Attendees:

Members: Alan Greenberg, Cheryl Langdon-Orr, Fiona Asonga, Izumi Okutani, Jordan Carter, Jorge Villa, Julia Wolman, Leon Sanchez, Mathieu Weill, Pär Brumark, Robin Gross, Samantha Eisner, Sebastien Bachollet, Steve DelBianco, Thomas Rickert, Tijani Ben Jemaa (16)

Participants: Aarti Bhavana, Alissa Cooper, Andrew Sullivan, Avri Doria, Brett Schaefer, Chris Disspain, Chris LaHatte, Christopher Wilkinson, Corinne Cath, David McAuley, Edward Morris, Erika Mann, Farzaheh Badii, Greg Shatan, Harold Arcos, Jonathan Zuck, Jorge Cancio, Lito Ibarra, Matthew Shears, Maura Gambassi, Megan Richards, Nikki Hu, Olivier Muron, Padmini Baruah, Peter Green, Philip Corwin, Sabine Meyer, Sonigitu Ekpe, Suzanne Woolf, Tatiana Tropina, Tom Dale, Tomohiro Fujisaki (32)

Legal Counsel: Edward McNicholas, Emily Chan, Holly Gregory, Nancy McGlamery, Rebecca Grapsas, Rosemary Fei, Sharon Flanagan, Steven Chiodini (8)

Observers and Guests: Daniel Halloran, John Jeffrey, John Poole, Jabhera Matogoro

Staff: Bernie Turcotte, Berry Cobb, Brenda Brewer, Karen Mulberry, Nigel Hickson, Theresa Swinehart, Trang Nguyen, Yuko Green

Apologies: Julie Hammer, Kavouss Arasteh, Seun Ojedeji, Alberto Soto

**Please let Brenda know if your name has been left off the list (attendees or apologies).**

Transcript

Recording

The Adobe Connect recording is available here: https://icann.adobeconnect.com/pzuxwco4o6/
The audio recording is available here: http://audio.icann.org/accountability/ccwg-accountability-27apr16-en.mp3

Agenda

1. Welcome, roll call, SOI

2. Timeline for CCWG Comment on Draft Bylaws

- Apr 27^th: CCWG ACCT Meeting #92

- May 3^rd: CCWG ACCT Meeting #93

- May 10^th:Submission

3. Introductory remarks from Holly and Rosemary

4. Q&A

5. ICANN Legal discussion on 1.1

6. AOB

Notes

These high-level notes are designed to help you navigate through content of the call and do not substitute in
any way the transcript.

1. Welcome, roll call, SOI (LS)

TRickert has updated his SOI.

2. Timeline for CCWG Comment on Draft Bylaws

- Apr 27th : CCWG ACCT Meeting #92

- May 3rd : CCWG ACCT Meeting #93

- May 10th : Submission

No objections to proposed timeline.

3. Introductory remarks from Holly and Rosemary

4. Q&A (TR)

Email question on Human Rights from Niels has been responded to by Rosemary Fei and this will be included in the CCWG response to the public consultation on the draft Bylaws.
TTropina - Only lawyers can suggest clarifications?
HGregory - Anyone can propose clarifications but the CCWG needs to decide which to accept.
TR - no wordsmithing please.
GShatan - The difference between HG proposal and mine is that HG suggested language perpetuates the ambiguity. FOI approval is business as usual per CCWG procedures.
RFei - Ambiguity comes in in the parenthetical - the INCLUDING CO APPROVAL – this causes the confusion - this should simply be removed and approval is then according to standard process.
TR - there seems to be general support for RF proposal but participants would like to see the language.
LSachez - WHOIS review has been deferred several times - the Bylaws speak to the timing of reviews (5 years from start of previous one). Given the previous WHOIS review was in 2010 the approval of the new Bylaws would automatically put us in default. How would lawyers recommend we deal with this issue - possibly via a footnote?
RFei - The CCWG never intended to create a situation where when the Bylaws came into effect this would create such a situation. All we need is confirmation of this and lawyers can fix this.
TR - Reminder the only thing we are doing here is ensuring consistency between our final report and the draft Bylaws. Adding things that are beyond our report is not our responsibility.
AGreenberg - True, but the previous Bylaws gave the Board room to fix such things which when the new Bylaws come into effect will no longer be possible for the Board. Yes such a change is beyond what was in the CCWG recommendations.
HGregory - Such things will happen in this type of large document. Now that we are aware of this we, including ICANN legal, should be able to propose language to the CCWG.
GShatan - Transitional bylaw would make sense as a place to fix this - but do not want top open the door to wholesale delaying of reviews.
TR - I do not know if there are any other topics which require such action and if this is not the case then it may not be our responsibility to handle this. Let us ask the legal teams to consider this.
HGregory - whatever we come up with should be part of the CCWG response to public comment on the draft Bylaws.
TR - any further comments or questions? none. We can move to the next agenda item.

