Attendees:
Members: Alan Greenberg, Alice Munyua, Athina Fragkouli, Becky Burr, Bruce Tonkin, Cheryl Langdon-Orr, Eberhard Lisse, Finn Petersen, Fiona Asonga, Izumi Okutani, James Bladel, Jordan Carter, Jorge Villa, Julie Hammer, Leon Sanchez, Lyman Chapin, Maarten Simon, Mathieu Weill, Olga Cavalli, Pär Brumark, Robin Gross, Samantha Eisner, Sébastien Bachollet, Steve DelBianco, Thomas Rickert, Tijani Ben Jemaa, Tracy Hackshaw (27)
Participants: Adebunmi Akinbo, Akihiro Sugiyama, Andrew Harris, Anne Aikman-Scalese, Antonia Chu, Ashley Heineman, Avri Doria, Bruno Lanvin, Carlos Raúl Gutiérrez, Chris Disspain, Damien Coudeville, David McAuley, Desiree Miloshevic, Edward Morris, Emmanuel Adjovi, Erika Mann, Farzaneh Badii, George Sadowsky, Greg Shatan, James Gannon, Jeff Neuman, Jonathan Zuck, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Konstantinos Komaitis, Laurent Ferrali, Lise Fuhr, Maciej Tomaszewski, Malcolm Hutty, Mark Carvell, Markus Kummer, Maura Gambasssi, Mike Chartier, Paul Rosenzweig, Pedro da Silva, Phil Buckingham, Rafael Perez Galindo, Rinalia Abdul Rahim, Rudi Daniel, Sabine Meyer, Seun Ojedeji, Sivasubramanian Muthusamy, Thomas de Haan, Thomas Schneider, Tom Dale, Wisdom Donkor, Wolfgang Kleinwächter, Yasuichi Kitamura (49)
Legal Counsel: Holly Gregory, Ingrid Mittermaier, Josh Hofheimer, Rosemary Fei
Advisors: Jan Scholte, Willie Currie
Staff: Adam Peake, Bart Boswinkel, Bernard Turcotte, Berry Cobb, Brenda Brewer, Grace Abuhamad, Hillary Jett, Kim Carlson, Mike Brennan, Theresa Swinehart
Apologies: Giovanni Seppia, Julia Wolman, Martin Boyle, Matthew Shears, Nell Minow, Roelof Meijer, Valerie D'Costa
**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/p5yv3l1zzs8/
- The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-1100-17jul15-en.mp3
Proposed Agenda
13:00-13:30 - AoC Reviews incorporation into ICANN Bylaws
Relevant documents : Incorporation of AoC into the Bylaws – WP1 Input
13:30-14:30 – Community empowerment model: public comment 2 reference model
Relevant documents : Sidley & Adler community model document:
14:30-15:30 – Review of government input / concerns received
Relevant documents :
- GAC members input to Paris meeting
- Jurisdiction clarification draft
Notes
13:00-13:30 AoC Reviews incorporation into ICANN Bylaws
Two options for review team composition
Clarification of language on the scope of the ATRT review and on OECD guidelines
Participation in the review teams: particular interest from the commercial side of GNSO
Options for populating the review teams: open membership with normalized voting; fixed number of members with each SO/AC providing a set number of members.
The IANA functions review is a CWG dependency and has been incorporated.
Question about timing: staggered timing to avoid overload of work, and particularly the requirement on the Board chair
Has the current AoC model been considered?
The current model has no diversity requirement and no limit on numbers. Change suggested for the community to designate rather than chair of the Board and the GAC. This option published in the first public comment.
The proposal includes a recommendation for an annual report on the status of implementation.
Suggestion about prioritisation of recommendation will be considered by WP1 as either WS1/WS2.
Consideration that the smaller the review team the more effective the group tends to be. And not intended as fundamental, except for the IFR.
Suggestion to include the Board included as one of the selection bodies. The size should be reduced.
Prioritisation requires more information than has been available to past ATRTs. Members suggest they tried, but were not able to prioritise.
No object to option 2, compared to the others. Use the AC room.
Can we launch the text case of bylaws drafting based on the AoC section?
About access to all documents. And the review team members shall not disclose sensitive and confidential information, but not at ICANN's sole discretion to decide what is sensitive and confidential.
The issue is broader than nondisclosure, there may be competition issues. Note, need to refine this part of the requirement, with a call to help WP1 on this.
