Sub-Group Members: Alice Munyua, Athina Fragkouli, Becky Burr, Cheryl Landon-Orr, David McAuley, Edward Morris, Farzaneh Badii, Gary Campbell, Greg Shatan, Jonathan Zuck, Leon Sanchez, Mathieu Weill, Megan Richards, Philip Corwin, Robin Gross, Samantha Eisner, Steve DelBianco, Vrikson Acosta-Velasquez (19)
Guests: Edward McNicholas, Janet Zagorin, Josh Hofheimer, Rosemary Fei, Stephanie Petit, Steven Chiodini, Tennie Tam, Vivek Mahan (8)
Staff: Adam Peake, Alice Jansen, Berry Cobb, Brenda Brewer
Apologies: Sabine Meyer, Jordan Carter
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript CCWG ACCT LEGAL Subteam #8 1 April.doc
Transcript CCWG ACCT Legal Subteam Meeting 1 April.pdf
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p6coqeisw50/
The audio recording is available here: http://audio.icann.org/gnso/gnso-accountability-legal-01apr15-en.mp3
These high-level notes were prepared to help you navigate through content of the call and do not substitute in any way the transcript
Methodology
S&A suggestions: context important for ability to do research. Mechanism for community to agree on questions and consolidate them would be
useful. Helpful to have process where law firms coordinate for overlapping questions for efficiency purposes.
--> Memorandums will be filed on the wiki
--> Legal executive subteam to ensure there is no duplication
--> Coordination between law firms is desirable
--> Suggestion to add section in legal scoping document to record questions
--> Legal executive team to set order in questions
--> Q&A exercise or hollistic structure?
--> Timeline to be considered
--> Context to be provided
--> Consider triage to ensure efficiency
CONCLUSION: methods have been established (see wiki). All questions will be assigned to lawyers through memorandums. No need to address
questions outside memorandum. Legal subteam should consider 120-minute calls. Scoping document will be the main document of reference - all questions assigned to lawyers will be inserted into legal scoping document for records. Questions will be
posted on wiki page. Clarify questions prior to responding.
ACTION ITEM: Call duration to be adjusted -> 120 min - 1 hour (15:00-16:00 UTC) subteam members - 1h (16:00-17:00 UTC) lawyers
---
Review of Community Empowerment
We are looking for advice on our proposals (legally viable or not), not for a redesign. Need to know what structural changes are needed - if any -
to implement powers and mechanisms we want in place.
Outline next steps to meet goals:
1) Subteam to review documents from A&C - S&A
2) Ask how we may operationalize
ACTION ITEM Circulate templates of mechanisms to lawyers
Request to prioritize and narrow down areas to explore.
Board removal
Budget approval
Bylaws approval
Golden Bylaws
Independent Review Panel
Reconsideration Process
Jurisdiction
- Would help to focus on California law and avoid looking across globe.
- Jurisdiction refers to HQs.
- No political discussion - focusing on legal advice instead.
--> Jurisdiction will be addressed in WS2, as needed
ACTION ITEM - Circulate jurisdiction paper for information
Liability
Supervisory Board: what would it entail in terms of liability? Input would be welcome.
Lawyers to look at templates we are discussing so as to identify any issues we would be facing.
Legal subteam to sort out point of orders on list.
How do we may independent review panel binding? Framework around fundamental bylaws
ACTION ITEM: Schedule a legal subteam call for 1 April - 20:00-21:00 UTC
ACTION ITEM: Call duration to be adjusted -> 120 min - 1 hour (15:00-16:00 UTC) subteam members - 1h (16:00-17:00 UTC) lawyers
ACTION ITEM Circulate templates of mechanisms to lawyers
ACTION ITEM - Circulate jurisdiction paper for information
ACTION ITEM: Schedule a legal subteam call for 1 April - 20:00-21:00 UTC
Alice Jansen: (4/1/2015 06:15) Welcome to the legal Subteam call #8! Chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards
Holly Gregory: (09:52) Good morning /afternoon/ evening all!
vrikson: (09:52) Hello everyone :)
Steven Chiodini (Adler & Colvin): (09:54) Hello, everyone
Leon Sanchez (Co-Chair-ALAC): (09:58) Hello everyone
Holly Gregory: (09:58) greetings Leon
Michael Clark: (09:59) Greetings all
Greg Shatan: (10:00) Hello all.
Joshua Hofheimer: (10:00) Greetings and salutations!
Athina Fragkouli (ASO): (10:00) hello all
Brenda Brewer: (10:01) Alice Munyua is on phone line only
Brenda Brewer: (10:01) who has children in background?
