) agree Robin
> nigel hickson: (16:11) Re "multistakholder" this was agree at NeTmudial
>" Multistakeholder: Internet governance should be built on democratic,
>multistakeholder processes, ensuring the meaningful and accountable
>participation of all stakeholders, including governments, the private
>sector, civil society, the technical community, the academic community
>and users.The respective roles and responsibilities of stakeholders
>should be interpreted in a flexible manner with reference to the issue
> Milton Mueller: (16:12) Exactly. the whole idea that governments are in
>charge of public policy has been discarded (ended, not repeated) in this
> Milton Mueller: (16:13) Roles and repsonsibilities are flexible
> jorge cancio (GAC Switzerland): (16:14) Could you elaborate, Milton?
>how do you infer that?
> Milton Mueller: (16:15) It is not an inference. It is right there in
>the language. WSIS says different stakholders have fixed, defined roles.
>Netmundial says the roles and responsibilities are flexible and depend on
> jorge cancio (GAC Switzerland): (16:16) flexibility does not mean that
>the underlying role disappears... it's a non sequitur
> Matthew Shears: (16:17) NM language is a valuable evoltuion of the WSIS
> jorge cancio (GAC Switzerland): (16:18) +1 to Mathew - we are evolving,
>that's it :-)
> Wolfgang: (16:18) The original "division of labour" ges back to the
>Geneva Declaration (2003) which gave governments a monopoly over public
>policy making on Internet related issues. This was "undermined" by the
>WGIG definition (Tunis Agenda) which speaks about "sharing of decision
>making processes" among all stakeholders, but gives governments also "a
>respective role" (ope for interpretation). Net undial has ushed this one
>step further. ICANN should not copy this language but shoould use it as a
>source of inspiration to moderze its language and bring it in line with
>the general understanding (of the 2015s) of MSM.
> Milton Mueller: (16:18) Jorge; Yes, it does mean that the fixed,
>pre-defined role disappears.
> Milton Mueller: (16:19) That is exactly what it means, and that is
>exactly why it was proposed and agreed at the Netmundial meeting
> Robin Gross [GNSO - NCSG]: (16:19) I'm not sure we want to require
>participation in PDP before one can file an IRP. What if they didn't
>know about the issue at the time of the PDP? That seems too restrictive
>to those outside the inner ICANN community.
> Rinalia Abdul Rahim: (16:19) +1 Robin
> Becky Burr: (16:19) Robin - we spent a long time discussing htis point
>and i think most folks agree with you
> Kavouss.arasteh: (16:19) Wolfgang,
> Julia Wolman, GAC Denmark: (16:19) Important point Robin
> jorge cancio (GAC Switzerland): (16:20) Dear Milton: that is just your
>inference. It has no basis in the language, as far as I see. That roles
>are flexible, still means that the roles are there, which is just natural
> Kavouss.arasteh: (16:20) We should specifically read and referred to
>applicable paragraphs of WSIS
> Becky Burr: (16:20) it really is an abuse of process issues, and i
>would rather address that directly (e.g., frivolous, vexatious claims)
>rather than participating in PDP
> Robin Gross [GNSO - NCSG]: (16:20) exactly, Becky.
> Milton Mueller: (16:21) It is not an inference. If you want to deny
>that words mean anything, feel free, it is your right. But you cannot
>tell me that those words uphold the same idea as the original Tunis
>Agenda, and it's clear that most people here agree with me
> Eberhard Lisse [.NA ccTLD Manager]: (16:21) How can someone mark
>something as green when there is opposition????
> Robin Gross [GNSO - NCSG]: (16:21) Jorge, I don't understand how you
>can say it is an inference. The exact words are there in NetMundial.
> Eberhard Lisse [.NA ccTLD Manager]: (16:21) It's not Tthe Thomas
> Eberhard Lisse [.NA ccTLD Manager]: (16:22) It's not the Thomas
> jorge cancio (GAC Switzerland): (16:22) Who says it means the same?