13:30-14:30 – Community empowerment model: public comment 2 reference model
Concerns about SO/AC becoming legal persons
Exercise of statutory rights to dissolver ICANN
Derivative powers
The potential for capture by members that taken on membership.
The community mechanisms as the sole member. The group of participants acting together to exercise rights in ICANN. Would be the sole member, done through the bylaws. Not every person participating in a community mechanism has to vote: some can listen, advice or vote.
The SO/AC, act within there internal mechanism. Insert votes into the community mechanism as needed. The legal entity shields them from liability for actions of the member body. The sole member is a member of ICANN an is shielded from liability from actions by ICANN.
The sole member would communicate to the Board.
Need at least 2 people, to be there as the legal participants.
The bylaws provide the voting rights and mechanisms by which they votes. If the community mechanism ignored the voting threshold, then there would be the IRP, legal rights and trust.
Other logistical requirements with members, such as holding an AGM, voting to accept the financial reports, bylaws approval etc. The statutory rights chart lists all that should be addressed in the bylaws.
Relatively light set of rights: hold a meeting, to amend bylaws, and the board independently can amend.
Composition of the "community council" sole member. Is it possible to add new SO/AC.
Then community mechanism would be made up of the SO / AC and individuals who would not vote. Requests to participate would be a decision of the participants in the community mechanism.
The legal entity shield all participants: the limited liability extends to shielding what goes on inside the sole member. It has no fiduciary duties, cannot be sued for those.
Some participants in the sole membership may have person hood, some will not. Concerned that some scenarios, may give those that have personhood advantage. But cannot think of such examples.
Any difference in anti-trust exposure between the models? Don't see a distinction between the three models.
Can the SO/AC set up different voting thresholds, for example to exercise statutory: within the sole member model can draft different thresholds etc.
Designator model: the appointing body must approve removal, can this be applied to the sole member model? Yes, can be built in.
Not supporting the designatory model, relies too heavily on recall of the Board, which is too disruptive.
Supporting the designator model, which represents the least change to the organisation, greatest stability.
Concern with the sole member model, that it has many open questions.
Comment: see anti-trust risk in coordinated actions within sole member. Response; the sole member approach would require agreement by all the parts of the sole member, and the diversity in that group should protect against anti-trust concerns.
Is there anything to stop the sole member from incorporating outside ICANN? Response, changing its personhood could be prevented by adding to the articles to prevent it changing it's status without Board approval.
New participants: need to build into the bylaws.
Recalling hearing 'Participation in the sole member is equivalent in participating in ICANN' why the sole member essential? Response: the counter balance to a board driven or controlled entity is a membership. It's the common structure for controlling the board: electing, removing g the board and a set of reserved powers.
Support for the empowered designator model: The potential power of a limited number of SO/AC joining the sole member and having the ability to dissolve the corporation and other powers.
Could this concern be addressed by voting thresholds?
An advantage of sole member model, the sole member will be directed by the community, and could make this unanimous or unanimous plus the Board. Feel can control for this concerns.
Wild card objection from Eberhard.
Grave concerns by Sam.
Hopefully Alan's concerns removed. Feel there is traction for the sole member model. Objections, please make selves heard.
Please channel through the co-chairs to the lawyers. Who will answer tomorrow? Avoid confusion using this method vi the chairs. Send as soon as possible or close of the meeting today
Documents Presented
WP-1-questions-AOC-reviews-in-bylaws.pptx
Revised_ Empowered SO_AC Membership & Designator Models with CM as Sole....pdf
CCWG-Draft compilation of major trends in the GAC comments to the Paris meeting.pptx
22. CCWG and jurisdiction V4.pdf
Chat Transcript
Brenda Brewer: (7/17/2015 04:17) Welcome to CCWG ACCT Meeting # 41, Session 3 on 17 July! 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
Brenda Brewer: (04:18) Lunch Break - Session 3 will begin at 13:00 CET.
nigel hickson: (05:01) Watinig ):
Malcolm Hutty: (05:19) isn't Option 1 like this CCWG? is this CCWG unworkable?
Jordan Carter (.nz, ccTLD member): (05:20) I think that would be a matter of interpretation...
Paul Rosenzweig (Heritage): (05:22) +1 Bruce
Grace Abuhamad: (05:22) document is unsynced so that you can scroll
Avri Doria: (05:23) in the last ATRT we talked about prioritization but were unable to do that. plus part of proiritiation is ease of implementation.