Steven Chiodini (Adler & Colvin): (10:01) Rosemary and Stephanie will be joining shortly from Adler & Colvin
Mathieu Weill: (10:01) Hello everyone
Edward McNicholas, Sidley Austin LLP: (10:02) Good morning.
Brenda Brewer: (10:02) thank you!
Cheryl Langdon-Orr: (10:02) here in Listen mode
Robin Gross [GNSO - NCSG]: (10:03) good morning!
Philip Corwin: (10:04) Good morning all
David McAuley: (10:04) +1 to law firm coordination Holly
Holly Gregory: (10:05) there are additional questions that circulated last night from several members
Rosemary Fei: (10:06) Sorry, waiting for operator to get on audio
Stephanie Petit: (10:07) Same as Rosemary
Leon Sanchez (Co-Chair-ALAC): (10:07) Yes Holly, those are being noted and they will be formaly assigned through a memo
Leon Sanchez (Co-Chair-ALAC): (10:08) That is right @Athina
Rosemary Fei: (10:08) Finally got on audio
Stephanie Petit: (10:08) Same
Becky Burr: (10:08) Hi Ed McN!
Robin Gross [GNSO - NCSG]: (10:08) so many new questions over night - haven't had time to read them all yet.
Holly Gregory: (10:08) Thank you Athina, greatly appreciate support for the notion of greater coordination respect to the questions
Rosemary Fei: (10:09) Then why were both firms given some of the same questions?
Robin Gross [GNSO - NCSG]: (10:09) for breadth of answers - different specializes can bring different emphasis
Leon Sanchez (Co-Chair-ALAC): (10:09) @Rosemary because the legal sub-team wanted to have input from both firms on those questions
Rosemary Fei: (10:10) Do you want one voice, or two? Happy to coordinate with Holly, but wasn't clear you wanted thatl
Becky Burr: (10:10) seems to me that we should do more talking and less question formulation
Holly Gregory: (10:11) so to clarify, When we get questions from an indivdual -- such as David's or Ed's excellent question, the lawyers are not to address until the legal sub team organizes and sends to us. Is that coreect?
Holly Gregory: (10:11) sorry for the misspellings
Rosemary Fei: (10:11) That's what I understood as well
Leon Sanchez (Co-Chair-ALAC): (10:11) That is correct Holly
Holly Gregory: (10:12) The lawyers can be helpful in guiding your thinking about what you need -- if allowed.
Rosemary Fei: (10:12) I doubt a Q&A format will result in a solution
Robin Gross [GNSO - NCSG]: (10:12) there are so many of us with different voices, you'd be constantly peppered with questions, some of which are not as
much in scope as others
Leon Sanchez (Co-Chair-ALAC): (10:12) We will be going through that in a minute @Rosemary
Leon Sanchez (Co-Chair-ALAC): (10:13) Agree @Robin
Holly Gregory: (10:13) Agreed, Rosemary!
Edward Morris: (10:14) Agree with Greg's problem definition
Holly Gregory: (10:15) Concern is about meeting time line and avoiding inefficiencies given that many of the issues we look at for CWG are now coming up for CCWG
Holly Gregory: (10:16) We have shared our responses to questions with one another as between Sidley and Adler -- to assure no great disparities but if we are to speak with one voice you need to build in extra coordination time
Robin Gross [GNSO - NCSG]: (10:17) I don't want "one voice". I want breadth of experience.
Samantha Eisner 2: (10:18) @Leon, isn't there a role of teh subteam to make sure that the questions raised are applicable to the work at hand?
Holly Gregory: (10:18) Agree Robin
Athina Fragkouli (ASO): (10:18) Agree Leon
Holly Gregory: (10:19) Is there a role for the Legal Sub Team in establishing priorities in workflow re addressing questions
Robin Gross [GNSO - NCSG]: (10:20) That is my understanding, Holly.
Leon Sanchez (Co-Chair-ALAC): (10:20) Yes @Holly
Athina Fragkouli (ASO): (10:20) mine too
David McAuley: (10:20) Mine as well - triage good word Greg
Robin Gross [GNSO - NCSG]: (10:21) yes we have a new timeline
Steven Chiodini (Adler & Colvin): (10:23) I think that our concerns are being well described here. It was unclear to us whether we would be responding to a series of new questions and suggesting tools, as we did last week, or whether we would be expected to contribute to constructing a coherent, holistic model. The tight timeline over the next few weeks amplified this concern.