5. ICANN Legal discussion on section 1.1 d of the draft Bylaws (MW)

MW - this is about the GRANDFATHERING provisions in the Mission and Core Values. The conclusion of our previous call was that we would hold a plenary discussion of this. Our lawyers have provided formal input to us on this topic explaining their support for the language.
SEisner - We provided an explanation document on the various grandfathering clauses. The contracting of the IANA function had to be added to ensure ICANN could continue to perform its historic mission wrt IANA. This does not add anything to ICANN's mission, but simply confirms that these responsibilities and contracts cannot be challenged as not being in ICANN's mission.
JJeffrey - This is a good start. We all need to know what those documents, PTI Byalws, ICANN-PTI contract etc. but these will be the subject of public consultation etc.
ASullivan - What JJ has said is part of what I am concerned about. there are provisions in the grandfathering clauses that refer to documents that have not yet been written and refer to parties which do not exist (PTI). What is more troubling is that including external documents in the mission could technically modify the mission without a formal process for approving such changes. This seems to create a truck-sized hole. More concerned about 2 provisions - the PTI agreement and the 5 year plan. But overall the notion of including things which are not yet in existence in the mission.
RFei - I understand why this is a concern - what is important is that those documents need to be in existence when the Bylaws come into effect as the draft Bylaws currently state. The discomfort should be about what those documents will actually say.
ACooper - this conversation clearly shows the issue is timing. It is quite likely that there will not be sufficient time to have a proper and thorough review of the PTI documents. This provision is not necessary to implement the results of the CWG and the CCWG and creates a giant loophole which would create the opportunity to amend the mission indirectly. Do not think we can approve these Bylaws with this clause. The ICG proposal says the most important thing is that the IANA functions continue to be preformed properly vs having ICANN perform these functions.
JCarter - I am more relaxed on this given the community will review those proposals which are not yet defined.
GShatan - As a lawyer who does this type of work regularly - convergent drafting - all documents WILL exist at the time they come into force. RA and RAA grandfathering should not be up for discussion here. So this type of situation is not exceptional.
SEisner - PTI contract development - We are working with the community to ensure that the community can be properly consulted. It is important to note that there is not a lot that ICANN can put in the PTI documents given it is about performing the IANA function. The intent is not about preserving ICANN performing the IANA functions - if the operational communities think ICANN should be performing those IANA functions then ICANN should be able to do so without being challenged that it is not in mission. On the PTI Sidley will be involved.
Holly J. Gregory (Sidley) from chat: We also assume that as counsel to CWG we will have an opportunity to weigh in on the PTI Articles and Bylaws and "certify" consistency with the CCWG and CWG Proposals
ASullivan - I was listening the discussion on phone and did not follow the chat. There may be a deeper and fundamental issue - the entire grandfathering section sets up a condition that there is no way to question agreements covered by it. I do not understand why this needs to be a piece of fundamental Bylaws and a carve out - including contracts in the mission of ICANN seems to go against the notion of simplicity and clarity for the mission.
MW - good to have this discussion. recap of points presented. The two points of view are protecting the right of ICANN to perform the IANA functions for the communities vs having external contracts in the mission. This is a surprizing situation with no clear way forward - given ACooper has stated in the chat that additional process safeguards would not fix this.
ASullivan - what new text would help (from chat)? There is no need for section D. If there is a need for sub-section D we have a bigger problem. Many issues make it too dangerous. Just remove it.
ACooper - On the contracts that are not yet written - we went through this process to define a clear narrow mission - IF the PTI agreements would not expand the mission as originally intended then there is no need for this clause. The situation for existing documents / agreements is different (RA, RAA).
MW - sections 11D has several sub-sections, the RA and RAA have been discussed and is not at issue here. B are existing and not at issue. C and D (RZ Maintainer and PTI) are at issue. Uncertain that we can make more progress today. Lawyers have to find a way to ensure that the scope of the ICANN mission as per the CCWG recommendations is preserved. The way the CCWG has scoped the mission cannot be modified by including these yet undefined documents. This discussion should continue on the list.
RFei - Concerns about this protection changing the scope of the mission - my understanding is that these agreements would be negotiated to be consistent with the mission. the purpose is to protect agreements that have been agreed by the community.
ASullivan - the IETF considers its relationship with ICANN to be that with a service provider. As such there could be a consensus problem.
MW - we will need to summarize these discussions and refer to the CCWG recommendations for the mission. The PTI contract and the RZM agreement will not go through the same approval process as the CCWG recommendations have - the requirement is simply that they go through public comment - which is quite different. There should be no loopholes in the mission. We should ask our lawyers to confer on this and suggest how to address this. I am coming out of this discussion with two different views I would like to avoid having people from the operational communities putting in public comments against these provisions as this would be unfortunate.
ASullivan - Nobody wants this transition to fail. The challenge is simply how to write this so it works well for everybody. There is a concern that some may be favoring incumbent (ICANN).
MW - We need to follow the requirements of the recommendations of the CCWG. This needs to be discussed on the list and lawyers need to consider this. We should get back to this at our next meeting.