Carlos Raul: (05:24) Annual staff reports on all (4) aspects ACCT & Transparency ahoul be the stepping stone a a new culture of ACCT
Jordan Carter (.nz, ccTLD member): (05:25) I have a vague preference for Option 2, to share that with the group
Bruce Tonkin: (05:25) My point is that review teams will come up with a set of requirements for improvement. The larger we make these groups the more requirements will be generated. AS long as requirements don't conflict - I expect they will be addeed to the list. I think the real channenge is to pioritse these requirements.
Jordan Carter (.nz, ccTLD member): (05:26) Sam's logic is part of why I have a pref for #2
Edward Morris: (05:28) I'm not a big fan of baking specific numbers into the Bylaws. Bylaws should be flexible and designed to last over time. For that reason I'd prefer either option 1 or the May 3rd proposal.
Jordan Carter (.nz, ccTLD member): (05:28) Bruce, did you have a specific idea in mind about the basis for such a prioritisation process?
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (05:29) agree with,tgh you absolutely @Edward
Jordan Carter (.nz, ccTLD member): (05:29) Alan: do you specifically propose to add the board Chair to the group making the selections?
Jordan Carter (.nz, ccTLD member): (05:29) their participation is already provided for (and Rinalia's suggestion to have "or nominee" is taken on board
Alan Greenberg: (05:30) @Jordan, yes, that was what I was suggesting.
Jordan Carter (.nz, ccTLD member): (05:30) cool, ta
David McAuley: (05:32) Post-lunch audio cutting out much more frequently here – anyone else experiencing that?
Jan Scholte: (05:32) So we are not at this stage considering inclusion of SOs and ACs in the scope of ATRs - adding an (f) to the list?
Keith Drazek: (05:33) I believe Steve C.'s concerns were not about incorporating the Whois Review, rather, he was concerned about including the language restricting the scope of the Whois review, to limit the opportunity for an evolution of Whois.
Mathieu Weill: (05:34) @Jan : this morning we discussed that the SO/AC reviews were a separatekind of review (structural)
Alan Greenberg: (05:35) @Steve, I tend to disagree. I beleive we could alter the wording to make sense and it would not be controversial. The next ATRT will NOT have the knowledge to do that better than this community now.
Jan Scholte: (05:35) @Mathieu. Talk was circulating in WG3 that SO/AC accountability would be incorporated into ATRs, but maybe that is superseded now
Steve DelBianco [GNSO - CSG]: (05:36) @Alan -- by all means please suggest new text
Bruce Tonkin: (05:36) I agree with your comment about WHOIS@Avri. Now is not the time to try to remove this. WHen a new version of registrant direftory is in place it can be reviewed then.
Rinalia Abdul Rahim: (05:38) @Jan & Mathieu - SO/AC accountability as part of the ATRT Review would provide a horizontal view across all orgs/structures at one point in time., as opposed to the org/structural review that would be done one at a time.
Sébastien (ALAC): (05:38) What are the proposal taken into account?
Sébastien (ALAC): (05:38) From the discussion
David McAuley: (05:39) tremendous lag on adobe tick
Jordan Carter (.nz, ccTLD member): (05:39) Steve delB has been taking notes, he and I will cross check them and hopefully put an email out on the list
Jan Scholte: (05:40) @Mathieu and Rinalia. That is my understanding, that it was not an either/or but that SO/AC accountability would be incorporated in both.
James Gannon [GNSO-NCSG]: (05:42) I would reccomend looking to confidential disclusre provisions rather than non disclosure provisions, they are probably more appropriate
James Gannon [GNSO-NCSG]: (05:42) When looking for background that is
Steve DelBianco [GNSO - CSG]: (05:42) @Avri -- are you good with adding Board to the Option 2 team? 1 member or 3?
James Gannon [GNSO-NCSG]: (05:44) That can be covered in a condifential disclosure agreement Sam it happens all the time
Avri Doria: (05:44) Sev, i tink not having a Board member was an oversight. i do not see them adding 3.
Avri Doria: (05:44) i meant Steve: ....