Greg Shatan: (10:23) I'm talking about substantive working methods, not procedural working methods.
Greg Shatan: (10:24) Do we get to vote on 4, 6 and 8 hour calls as well?
Holly Gregory: (10:24) Not sure 2 hour calls are the solution -- if there is not greater focus on the coordination of a working plan
Edward Morris: (10:24) We may want to have part of the call just with subgroup members
Cheryl Langdon-Orr: (10:25) LOL
Robin Gross [GNSO - NCSG]: (10:25) good idea, Ed.
Greg Shatan: (10:25) Timeline????!!!!!
Greg Shatan: (10:25) +1 to Holly
Athina Fragkouli (ASO): (10:25) +1 to Ed suggestion
David McAuley: (10:25) Agree w/Holly - I think we as sub-team need to coordinate separately (open to list review) and “triage” as Greg says beforehand to communicate to lawyers what we expect
Holly Gregory: (10:26) +1 David and Ed
Greg Shatan: (10:26) I'm not against working it out with the lawyers present.
Holly Gregory: (10:27) We set this time to meet some of other time constraints -- we are available first hour, not sure about second
Joshua Hofheimer: (10:27) Request for clarification @Leon -- Should Sidley and Adler endeavor to respond only to the questions posed to us through updates to the scoping memo? Does that mean if it is on the Wiki page we might see it, but not respond to it until it is added to the memo?
Athina Fragkouli (ASO): (10:28) That is my understanding too
Athina Fragkouli (ASO): (10:29) (my comment was for what Leon was saying at that time)
Greg Shatan: (10:29) Have the counsel been given formal access to the current working documents? Should they be looking directly at the working documents?
Holly Gregory: (10:30) Not sure that Sidley team is available for second hour. need to check calendars
Cheryl Langdon-Orr: (10:30) I assume lawyers could join the 1st hour but that would be for 'entertainment only' ;-)
Holly Gregory: (10:30) Cheryl +1
Joshua Hofheimer: (10:30) Perhaps the call could start 1 hour earlier, and then the lawyers could maintain the time currently reserved.
Rosemary Fei: (10:30) WE have access to the subteam wiki
David McAuley: (10:31) +1 Joshua but need to check on impact on others on call
Steve DelBianco [GNSO - CSG]: (10:33) There was also a suggestion that the 'Community' be able to vote for a line-item veto of an ICANN proposed annual budget
David McAuley: (10:34) Holly, Rosemary spoke of the timeline to do that last night, what is your estimate for a "holistic" approach
Cheryl Langdon-Orr: (10:34) That would be a sunset of the discussion on 2b then @Steve?
Cheryl Langdon-Orr: (10:34) argh auto correct sunset = SUBset
Holly Gregory: (10:36) I suggest that the Legal sub team task the lawyers with taking the four empowerment mechanisms and providing a more detailed discussion of how one might implement.
Leon Sanchez (Co-Chair-ALAC): (10:36) Right @Holly
Leon Sanchez (Co-Chair-ALAC): (10:36) That will be done
David McAuley: (10:36) any rough idea on how long it would take
Holly Gregory: (10:36) not as a structure -- but as information about the options and the details
Rosemary Fei: (10:36) Agree with Holly
Holly Gregory: (10:37) +1 Rosemary
Jonathan Zuck (IPC): (10:37) Agree
Michael Clark: (10:37) makes sense to me
Cheryl Langdon-Orr: (10:39) Agree makes good sense
Rosemary Fei: (10:39) Should all questions about what's viable assume that we have exactly the existing ICANN structure?
Robin Gross [GNSO - NCSG]: (10:39) yes, we are groping in the dark, otherwise. Agree with Holly.
Athina Fragkouli (ASO): (10:40) agree
Edward Morris: (10:40) Thanks Holly. Very useful.
David McAuley: (10:40) I like Holly's suggestion, one week, and would ask that in addition to the four items maybe also a discussion of how to make IRP binding in some way in that reply
Samantha Eisner 2: (10:40) @Steve, I don't recall hearing the conversation on the line item veto in the discussions I attended remotely from Istanbul - did I miss discussion of it?
Becky Burr: (10:41) the IRP question is very simple - how and to what extent can we make decisions of the IRP binding on ICANN
Robin Gross [GNSO - NCSG]: (10:41) Right - don't want to forget IRP binding issue
Rosemary Fei: (10:41) I believe achieving some of what you've asked for may require structural changes.