6. AOB -LS

clarification of deadlines.

No other points.

Action Items

Documents

Agenda Item 5: Explanation of grandfathered agreements.pdf

Adobe Chat

Brenda Brewer: (4/26/2016 22:30) Welcome all to CCWG Accountability Meeting #92 on 27 April 2016 @ 04:00 UTC! Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards

Holly J. Gregory (Sidley): (22:38) Greetings Brenda and Robin -- the early birds have gathered!

Brenda Brewer: (22:39) hello!

Bernard Turcotte Staff Support: (22:55) hello all

FIONA ASONGA (ASO): (22:55) Hallo Everyone

Holly J. Gregory (Sidley): (22:56) Hi Bernie, Hi Fiona!

Mathieu Weill, ccNSO, co-chair: (22:57) Hello everyone, welcome to this legally intensive call !

Leon Sanchez (Co-Chair ALAC): (22:58) Hello everyone

Leon Sanchez (Co-Chair ALAC): (22:58) it might be bumpy ahead. Fasten your seatbelts :-)

Nikki Hu（BII）: (22:59) hello,everyone!

Pär Brumark (GAC Niue): (23:01) Hello everyone!

nigel hickson: (23:01) Good morning

jorge cancio (GAC Switzerland): (23:01) good morning!

David McAuley (RySG): (23:02) Good morning all

Tatiana Tropina: (23:05) good morning!

Brett Schaefer: (23:08) Not sure why this was not done prior to the public comment. It now will look like we did not really vet teh final product.

p: (23:08) For the record, "P" is Philip Corwin. I was unable to correct my name listing

Brett Schaefer: (23:09) Having the CCWG do a public comment on its own work seems strange.

Rosemary Fei: (23:10) Hello, everyone. I am now in the Adobe room.

Leon Sanchez (Co-Chair ALAC): (23:11) Welcome Rosemary :-)

Rosemary Fei: (23:12) Thank you, Leon. And thank you Holly.

Sonigitu Ekpe: (23:12) Greetings from Calabar, Nigeria.

Andrew Sullivan: (23:15) Given the agenda, is 1.1. out of scope for this Q&A, or is it in?

Rosemary Fei: (23:15) That was not suggested by me, Thomas.

Brett Schaefer: (23:16) Leon, but we have already reviewed an commented on the draft at least twice Now we are doing it again in a public comment. It seems that we should have just done another private round on the current bylaws draft before posting it to public comment. The current process looks like we jumped the gun.

Mathieu Weill, ccNSO, co-chair: (23:16) Let's keep it for later Andrew, if possible

Andrew Sullivan: (23:16) ack

Rosemary Fei: (23:16) Happy to take credit, if you like. ;)

Holly J. Gregory (Sidley): (23:16) Just to clarify -- the HR FOI point is not an inconsistency but it is an area where clarification would be helpful

Andrew Sullivan: (23:18) @Mathieu: I do rather hope that the chairs will manage time such that the 1.1 discussion will have appropriate time, given this meeting plan

Andrew Sullivan: (23:18) since it is easily the most fundamental issue

Tatiana Tropina: (23:19) Thanks, Holly!

Padmini: (23:20) Was wondering out of curiosity, are all substantive comments to the bylaws going to be disregarded? is it not possible for us to find substantive issues even at this stage?

Jordan Carter (.nz, ccNSO): (23:20) Now on adobe, was on phone only til now

Mathieu Weill, ccNSO, co-chair: (23:21) Padmini, what do you mean by substantive ?

Andrew Sullivan: (23:21) @Padmini: do you mean "substantive issues" that disagree with what the CCWG said, or do you mean "substantive issues" that are problems we find now?

Padmini: (23:21) @matthieu: My understanding is that the

Andrew Sullivan: (23:21) if the former, then that's our problem. If the latter, then not now

Padmini: (23:21) purpose of this comment is to compare consistency with the CCWG recommendations

Samantha Eisner: (23:21) If substantive changes are provided that would result in inconsistency with the proposals, those likely would not be able to be taken on

Brett Schaefer: (23:21) For the record, my disagreement with Greg and Tanya was mainly a procedural one. I have discussed this with them offline and misunderstood what they were proposing. I disagrewith them that his clarification is necessary, but on substance it is consistent with the process we discussed in the previous months.

Tatiana Tropina: (23:22) Thanks, Brett. Really helpful to have this on the record :)

jorge cancio (GAC Switzerland): (23:22) seems we are all agreed on this point, right?

David McAuley (RySG): (23:22) I may have misunderstood what we were discussing on list – I thought it was to change the draft bylaw. If the discussion was about making a CCWG comment on the draft bylaw then I would support either Geg or Holly's but prefer Holly's.

Padmini: (23:22) In the event that something anyone finds problematic comes up, will that be regarded or not?

Greg Shatan: (23:22) My suggestion is intended to bring the Draft Bylaw into a consistent state with the proposal.