Jordan Carter (.nz, ccTLD member): (05:45) Chris: it's not about the ATRT review - this is in the chapeau so that it would apply to all the reviews
Samantha Eisner: (05:46) I just want to be clear that at some points, even giving certain parties access to information could pose a risk of release of commercially sensitive information. IThis is bigger than pricing information, and could impact many areas
James Gannon [GNSO-NCSG]: (05:46) We are not putting the CDA into the bylaws though, that is an implementation issue that can be solved, and is done in commercial world regularly
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (05:48) and the use of trusted third parties' to handle
Steve DelBianco [GNSO - CSG]: (05:48) @James -- thanks. Will look to you for help proposing a model on NDA
James Gannon [GNSO-NCSG]: (05:51) @Steve will assist where I can, havent drafted any CDAs but have been party to many of them, they are extremely common in the security world.
Jordan Carter (.nz, ccTLD member): (05:51) tis a reason the text in the heading bylaw did not say "ALL" documents..
James Gannon [GNSO-NCSG]: (05:51) Exactly Jordan
Phil Buckingham: (05:52) James +1 - lets us discuss with Steve
Jordan Carter (.nz, ccTLD member): (05:52) establishing a presumption of openness is I think the idea
Avri Doria: (05:52) one thing i think i really like about the CMSM is that it turns the nomcom into an actual nomcom as the CMSM is the one that appoints based on their nomination.
James Gannon [GNSO-NCSG]: (05:53) Avri so that would solve the nomcpm director recall issue aswell correct?
Jordan Carter (.nz, ccTLD member): (05:53) +1 Avri
Steve DelBianco [GNSO - CSG]: (05:53) Rosemary is desribing a permanent CCWG, in a way
Sivasubramanian M phone: (05:53) If the Community becomes a sole member how does the Community attain a singular voice in a manner legally incontrovertible?
Avri Doria: (05:55) SM, either by consensus or by vote?
Jordan Carter (.nz, ccTLD member): (05:55) through the process it sets out in the bylaws
Paul Rosenzweig (Heritage): (05:56) @ Steve -- exactly right. This, essentially, institutionally makes the CCWG permanent and gives it whatever community powers it is that we settle one
Avri Doria: (05:56) Does it have to be a vote, can't it work by consensus?
Jordan Carter (.nz, ccTLD member): (05:56) I'd imagine it can
James Gannon [GNSO-NCSG]: (05:56) Would the CMSM acting by consensus have any issues legally?
Jordan Carter (.nz, ccTLD member): (05:56) and then can revert to a vote
James Gannon [GNSO-NCSG]: (05:56) ^^
Jordan Carter (.nz, ccTLD member): (05:56) if required
Jordan Carter (.nz, ccTLD member): (05:56) if that's what we set out in the bylaws
Jordan Carter (.nz, ccTLD member): (05:57) the ccNSO Council works a bit like that so far as I can tell - it formally has votes, but actually it seems to do things by consensus
Keith Drazek: (05:58) Apologies if this is a question for later. In the CMSM model, is there any benefit to having multiple votes/seats for each SO/AC, or would each SO/AC just have a single vote to activate the CMSM? Do we need weighted voting under the CMSM?
Leon Sanchez (Co-chair ALAC): (05:59) @Keith we will go into that later in the agenda today
Keith Drazek: (05:59) Ok, thanks Leon.
Paul Rosenzweig (Heritage): (05:59) @Co-Chairs .... I was going to ask Keith's question -- more broadly what is the internal structure of the CMSM? Is it required by law or up to the members themselves
Mathieu Weill: (05:59) @Paul up to us, and it's a dedicated agenda item
Samantha Eisner: (06:00) So the actions of the CMSM could be challenged through the IRP? Is that what I just heard Holly say?
Steve DelBianco [GNSO - CSG]: (06:00) @Keith -- I think we need either multiple votes or fractional votes per AC/SO, so that split votes could be registered. In GNSO, for example, the contract parties might vote differently than non-contract parties
Sivasubramanian M: (06:03) We have an established convention within the Community to respect rough consensus. When such a rough consensus or even a majority opinion moved up as a single opinion for the purpose of a major decision, to what extent would that single opinion be legally valid, especially when there is a challenge by those who are excluded from the Internal community vote challenge the Community opinion as a single member's position?
Maarten Simon, SIDN: (06:04) so in the bylaws of ICANN we can arrange the internal governance of its member ?
Sivasubramanian M: (06:04) Avri, that was my question.