>flexible acts as a qualifier of roles... there is evolution, but it does
>not mean that roles disappear - that is just a desire, perhaps
> John Curran: (16:23) Jorge - note that the flexible
>responsibilities/roles are with respect to multistakeholder activities,
>and does preclude participants having specific and/or exclusive roles in
> Olga Cavalli - GAC Argentina: (16:23) +1 to Jorge´s comment. And
>whichever the definition, there should not be a specific relevance given
>to the private sector
> Robin Gross [GNSO - NCSG]: (16:24) The NetMundial language says all
>groups develop those policies. That is a considerable change from WSIS
> David McAuley (RySG): (16:24) well said Becky
> jorge cancio (GAC Switzerland): (16:24) The point, for me anyway, is
>that we reflect what we do here, which is a specific way of living a
>multistakeholder model, where we all cooperate
> Milton Mueller: (16:25) But the Netmundial document does not reference
>the WSIS Tunis roles at all. So it is not a "qualifier" of those roles,
>it is a statement that they are no longer the main reference point, the
>roles are flexible. It's pretty clear that you are the one twisting
>yourself into apretzel in an attempt to get the words say what you want
>them to say.
> Sivasubramanian M: (16:25) please share the link to the color coded doc.
> Pedro Ivo Silva [GAC Brasil]: (16:25) Agree with Mathew that NM should
>be seen as an evolution with respect to WSIS, which means that it does
>build on the Tunis Agenda and does not reject it
> Mike Silber: (16:26)
> Sivasubramanian M: (16:26) Thank you Mike
> Wolfgang: (16:27) @ Olga & Jorge. A key language is "sharing decision
>making" from the Defintion (Tuis Agenda). That means whatever your role
>is if it comes to decison taking you have to "share" it with other
>stekholders. Sharing is not defined. It can have different forms
>(consultations, hearings, splitting of votes etc.). Details have to be
>experimented in the future processes. Net Mundial was a step forward into
>uncharted territory More wiill have to come.
> Eberhard Lisse [.NA ccTLD Manager]: (16:28) I con sider Thomas
>RIckert's conduct an attempt at manipulating the process.
> Eberhard Lisse [.NA ccTLD Manager]: (16:28) this is in violation of:
> Eberhard Lisse [.NA ccTLD Manager]: (16:28) Those who take part in
>ICANN multi-stakeholder process, including Board, staff and all those
>involved inSupporting Organization and Advisory Committee councils,
>undertake to [...] Act in a reasonable, objective and informed manner
>when participating in policy development and decision-making processes.
>This includes regularly attending all scheduled meetings and exercising
>INDEPENDENT judgment based SOLELY on what is in the OVERALL BEST interest
>of Internet users and the stability and security of the Internet's system
>of unique identifiers, IRRESPECTIVE of personal interests and the
>interests of the entity to which an individual might owe their
> Milton Mueller: (16:28) It is sad to see people use a double standard:
>when GAC wants to get involved in something they say "equal footing" but
>when it comes to policy development you want to retain the archaic WSIS
>role definitions which privilege governments as having a monopoly on
>public policy development
> Robin Gross [GNSO - NCSG]: (16:28) Equal Plus?
> Milton Mueller: (16:29) It's like Animal Farm (Orwell) all animals are
>equal but some are more equal than others
> jorge cancio (GAC Switzerland): (16:30) @wolfgang: decision-sharing is
>a very swiss thing ;-)
> Sivasubramanian M: (16:31) Milton, Governments are slow to embrace the
>ms model, and it might take a generation for governments to give up a
>portion on their "monopoly" over pubic policy development.
> Mark Carvell GAC - UK Govt: (16:32) Agree the CF should be predictable
>process with precise procedures and timelines.
> Sivasubramanian M: (16:32) The other stakeholders can't possibly take
>governments head on. Plenty of coaxing is required to get them to
>involve the stakeholders in the actual policy process.
> Milton Mueller: (16:32) I agree, Sivasubramanian
> Sivasubramanian M: (16:33) We could do that by "capturing" Governments
> Robin Gross [GNSO - NCSG]: (16:33) :-)
> Robin Gross [GNSO - NCSG]: (16:33) I like that concept, Siva. ;-)
> Milton Mueller: (16:34) a lot of interest groups are already doing that
> Sivasubramanian M: (16:34) Want to join me in a conspiracy? We will
> Panus: (16:34) I thnk the community forum should be mandatory somehow
>if we have some idea what will happen on the yearly basis such as public
>comments on budgeting etc.