Samantha Eisner 2: (10:41) @Rosemary, I think that the viability would include recommendations of where the structure needs to change
Steve DelBianco [GNSO - CSG]: (10:41) @Sam -- Alan Greenberg suggested it
Edward Morris: (10:41) I agree Rosemary.
Cheryl Langdon-Orr: (10:42) Yes @Sam it was iscussed though not in great detail =? rational was t focus on an issue of concern as oppoed to "ditch the whole Budget"
Becky Burr: (10:42) there was some discussion of line item veto in the aftermath of the general budget veto discussion
Samantha Eisner 2: (10:42) thanks Steve and Cheryl
Holly Gregory: (10:42) lets keep focused for the project in one week and not get deep into structure
Rosemary Fei: (10:42) Helpful, Leon.
David McAuley: (10:42) I agree Leon that reconsideration process is important but as between it and IRP I see IRP as more so and would recommend that reconsideration be a necessary precursor before filing IRP
Athina Fragkouli (ASO): (10:42) +1 Leon that is in line with my understanding
Rosemary Fei: (10:43) Holly, are you saying we should answer assuming existing structure only?
Holly Gregory: (10:44) No -- but not getting deep into structural change provide information about what the possibilities are with respect to the four mechanisms.
Becky Burr: (10:44) +1
David McAuley: (10:44) +1
Cheryl Langdon-Orr: (10:44) Exactly @Holly +1
Rosemary Fei: (10:45) Understood. Thanks for clarification, Holly.
Athina Fragkouli (ASO): (10:45) +1
Holly Gregory: (10:46) We think that it is very likely that CA provides what you need given the flexibility under state corporate law.
Holly Gregory: (10:46) The political issue is another matter
Rosemary Fei: (10:47) I'm not sure I understand what you mean by "jurisdiction". Do you mean domicile of corporation? Where HQ is based? ICANN operates internationally, of course., and in all 50 US states.
Rosemary Fei: (10:47) Agree with Holly
Rosemary Fei: (10:50) The questions we were asked and answered last week were not only about where incorporated. Questions included being subject to laws of jurisdiction.l
Rosemary Fei: (10:51) What Holly's saying is essentially what I'm sayring in the chat
Robin Gross [GNSO - NCSG]: (10:51) We know about rat holes at ICANN. ;-)
David McAuley: (10:51) In a digital world I would imagine ICANN will be subject to dispute jurisdiction in many places around the world so I doubt we need to address this
Rosemary Fei: (10:51) Can lawyers have a role in clarifying the questions, BEFORE we're asked to answer them?
Jonathan Zuck (IPC): (10:52) definitely. let's get the questions clear first
Athina Fragkouli (ASO): (10:52) @Rosemary that makes sense to me
Robin Gross [GNSO - NCSG]: (10:52) Yes, David. I suspect ICANN could be subject to legal jurisdiction just about everywhere on the planet.
Robin Gross [GNSO - NCSG]: (10:52) I like that suggestion, Rosemary.
Samantha Eisner 2: (10:52) @Rosemary, I would encourage any efforts to clarify the questions prior to responding to them
Holly Gregory: (10:52) +1 Rosemary
Robin Gross [GNSO - NCSG]: (10:52) so we could have a discussion to go over the questions
Athina Fragkouli (ASO): (10:53) +1 Robin
Michael Clark: (10:53) Robin's suggestion would be very helpful.
Rosemary Fei: (10:53) Yes
Holly Gregory: (10:54) agreed robin and michael and rosemary!
Joshua Hofheimer: (10:54) In the remaining time, can we clarify the timeline for the most immediate action items?
Holly Gregory: (10:55) Would be good before the hour is up to clarify the specific tasks.
Holly Gregory: (10:56) for discussion notes, please adjust to indicate that jurisdiction can mean different things -- where incorporated, where headquartered, what laws apply
Edward Morris: (10:56) WE're also still looking at statutory membership, statutory delegates etc.
Holly Gregory: (10:56) Would be good before the hour is up to clarify the specific tasks.
Rosemary Fei: (10:57) I'm not sure if "supervisory board" means what's available in European law, or the "superboard" concept we raised in our initial answer.
Holly Gregory: (10:59) Question re GAO interview: how much of the emerging thinking is likely to be discussed and would it be helpful to have some assistance/insights re the process from Sidley
Robin Gross [GNSO - NCSG]: (10:59) Will the "delegate" and "true membership" model be evaluated? I would think community members are looking to see that.
Athina Fragkouli (ASO): (10:59) I would suggest us to collect our questions and send them to the lawyers in writing
Rosemary Fei: (10:59) Should we look at only some of the many, many templates, i.e., the ones on the specific 6 topics in the notes?