Samantha Eisner: (06:05) Going back to our earlier conversation about groups electing not to participate in the sole membership model, or if the community model was somehow otherwise captured, then those controlling participants would have a lot of statutory power over ICANN, with no other formal members to challenge them. That seems a risky situation.
Sivasubramanian M: (06:05) And even to attain a reasonably valid opinion, the internal community process requires formal votes within, which could reduce the community process as a process to participation only by elected or formal community members
Izumi Okutani (ASO): (06:05) I share the support expressed by Mark - designators and a single member are the options to explore
Becky Burr: (06:06) they don't have to decide to be "part" of the community mechanism - they decide whether or not they want to participate in the mechanism
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (06:06) I agree absolutely on those two being the ones we need to consider YES
Sivasubramanian M: (06:08) One way of considering a sole member is to make the sole member a singular parliament like body
Anne Aikman-Scalese: (06:08) Although SOs and ACs currently "participate" in ICANN, they are not part of the ICANN legal person. If they vote in the new legal person that is the CMSM, it seems to me that is becoming a part of a legal person, not advising a legal person. Can outside counsel please clarify the difference between advising a legal person and being part of a legal person?
Sivasubramanian M: (06:09) i.e one way of making the sole member legally acceptable in a manner incontrovertible
Seun Ojedeji: (06:10) Can the url of document currently displayed be shared
Anne Aikman-Scalese: (06:11) Could the GAC remain outside CMSM and either advise the CMSM or just continue to advise the Board?
Becky Burr: (06:11) @ Anne - yes, absolutely
Seun Ojedeji: (06:11) @Staff can you share the url to the document currently displayed or send it to the list
Grace Abuhamad: (06:12) Here you go @Seun : https://community.icann.org/download/attachments/54690279/7.%20%20Revised_%20%20Empowered%20SO_AC%20Membership%20%26%20Designator%20Models%20with%20CM%20as%20Sole....pdf?api=v2
Seun Ojedeji: (06:13) Thanks Grace
Grace Abuhamad: (06:13) It's on the reading list
Lyman Chapin: (06:13) A few minutes ago Rosemary said "participation in the sole member is equivalent to participation in ICANN" - so do we end up with an accountability issue for the CM that is roughly the same as the one we currently have with ICANN?
Phil Buckingham: (06:14) Holly - are we assuming we are using California corporate law for sole membership model
Anne Aikman-Scalese: (06:14) If GAC stays outside CMSM however, it will not have the member statutory powers I think because only the member has the statutory powers according to the presentation.
Josh Hofheimer (Sidley): (06:14) @Phil, yes CA law
Mark Carvell GAC - UK Govt: (06:14) Comparative simplicity of CMSM is attractive. For governments I expect the issue of possible support for it, will resolve if GAC can provide advice on public interest aspects for which (as currently under the bylaws) it has prime responsibility in the community before the CMSM takes a vote and takes decision.
Anne Aikman-Scalese: (06:15) @Phil - yes as to CA law
Phil Buckingham: (06:15) @ Holly , are we assuming we are using a california corporate law for the sole member model . What of minority rights
Alice Munyua (GAC): (06:15) Agree with Mark
Paul Rosenzweig (Heritage): (06:15) @Alice/Mark -- so a perfect solution!
Sivasubramanian M: (06:15) Including those who do not wish to participate could raise quorum issues
Keith Drazek: (06:16) If the Co-Chairs are looking for statements of preference among the 3 proposed models, I'm impressed by the elegance of the CMSM model, and very much appreciate the way it bridges the concerns raised with the voluntary and membership proposals.
Leon Sanchez (Co-chair ALAC): (06:16) We have elagant lawyers that design elegant solutions @Keith ;-)
Becky Burr: (06:17) @Anne - yes, the GAC needs to decide whether or not it wants to participate in the community mechanism. Doesn't have to decide now, of course, it could have the right to do so in the future if it decides that makes sense
Keith Drazek: (06:17) And I really like the way it requires the community to work together to identify instances where the powers would be activated.
Bruce Tonkin: (06:17) Yes - I also lean towards the sole member model as well. It is the simplest model I have seen so far.
Bruce Tonkin: (06:17) THis is just a personal view.
Thomas Rickert, CCWG Co-Chair: (06:17) Alan, which model do you prefer / rule out?