> John Curran: (16:34) Governments already have the unique ability to
>engage in public policy rule making in their own environments, they do
>need an unique role in multistakeholder policy development...
> John Curran: (16:35) do NOT need
> Sivasubramanian M: (16:35) John, Yes, some govenments - only some
>governments - have the ability to engage and do engage, to some extent.
> Matthew Shears: (16:36) @ Panus - i think it is a key piece
>("mandatory" ) of the process of getting to the decision-taking phase.
>it might be difficutl to set a particular schedule as it is unclear when
>it will be triggered
> Robin Gross [GNSO - NCSG]: (16:36) may we please see the langauge on
> Sivasubramanian M: (16:36) Other Governments could begin, but in a
>reverse order, start from within the ICANN and IGF ms processes, and then
>take it forward in their national environments for general public policy
> Sivasubramanian M: (16:36) Which makes it very very important for ICANN
>to prove the success of this model
> Alice Jansen: (16:36)
>NAL-3August.pdf?version=1&modificationDate=1438621330000&api=v2 - p 112
> Robin Gross [GNSO - NCSG]: (16:37) REALLY need to see this text
> Alice Jansen: (16:38) ST text -
> Panus: (16:38) @Matthew Sheares: Thanks for your clarification on this.
> Greg Shatan: (16:44) I will give this further consideration. I assume
>this document is in our reading list?
> Steve DelBianco [GNSO - CSG]: (16:44) thanks alice, for posting the
>link, ST 29 and 20 are on p 3
> Greg Shatan: (16:45) Thanks for the link. Is there a Word version as
> Greg Shatan: (16:48) I hope that our "measures" don't prevent ICANN
>from enforcing Section 3.18.
> Greg Shatan: (16:49) Subject to reasonable expectations on the part of
>all those involved....
> Malcolm Hutty: (16:52) Can you provide a link to Section 3.8 please/
> Desiree Miloshevic: (16:55) Support Robin's point of being careful with
>this text - no extension of icann's mandate into content control
> James Gannon [GNSO-NCSG]: (16:56) Yes strongly support Desireee and
> Keith Drazek: (16:59) +1 Desiree and Robin and James
> Eberhard Lisse [.NA ccTLD Manager]: (17:00) What difference is there
>really, between Content Control and forcing URS on pre-existing
> Milton Mueller: (17:00) Are we not allowing comment?
> Stephen Deerhake (.as): (17:01) Eberhard: No difference that I can
> Greg Shatan: (17:01) Who watches those who watch the watchers?
> Mathieu Weill, ccNSO, co-chair: (17:03) the ones watching the watchers
>are those that the watchers are watching Greg. Obvious !
> Jonathan Zuck (IPC): (17:04) Quis custodiet ipsos custodes?
> Greg Shatan: (17:05) Mathieu, so everyone watches everyone else?
> Mathieu Weill, ccNSO, co-chair: (17:05) Yes ;-) Just like now
> jorge cancio (GAC Switzerland): (17:05) infinite regression has its
>limits... the question is to find the right balance
> Mathieu Weill, ccNSO, co-chair: (17:05) I can see you BTW
> Robin Gross [GNSO - NCSG]: (17:06) I share James' concerns on this
> Stephen Deerhake (.as): (17:06) Greg: GHCQ watches the PMs; the PM's
>watch GHCQ. That why the GHCQ HQ building is circular.
> Nathalie Coupet: (17:06) Audio is intermittent
> James Gannon [GNSO-NCSG]: (17:08) Agreed Jorge 100%
> Athina Fragkouli (ASO): (17:09) Agree with Mathieu's suggestion
> Seun Ojedeji: (17:12) @Milton But going to a member model(for example)
>is not seen as reform of ICANN
> Robin Gross [GNSO - NCSG]: (17:13) I agree with Milton. Much of this
>is new material and we don't support it.
> Robin Gross [GNSO - NCSG]: (17:13) "thank you for your comments, but
>I'm not taking them on board" Yikes!