Tatiana Tropina: (23:23) Greg, but only through the CCWG comment :)

David McAuley (RySG): (23:23) Greg, I meant

Holly J. Gregory (Sidley): (23:23) Agree that Rosemary's fix works.

Greg Shatan: (23:23) That's a fair suggestion Rosemary -- clarification by subtraction!

Matthew Shears: (23:23) agree with Rosemary

Greg Shatan: (23:23) Very elegant.

Chris Disspain: (23:23) Greetings All, apologies for my late arrival

Mathieu Weill, ccNSO, co-chair: (23:23) @Padmini: I am still unclear. Anything problematic in the sense of inconsistent with our report should be flagged

Andrew Sullivan: (23:23) I think what Rosemary just suggested is a clean answer

Tatiana Tropina: (23:23) Agree and support!

Padmini: (23:24) Thanks Matthieu.

Holly J. Gregory (Sidley): (23:24) Yay Rosemary!

Brett Schaefer: (23:24) Can we see tet?

Cheryl Langdon-Orr (CLO): (23:24) Agree

Brett Schaefer: (23:24) Text

Megan Richards: (23:24) agree with rosemary

jorge cancio (GAC Switzerland): (23:24) let's see it, agree with Brett

Jonathan Zuck: (23:24) agree pending text, like Brett

Greg Shatan: (23:24) Brett, I think Tet is in Vietnam.

Andrew Sullivan: (23:24) agree need to see text

David McAuley (RySG): (23:24) I had interference and did not hear Rosemary suggestion

Sonigitu Ekpe: (23:24) +1 @Rosemary

Brett Schaefer: (23:24) @Greg good to know, Google maps is offline

Greg Shatan: (23:25) @David, remove the parenthetical.

Jonathan Zuck: (23:25) @Greg but we've marched

Tatiana Tropina: (23:25) David, it's on the right in the notes

David McAuley (RySG): (23:25) ok thanks - will look at text, but as a comment sounds fair

David McAuley (RySG): (23:26) Thanks Tatiana, this sounds like a fair comment for CCWG to make

Steve DelBianco [GNSO - CSG]: (23:27) The AoC called for a Whois review every 3 years, actually. We extended to 5 years in our proposal.

Cheryl Langdon-Orr (CLO): (23:28) yes Steve we know that but they also state the RT needs to conveene 5 years from last convened that was 2010

Cheryl Langdon-Orr (CLO): (23:28) Yes ony the 1 *next* Whois RT

Cheryl Langdon-Orr (CLO): (23:29) Then it goes as writ in a 5 year max cycle'

Steve DelBianco [GNSO - CSG]: (23:29) no need to "fix" that. Just adopt the bylaws and let's acknowledge this particular review is late. It is already late since AoC called for this review after 3 years

Cheryl Langdon-Orr (CLO): (23:29) Only needs a single exception rer this next Whois Review

Cheryl Langdon-Orr (CLO): (23:29) YES

Cheryl Langdon-Orr (CLO): (23:29) Steve ALAC and some of the Board *is* concerned re this matter

Greg Shatan: (23:30) Transitional bylaw?

Cheryl Langdon-Orr (CLO): (23:30) surely easier to fix this risk, it was a mere oversite between intent and outcomes , if we don't fix then we will have issues

Holly J. Gregory (Sidley): (23:31) bylaw implementation by its nature will stumble on issues that weren't contemplated

Cheryl Langdon-Orr (CLO): (23:31) Yes Alan this would be a dumn one to mmake, especially when we have noted it now...

Rosemary Fei: (23:31) Sorry, I got cut off; I just called back in.

Steve DelBianco [GNSO - CSG]: (23:31) Bylaws are Normative. And sometimes we will not meet the bylaws.

Megan Richards: (23:31) did we lose sound?

Cheryl Langdon-Orr (CLO): (23:32) I prefer not to do dum things if we can at this stage

Steve DelBianco [GNSO - CSG]: (23:32) The AoC did not give board discretion to delay reviews. That is not true, Alan

David McAuley (RySG): (23:32) I can hear Megan

Cheryl Langdon-Orr (CLO): (23:32) Exactlyy Holly this is a tweek IMO

Rosemary Fei: (23:32) I could finish my comment, if you wish.

Megan Richards: (23:32) sorry it was my connection

Rosemary Fei: (23:32) Holly's comment is exacty what I was going to say

Thomas Rickert, CCWG Co-Chair: (23:32) I will get back to you, rosemary!

Alan Greenberg: (23:33) @Holly, that was certainly the hope in raising the issue.

Andrew Sullivan: (23:33) out of queue; what Holly is saying now. This is detail work.

Alan Greenberg: (23:34) We never consciously recognized that the review had already been defered so much and we were thus so close to the line

Cheryl Langdon-Orr (CLO): (23:34) That sounds perfect plan to me Rosemary and I beleive it is ONLY for this next WHOIS Review Yes quite specific no opening of barn doors please

Padmini: (23:35) We had a small query from CIS: where in the CCWG report it says PTI will have California jurisdiction (which is what the bylaws state) and how is that compatible with the Names Community submission to the ICG which indicates jurisdiction of incorporation of PTI will be negotiated with PTI's lawyers.?