Seun Ojedeji: (06:18) The way i understand CMSM the member power will be excercised by those who are selected in CMSM i.e a community council is this no longer the case?
Becky Burr: (06:19) and remember, ICANN itself is a California corporation
Bruce Tonkin: (06:19) The model seems to allw the GAC to participate as an advisory committee - presumably via ionstrucuting their chair to convey their view to the CMSM.
Sivasubramanian M: (06:19) The biggest plus point of the membership model is tha ability of the member(s) to participate without threat of legal liability
Becky Burr: (06:19) yes, it permits the GAC to participate through advise and, if it desires, through voting
Becky Burr: (06:20) advise to the community mechanism
Sivasubramanian M: (06:20) This in a sense off-sets the criticism pertaining to ICANN's operations under California Law
David McAuley: (06:20) The CMSOM model is elegant, as Keith says, and I join Bruce in stating personal preference for it
Seun Ojedeji: (06:20) When we say "sole member" which SO/AC will act as the sole? or are we referring to a "community council" like setup?
David McAuley: (06:20) CMSM, that is
Becky Burr: (06:20) Seun - no SO/AC is the member - the collective mechanism itself is the member
Josh Hofheimer (Sidley): (06:21) @Seun, Community Council like set up.
James Gannon [GNSO-NCSG]: (06:22) I'll add my 'participants' view on a preference for the single member the more i learn about it the more powerful a vehicle and more empowering to the community it appears to be
Seun Ojedeji: (06:23) @Becky thanks for that clarification. This is looking interesting then. So if i may ask, does the community council gets attached to the respective leaderships of various SO/AC? I am particularly concerned about the accuntability of the community council
Becky Burr: (06:24) yes Seun - the participants from each SO and AC are selected by and accountable to their respective SO and AC
Paul Rosenzweig (Heritage): (06:24) As another participant, I join James in trending toward the single member model. It has enough flexibility to accomodate the GAC non-participation concerns; to allow dissenters like ALAC to bennefit without participation; and nonethelless hasthe basic minimum of enforceability (capability of suit by virture of legal personhood) and budgetary control.
Farzaneh Badii: (06:26) Hi Seun, I believe we discussed the accountability of council in detail even when Chris brought it up a couple of months ago . There are solutions for that and it seems quite easy.
James Gannon [GNSO-NCSG]: (06:26) +1 Rosemary thats one of the elegances of this solution
Phil Buckingham: (06:27) @ holly @ josh - what of the veil of incorporation / separate legal entity .issues We need. compare to UK , German corporate law requirements. .
Jordan Carter (.nz, ccTLD member): (06:27) Seun, we have some answers to some of those questions in the session at
Jordan Carter (.nz, ccTLD member): (06:27) at 3.45pm
Seun Ojedeji: (06:27) Okay @Becky thanks for clarifying that. On that note, how then do we ensure the accountability mechanisms of respective SO/AC representative are strong enough. i.e Will the "council" have a general accountability requirement that must be achieved by the respective SO/AC?
Seun Ojedeji: (06:27) Okay @Jordan thanks
Seun Ojedeji: (06:29) @Farzaneh i think a lot has been discussed so i may have missed that. I am getting more interested now that we are considering this "council" in a membership model. Need to be sure its not going to be another ICANN board like group
Keith Drazek: (06:30) Setting aside the GAC's unique situation, I don't see why any SO or AC would not participate in the CMSM model.
Jordan Carter (.nz, ccTLD member): (06:30) it wouldn't be board like in the sense that it has a very narrow set of rights/powers
Jordan Carter (.nz, ccTLD member): (06:31) I think the biggest participation barrier is in the Empowered SO AC Membership model
Jordan Carter (.nz, ccTLD member): (06:31) because of the need to have legal persons
Seun Ojedeji: (06:32) @Jordan does this mean the CMSM also require the legal personhood as well? So how practical is it for non-members(SO/AC) to remove CMSM members?
Jordan Carter (.nz, ccTLD member): (06:33) because it sets out how they are appointed in the bylaws
Greg Shatan: (06:33) Keith, I think the GAC would still participate, but the question is how (voting vs. advisory).
Jordan Carter (.nz, ccTLD member): (06:33) so it's the same problem as how you can appoint a chair of an SO today
Jordan Carter (.nz, ccTLD member): (06:33) if that is a problem it's a problem we face today
Keith Drazek: (06:34) Agreed Greg.