Robin Gross [GNSO - NCSG]: (10:59) +1 Athina. And then have a quick call with them for the clarifiying questions.
Athina Fragkouli (ASO): (11:00) agree
Edward Morris: (11:00) +100 David
Robin Gross [GNSO - NCSG]: (11:00) Agree with David - let's sort it out first.
Holly Gregory: (11:01) I still don't have a clear understanding of what you want us to work on. Should we start working on the empowerment mechanisms?
Leon Sanchez (Co-Chair-ALAC): (11:01) @Holly we will provide you with specifics later today
Robin Gross [GNSO - NCSG]: (11:01) Thanks to our independent lawyers for indulging this messy mutli-stakeholder method. I know we are rushed, and a bit messy, and on the fly. Appreciate your continued patience with us.
Leon Sanchez (Co-Chair-ALAC): (11:02) +1 Robin
Holly Gregory: (11:02) OK, but rather than address questions we think that taksing us with fleshing out what is possible would be improtant as a priority and in the course of that many questions will likely be answered
David McAuley: (11:02) Suggestion – any chance the subteam can get together again today and then Leon instruct lawyers at end of day as to what focus is needed
Robin Gross [GNSO - NCSG]: (11:02) let's do that, David.
Leon Sanchez (Co-Chair-ALAC): (11:02) I can do that
Edward Morris: (11:02) Agreed David
Becky Burr: (11:03) i am on the call
Holly Gregory: (11:03) We greatly enjoy this Robin -- the project is intellectually stimulating, the process is refreshing and the work is vitally important. We want to make sure we give you our best advice in the most efficient way possible and our comments are meant in that light.
David McAuley: (11:03) good point Greg about coordinating work with Jordan, Becky
Athina Fragkouli (ASO): (11:04) @David, this wouldn't be possible for me..
Rosemary Fei: (11:04) I have no idea what the CWG's work is and how it intersects with this. WHat doc should I look at to figure that out.
Holly Gregory: (11:04) Rosemary, we are advising the CWG and can call you and give you a summary
Samantha Eisner 2: (11:05) @Rosemary, I'd recommend starting with the Sidley memo in response to the CWG's questions
Stephanie Petit: (11:05) +1 Holly
David McAuley: (11:05) +1 Holly - Rosemary I would suggest not doing anything on CWG yet except for what Holly suggests, IMO
Samantha Eisner 2: (11:06) ICANN staff or some of the community members here could also help point you to specific items within teh CWG work that you might need to look at, once youtalk to Holly
David McAuley: (11:06) yes Leon - would have to be recorded good point
Rosemary Fei: (11:07) That's a calll without lawyers, correct?
Brenda Brewer: (11:07) WP2 is at 21:00 today for 1.5 hours
Samantha Eisner 2: (11:07) @rosemary, that's my understanding as well
David McAuley: (11:07) yes
Brenda Brewer: (11:07) that time is out
Edward Morris: (11:07) WP1 call at 21:00
Holly Gregory: (11:08) Thank you all. Again -- the project is intellectually stimulating, the process is refreshing and the work is vitally important. We want to make sure we give you our best advice in the most efficient way possible and our comments are meant in that light.
Brenda Brewer: (11:08) sure
Alice Jansen: (11:08) we will look into this and be in touch shortly - what about 20:00-21:00 UTC?
Athina Fragkouli (ASO): (11:08) I may not make be able to make it
Alice Jansen: (11:08) (apologies, not on the phone)
David McAuley: (11:08) Thanks Holly, Rosemary, and both legal teams
Cheryl Langdon-Orr: (11:08) Finding times will be a challenge and of course I assunme that the community will be told it is on and when (with insuffucient notice by deffinition)
Greg Shatan: (11:09) The Pre-Istanbul timeline is file:///C:/Users/Gregory/Documents/IPC/CWG-CCWG_timeline_20150320.pdf. The draft proposal completion on that list has now been pushed out from early April to approx. April 20th.
Cheryl Langdon-Orr: (11:09) Thanks everyone good call...
David McAuley: (11:09) Thanks Leon
Rosemary Fei: (11:09) Happy to be working with you. Very interesting work.
Robin Gross [GNSO - NCSG]: (11:09) thanks, all, especially our independent lawyers!
Cheryl Langdon-Orr: (11:09) Bye
Alice Munyua (GAC): (11:09) Thank you!
Athina Fragkouli (ASO): (11:09) thank you
David McAuley: (11:10) thanks all