Mathieu Weill, ccNSO, co-chair: (23:36) @Padmini: would that not be in the CWG-Stewardship ?

Matthew Shears: (23:37) reference please Padmini - page etc.

Sharon Flanagan (Sidley): (23:37) The CWG proposal provides that PTI will be a California non-profit corporation

Cheryl Langdon-Orr (CLO): (23:37) yes it would be Mathieu

Jordan Carter (.nz, ccNSO): (23:37) you have done an amazing job, Holly and Rosemary and all, on this - and ICANN legal too, well done Sam

Andrew Sullivan: (23:37) Uh, "sterling" may be exaggerating

Jordan Carter (.nz, ccNSO): (23:37) I was not really of the view it could be done in this timeframe, and it has been and has been done well

Cheryl Langdon-Orr (CLO): (23:37) indeed great job !!!

Andrew Sullivan: (23:38) since the 1.1 discussion is not yet on

Brett Schaefer: (23:38) Thomas, I have nor fully read through the new bylaw draft. Will we have a chance to raise issues on May 3?

Holly J. Gregory (Sidley): (23:38) And Jurisdiction of PTI will be addressed in PTI Bylaws

jorge cancio (GAC Switzerland): (23:38) I guess Brett makes a point applicable to many of us: we still need to thoroughly read the draft

Greg Shatan: (23:38) I also have a point to raise on 1.1. It may or may not be the same as Andrew's point....

Padmini: (23:39) A lot of the CCWG Recommendations are contingent on Cali jurisdiction. Like the Designator model etc. Was curious as to its validity in the event that there is a jurisdiction shift.

Holly J. Gregory (Sidley): (23:39) Many thanks Jordan. That is high praise indeed considering the source!

Samantha Eisner: (23:39) Thanks Jordan!

Cheryl Langdon-Orr (CLO): (23:39) :-)

Jordan Carter (.nz, ccNSO): (23:39) i haven't found a single point of disagreement in my reading of the docs

Greg Shatan: (23:39) Brett -- what have you been wasting your time on? Sleep? Work?

David McAuley (RySG): (23:40) +1 to Jordan's comment about work by lawyers

Philip Corwin: (23:40) @Holly--please explain how PTI jurisdiction can be addressed in its bylaws after it is established as a CA nonprofit (which I favor, as ICANN is a CA nonprofit and entire accountability structure keyed to CA law)

Brett Schaefer: (23:41) @Greg, catching up on my other work. My boss has certain expectations. Can you believe it?

Holly J. Gregory (Sidley): (23:41) Phil, I meant its Articles

Cheryl Langdon-Orr (CLO): (23:41) How aweful BretT!

Andrew Sullivan: (23:41) I wish to be clear for the record here that I very strongly echo the thanks to everyone involved in the work so far. I believe that all the work has been constructive and valuable. All my resservations are about the consequences,

Greg Shatan: (23:42) @Brett -- just tell him you're a meth-head. It's more believable than that ICANN stuff.

Farzaneh Badii: (23:42) @ Padmini, We will extensively talk about jurisdiction in WS2. I don't honestly think it really matters now.

Padmini: (23:43) @Farzii, a lot of the structures in place are contingent on Cali jurisdiction. Wouldn't WS2 be too late?

Padmini: (23:43) @Matthew: The references are in our public comment. I'm happy to send it to you if you like.

Philip Corwin: (23:43) @Holly-- regardles of whether Bylwas or Articles, what is there to decide via-a-vis jurisdiction if it is establshed as CA nonprofit? Is it free to change its jurisdictional locus?

Padmini: (23:44) Are we taking PTI Jurisdiction for granted then?

Leon Sanchez (Co-Chair ALAC): (23:44) @Padmini, if a jurisdiction change happens, that would pretty much involve a reinvention of ICANN so contingency on Cal. law wouldn't really come into play in my mind at least

Sharon Flanagan (Sidley): (23:44) The ICANN draft bylaws provide in Section 16.1 that PTI will be a CA entity. This is what the CWG contemplates as well.

Brett Schaefer: (23:44) @Leon, then why are we discussing jurisdiction in WS2?

Padmini: (23:45) Farzii, will jurisdiction dicsussion be reponed in WS2?

Padmini: (23:45) What would the point of that be?

Farzaneh Badii: (23:45) We will discuss the IRP jurisdiction in WS2 I believe

Padmini: (23:45) I don't quite understand.

Holly J. Gregory (Sidley): (23:45) Reincorporation in another jurisdiction is possible if the community and board of ICANN decide down the road but for now as Sharon Flanagan has pointed out the CWG has required that PTI be a CA non profit

Padmini: (23:45) @Sharon, could you point me to where it says so in the CWG report?

Padmini: (23:45) or @Holly.