> Matthew Shears: (17:13) we cannot load up WS1
> Sivasubramanian M: (17:14) Disagree with Milton. The on going
>processes for AC SO improvements are not enough. We need to look at AC SO
>accountability more comprehensively.
> Jordan Carter (.nz, WP1 rapporteur): (17:14) Internet Governance by
> Robin Gross [GNSO - NCSG]: (17:14) but not in WS1, Siva. that is the
> Sivasubramanian M: (17:14) Work Stream 2, perhpas, but it is in way a
> Alan Greenberg: (17:14) WS-Nya nya ne nya na...
> Sivasubramanian M: (17:15) This need not be a preculuded item from WS
>1, but could be examined in greater depth in WS2
> Leon Sanchez (Co-chair ALAC): (17:15) @Robin Milton's comments are
>already taken into account, we said this will be fleshed out as WS2
> Sivasubramanian M: (17:15) Alan, please translate
> James Gannon [GNSO-NCSG]: (17:15) IF we put it in WS1 we wont meet the
> Robin Gross [GNSO - NCSG]: (17:15) Leon, so you are saying this WS2 -
>ok. I would be ok with that.
> Asha Hemrajani: (17:15) +1 Greg
> Keith Drazek: (17:16) I have no problem with SO/AC Accountability as a
>WS-2 requirement. But it is clearly not a WS-1 requirement under the CCWG
> Matthew Shears: (17:16) + 1 Keith
> Sivasubramanian M: (17:17) Should WS1 preclude this item as a rule?
>Simply because it is not under the Charter? It is an important
>component, at least very basic discussions could happen in WS1, some
>mention could be made about AC SO accountability in the WS 1 phase
> Steve DelBianco [GNSO - CSG]: (17:18) Please see Stress Test 33,
>requested by NTIA: Participants in an AC/SO attempt to capture an AC/SO
>by arranging over-representation in a working group, in electing
>officers, or voting on a decision. (p.116 of our 2nd draft report)
> Sivasubramanian M: (17:18) only to be examined in much greater depth in
> Seun Ojedeji: (17:18) @James I agree with that view of not putting it
>in WS1 however that its a none-issue is not something that we should
>uphold. The entire accountability of the organisation is work in progress
> James Gannon [GNSO-NCSG]: (17:18) Agreed Seun
> Matthew Shears: (17:18) @ Seun - agree these are important issues
> Greg Shatan: (17:18) I'm not suggesting we make new accountabiliity
>measures part of WS1. I'm suggesting we stand up for ourselves and say
>that we are accountable organizations and an accountable community, and
>that we have a good story to tell today for each of our organizations.
>That's not to say we can't get any better.
> Robin Gross [GNSO - NCSG]: (17:19) True 'dat, Greg.
> Seun Ojedeji: (17:19) That said, personally I am concerned that we are
>putting everything to WS2 which makes it look like this particular CCWG
>will last till eternity.
> jorge cancio (GAC Switzerland): (17:20) @Steve: very useful points!
> Matthew Shears: (17:20) +1 Greg
> Alice Jansen: (17:22) Scorecard link
> Alice Jansen: (17:22) Go to sheet 2
> Alice Jansen: (17:22) Progress tracking
> Robin Gross [GNSO - NCSG]: (17:25) can you clarify wht is in scope for
>"decision-making" and "enforcement model" sessions please?
> Robin Gross [GNSO - NCSG]: (17:26) I'm not entirely sure what will be
>discussed in which of those.
> Greg Shatan: (17:27) Irish flag colours....
> James Gannon [GNSO-NCSG]: (17:27) For the record that wasnt me
> James Gannon [GNSO-NCSG]: (17:27) =)
> Hillary Jett: (17:29) All upcoming CCWG sessions are located here:
> Sébastien (ALAC): (17:30) Can we have all the invitations for the
>meetings tomorrow and Monday?
> Robin Gross [GNSO - NCSG]: (17:30) I thought we were looking at both
>designator and membership - not preferencing designator at this point -
>we haven't determined it meets requirements, so I don't know how that
>become our focus.
> avri doria: (17:31) I still question the jump that was made form
>considering SM to considering SD.
> Alice Jansen: (17:33) Thank you for joining today's session!