Philip Corwin: (23:46) @Shannon-- understood. So when its Artcles are drafted, they must reflect that? Just want to nail down

Holly J. Gregory (Sidley): (23:46) Yes Phil

Sharon Flanagan (Sidley): (23:46) It's in paragraph 105, footnote 5 of the CWG final proposal (page 19)

Philip Corwin: (23:46) Thank you Holly - and Shannon

Padmini: (23:47) Once the bylaws are closed for comment the question won't be discussed again

Greg Shatan: (23:47) Phil, do you mean Shannon Flarragan?

Padmini: (23:47) Isn't it important for us to talk about this before that?

Mathieu Weill, ccNSO, co-chair: (23:47) Padmini, I suggest you refer to annex 12 of our supplemental report. It has a section on jurisdiction. A multi facetted issue

Holly J. Gregory (Sidley): (23:47) It is also in Section 16.1 of the proposed ICANN Bylaws

Philip Corwin: (23:47) Yes Greg, pardon my typo. It's late ;-)

Philip Corwin: (23:48) I meant Sharon

Padmini: (23:48) Yes yes, but I am still wondering why we are pushing the discussion to post the bylaws comment period

Greg Shatan: (23:49) Jurisdiction of PTI is outside the scope of the CCWG. That is a CWG question, which was settled in that WG.

Holly J. Gregory (Sidley): (23:50) And the CWG Proposal must be reflected in the Bylaws

Padmini: (23:50) @Matthieu, did annexure 12 recommend California Jurisdiction for PTI?

Pär Brumark (GAC Niue): (23:50) Good point Andrew!

Greg Shatan: (23:50) Padmini, PTI is not a CCWG matter.

Farzaneh Badii: (23:51) you need to look at CWG work Padmini

Leon Sanchez (Co-Chair ALAC): (23:51) @Padmini, could you please raise your question in the CWG where I believe the issue was widely discussed?

Andrew Sullivan: (23:51) Yes, they must exist on that date But what are they?

Andrew Sullivan: (23:52) No, what we need to know is wha they say, period

Philip Corwin: (23:52) @Holly--I reviewed the draft Bylaws today with a focus on jurisdiction, and also noted that Section 6.1 requires the Empowered Community to be established as a CA nonprofit association. (Which is an interesting situation for the GAC ;-)

Brett Schaefer: (23:53) Andrew makes a fair point, we would be signing onto agreements via the bylaws (hard to change) whose content is unknown currently.

Holly J. Gregory (Sidley): (23:53) Yes Phil, as does the Proposal

Padmini: (23:53) @Greg, thanks. Had a query. Could you point me to the discussion on the CWG mailing list or in the final document where this was settled? Could you point to discussion within the CWG specifically with regard to CIS's objection to the proposed requirement that PTI necessarily be a US-incorporated body? Did anyone counter our objection?

Jordan Carter (.nz, ccNSO): (23:53) Padmini: why are you wasting our time with these questions?

Holly J. Gregory (Sidley): (23:53) Padmini, Sharon provided you with the section from the CWG Proposal I believe

Jordan Carter (.nz, ccNSO): (23:53) it;s like going to a cooking class and asking how to lay wallpaper

Leon Sanchez (Co-Chair ALAC): (23:54) @Padmini please allow us to keep the CCWG work focused in the CCWG's work and take this discussion to the appropriate CWG list

Padmini: (23:54) Alrighty. Apologies. Still new enough to be confused.

Farzaneh Badii: (23:55) Padmini, alot of people have worked on CWG, you can ask your questions on NCSG list.

Andrew Sullivan: (23:55) What Alissa says. 1.1(d) should go away

Jordan Carter (.nz, ccNSO): (23:55) the acronyms are almost the same, but the subjects are so different :-)

Greg Shatan: (23:55) @Jordan, wallpaper paste always reminded me of oatmeal.

Padmini: (23:55) @jordan, carry on the cooking class.

Tatiana Tropina: (23:55) @Greg, it's CCWG reminds us of CWG :)

Holly J. Gregory (Sidley): (23:56) It would be helpful for someone to provide insight on the process for the CCWG and CWG to review and comment on PTI Articles and Bylaws

Padmini: (23:56) Would appreciate not being called a time waster for asking genuine doubts. I am still quite new, this is a bit deterring

Padmini: (23:56) :)

Padmini: (23:56) @everyone, thanks for pointing me in the right direction!

Jordan Carter (.nz, ccNSO): (23:56) it's the responsibility of each of us as participants to participate in the right place - good luck with it

Daniel Halloran: (23:58) @Andrew: Are you arguing that third parties should be able to haul ICANN into an IRP with a claim that the IETF Supplemental Agreement is outside of ICANN’s mission? Thanks, Dan (ICANN Legal)

Andrew Sullivan: (23:59) @Daniel: in the future, that will forever be true, and there's no way to avoid it

David McAuley (RySG): (23:59) Nice term, convergence drafting

Cheryl Langdon-Orr (CLO): (4/27/2016 00:00) Thanks Greg, well said...

Holly J. Gregory (Sidley): (00:00) Can this dilemma be solved with clarity around the process by which the not yet existing documents will be reviewed and subject to commnet by CCWG and CWG? And the community?

Rosemary Fei: (00:01) Yes, Hollly, that's what I was trying to say

Cheryl Langdon-Orr (CLO): (00:01) Yes Sam that Group on oversght has been well worthwile IMO

Rosemary Fei: (00:03) The grandfathering provisions do not require ICANN to perform anything.

Holly J. Gregory (Sidley): (00:03) We also assume that as counsel to CWG we will have an opportunity to weigh in on the PTI Articles and Bylaws and "certify" consitency with the CCWG and CWG Proposals

Holly J. Gregory (Sidley): (00:04) "consistency"

Sharon Flanagan (Sidley): (00:04) And the contract

Holly J. Gregory (Sidley): (00:04) As Sam has just confirmed.

Alissa Cooper: (00:05) I do not believe that any promises about the process can solve the issue with 1.1(d)(ii)(D).

Alissa Cooper: (00:06) On the other hand, from what Sam said, it sounds like if the communities do not want themselves to be included in this provision, they need not be.

Greg Shatan: (00:06) The only effect the "grandfathering" provisions have is to foreclose challenges to those documents (in existence as of the effective date of the Bylaws) on the basis that they violate the Mission/scope of ICANN under the Bylaws.

Steve DelBianco [GNSO - CSG]: (00:07) Agree, Greg

Alissa Cooper: (00:08) If a community would rather accept the risk of such a challenge (or doesn't believe such a risk exists), then removing the provision related to that community shouldn't be a problem.

Greg Shatan: (00:08) Andrew, then we may have a bigger problem. The flip side is that some argue that ICANN has regularly gone beyond its mission.

Jonathan Zuck: (00:10) There are means in the accountability framework to challenge these substantively but not use the framework as the basis.

Avri Doria: (00:10) on what is the suspcion that the current operational activities are out of mission based on?

Greg Shatan: (00:11) Beats me, Avri.... :-)

Matthew Shears: (00:11) I think it would be useful if Andrew and Alissa could perhaps send additional comments on this to the list - it would certainly help in terms of understanding the concerns

Cheryl Langdon-Orr (CLO): (00:11) Yes I would like to know

jorge cancio (GAC Switzerland): (00:11) +1 Mathew

Avri Doria: (00:11) But the concerns are not there, but rather those of the memo

Andrew Sullivan: (00:11) (new hand)

Holly J. Gregory (Sidley): (00:12) It seems to me that htere are two distinct problems -- one relating to existing contracts that should not suddenly be open to challenges based on a more precisely defined mission, and the other the problem on reference to agreements and bylaws that have not yet been drafted

Avri Doria: (00:12) ... not theirs ...

Pär Brumark (GAC Niue): (00:14) +1 Andrew!

Greg Shatan: (00:14) Holly -- agree that we need to discuss those two concepts separately.

Greg Shatan: (00:14) And I don't hear Andrew objecting to the first problem. Only the second. Even though he is referring to all of Section1.1(d).

Jordan Carter (.nz, ccNSO): (00:14) is there a particular reason why non existent agreements should be in this?

Jordan Carter (.nz, ccNSO): (00:14) isn't that grandchilding, not grandfathering?

John Jeffrey: (00:15) yes we are conflating the issues when we say all of D

Greg Shatan: (00:15) @Jordan, they will exist at the time these Bylaws are effective. We are drafting for that time, not for today.

Jordan Carter (.nz, ccNSO): (00:15) yes but they are being drafted after the bylaws are known, so why do you need it?

Jordan Carter (.nz, ccNSO): (00:16) they cab be drafted with the new mission in mind

Jordan Carter (.nz, ccNSO): (00:16) and we can refuse to agree them if not consistent with the mission

Greg Shatan: (00:16) Alissa is referring primarily to 1.1(d)(ii)(D) and not to all of 1.1(d).

Jordan Carter (.nz, ccNSO): (00:16) and if we cock that up, why should it not be appealable?

Brett Schaefer: (00:16) +1 Jordan, in fact they should be bound by the mission since they don't exist yet.

Avri Doria: (00:16) exactly

Jordan Carter (.nz, ccNSO): (00:16) thats why i call grandfathering cf something else

Alissa Cooper: (00:17) yes, my comments do not apply to the RA agreements.

Philip Corwin: (00:20) It would seem odd to confine ICANN within the new mission statement yet possibly permit its most important technical function, peformed by PTI under contract, be outside it.

Greg Shatan: (00:21) Not to stir up trouble, but did we discuss the grandfathering in (B), (C) and (D) in the Proposal?

Matthew Shears: (00:21) is this also an issue for CWG in so far as the contract between PTI and ICANN and the PTI bylaws have to be developed?

Mathieu Weill, ccNSO, co-chair: (00:21) Yes Matthew

Samantha Eisner: (00:21) @Rosemary, agreed

Holly J. Gregory (Sidley): (00:22) Well said Rosemary

Alissa Cooper: (00:22) If no one is allowed to challenge the agreements, then if a new agreement gets signed that is not consistent with the mission, it can never be challenged. Therefore an agreement that violates the mission will stand.

John Jeffrey: (00:22) well said rosemary

Matthew Shears: (00:22) @ Rosemary - maybe that needs to be explicit

Steve DelBianco [GNSO - CSG]: (00:22) Weel said, Rosemary

Alissa Cooper: (00:22) @Greg, not to my knowledge

Avri Doria: (00:23) is being a service provider still properly within ICANN's mission? I thought it was.

Alissa Cooper: (00:23) @Avri yes, that is what 1.1(a) says

Brett Schaefer: (00:23) But why shouldn't they be subject to challange if they might be out of mission? That is the whole point of the IRP. If the challange is without merit, it won't succeed.

Rosemary Fei: (00:23) Alissa, then the solution is to ensure that the agreements will be in mission, in the consensus view of the community

Philip Corwin: (00:23) Does the community have a right to review -- and approve or reject -- the yet nonexistent contract between ICANN and PTI? Or is it strictly a bilateral agreement?

Matthew Shears: (00:23) perhaps it needs to be explicit that this is subject to teh development of the PTI and its approval by the commuity, etc.

Alissa Cooper: (00:24) @Rosemary it is not possible to ensure that at the time when the community needs to affirm these bylaws

Holly J. Gregory (Sidley): (00:24) Yes Matthew, agreed that that would help.

Rosemary Fei: (00:25) You're right, Alissa. But I hope it's clearer that the intent was not to encourage development of agreements that would violate the mission.

Avri Doria: (00:26) but rather a fear that someone might chalenge them ass being outside. but in that case they should survive the appeal.

Holly J. Gregory (Sidley): (00:26) Alissa, if there were a provision in the bylaws that the community would have that opportunity would that help?

Jordan Carter (.nz, ccNSO): (00:27) itsnt it a requirement on icann that the agreements be negotiated consistent with the mission?

Jordan Carter (.nz, ccNSO): (00:27) which is then appealable?

Avri Doria: (00:27) yes. seems so.

Jordan Carter (.nz, ccNSO): (00:27) which can be achieved by.... leaving them out of the grandfathering... which is what makes them unappealanle

Jordan Carter (.nz, ccNSO): (00:27) unappealable

jorge villa (ASO): (00:28) hi, are you having good audio?

Mathieu Weill, ccNSO, co-chair: (00:28) yes

Brett Schaefer: (00:28) Agree Jordan and Avri, if they are in mission they will withstand challange.

Sabine Meyer: (00:28) yes, Jorge

Avri Doria: (00:28) my audio is good

Matthew Shears: (00:29) why would we wasnt to go to appeal if we can address this beforehand?

Holly J. Gregory (Sidley): (00:29) I dont understand the illusion and certainly hope that you view your lawyers as independent of any specific constituency other than CCWG

Avri Doria: (00:30) we can for the most part Matt, but you cannot prevent someone from disagreeing later. but grnadfathering something not yet born is a difficult concept to accept.

Matthew Shears: (00:30) agree Avri

Rosemary Fei: (00:31) Sorry, old hand

Brett Schaefer: (00:31) I had a question earlier -- will we be able to raise concerns on May 3 as well as today?

Andrew Sullivan: (00:31) three tries! I hate adobe!

Brett Schaefer: (00:31) Not on audio, questionin chat

Jordan Carter (.nz, ccNSO): (00:31) i have to leave adobe

Mathieu Weill, ccNSO, co-chair: (00:31) Brett, concerns can be raised until Froday 23.59 ?

Jordan Carter (.nz, ccNSO): (00:31) will be on voice only, see you all

Brett Schaefer: (00:31) Thanks

Cheryl Langdon-Orr (CLO): (00:32) Good discussion (and some pregress people... Thanks everyone Talk more enext call... Bye for now...

Lito Ibarra: (00:32) Bye and thanks

Pär Brumark (GAC Niue): (00:32) Thank you all! Have a goog Day/Night.

Mathieu Weill, ccNSO, co-chair: (00:32) Thanks everyone, and especially to lawyers !

Philip Corwin: (00:32) G'nite

Avri Doria: (00:32) bye

FIONA ASONGA (ASO): (00:32) Thanks All Bye

Matthew Shears: (00:32) thanks!

Greg Shatan: (00:32) Bye all!

Mr. Matogoro from Tanzania: (00:32) bye

Andrew Sullivan: (00:32) bye

David McAuley (RySG): (00:32) Thanks all

jorge cancio (GAC Switzerland): (00:32) bye all

nigel hickson: (00:32) goodbye; thanks

Holly J. Gregory (Sidley): (00:32) thanks!

Sabine Meyer: (00:32) bye everyone

Mr. Matogoro from Tanzania: (00:32) See you next meeting