David McAuley: (06:34) one hand clapping, Avri
Sivasubramanian M: (06:35) Yes T shirts for single member model if the single member could. at the internal level, respect the present level of participation and rough consensus
Samantha Eisner: (06:36) I think that this question cuts across any of the models where we look to the community to reach consensus on exercise of powers, but if we were to have advisory committees like the GAC or others in an advisory roles, what would the obligation be of the community group to consider that advice in its deliberations?
Seun Ojedeji: (06:36) @Jordan i think i may be mixing this up. Maybe i should recap. Individuals within SO/AC would populate CMSM. However we know that the ICANN board at the moment is populated by SO/AC as well but we indicated that removing ICANN board would require SO/AC becoming designator/member to be able to do that. Isn't that going to be the same requirement for CMSM once that group is formalised?
Jordan Carter (.nz, ccTLD member): (06:37) the CMSM itself would be the legal person
Jordan Carter (.nz, ccTLD member): (06:37) the members of that legal person don't need to be legal persons
Greg Shatan: (06:37) Seun, the ICANN board is not populated by SO/AC members or representatives.
Jordan Carter (.nz, ccTLD member): (06:37) it would enact the removal decisions of the appointing SOs/ACs etc, without them having to become legal persons
Sivasubramanian M: (06:37) If the California Law has a membership model that allows a single member, who is recognized as a member without any specification as to how he arrives at his "single" opinion, and does not care if the single member as a Community has a voting process in place or not, then the single member model is wonderful, provided, the Community evolves a rough system to arrive at a balanced opinion
Jordan Carter (.nz, ccTLD member): (06:38) Siva: my understanding is that that is precisely what is possible
Seun Ojedeji: (06:38) @Greg the ICANN board is populate by the community (SO/AC) yes for nomcom not directly but nomcom is also composed of the SO/AC
Farzaneh Badii: (06:38) so if IRP award is not enforced or complied with, can it be enforced by court? and who should start the process? the council?
Greg Shatan: (06:38) But not by members or representatives.
Sivasubramanian M: (06:38) Jordan Carter, excellent
Sivasubramanian M: (06:38) T Shirts, then
Seun Ojedeji: (06:39) @Jordan thanks for clarifying that i hope what you said is the legal view as well?
Thomas Rickert, CCWG Co-Chair: (06:39) Ed, what's your preference?
Edward Morris: (06:40) I can live with either of the membership models, provided we can get Inspection rights set at a fairly low threshold.
Sivasubramanian M: (06:40) A contrary question: What happens in situations where the sole member is wrong but the board is right?
Edward Morris: (06:40) in the sole member model.
Jordan Carter (.nz, ccTLD member): (06:41) Seun yes that's what the lawyers just mentioned
Keith Drazek: (06:41) @Siva, isn't the IRP anticipated for resolving conflicts?
David McAuley: (06:42) Good discussion, thank you Thomas for managing the queue as you did
Seun Ojedeji: (06:42) @Greg not sure i got your point, perhaps if you quote the section of my statement that gave you that impression it could help.
Greg Shatan: (06:42) Siva, how do you define "right" and "wrong"
Sivasubramanian M: (06:42) Keith, take the example of a sitation where the sole member wants a Board Member removed, or an ICANN decision taken or repealed. The Board could go to IRP only after the damage is done, and what would the Board plead from IRP? Damages from the Community?
Sivasubramanian M: (06:43) What we need is a way for Board to stand its ground in situations where it is right
Jordan Carter (.nz, ccTLD member): (06:43) Seems to me it'd be much more disruptive to rely on sacking the board, than to make some technical changes to ICANN's governing documents.
Jim Prendergast: (06:43) exactly
Sivasubramanian M: (06:43) Greg, that is really difficult, I need to find alternate words or write longer sentences
Becky Burr: (06:44) that is the problem that is solved by ensuring that ICANN stays within its MISSION Sam
Farzaneh Badii: (06:44) As a participant (who actually participated) I support the sole member model.
Keith Drazek: (06:45) The attractiveness of the sole member model is that it relies on the cooperation and consensus of the community.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (06:46) agreed @Keith
Greg Shatan: (06:46) As another "recovering" antitrust lawyer, I agree with what Holly just said.
Keith Drazek: (06:46) Shared authority between Board and Community AND shared authority WITHIN the community.
Alan Greenberg: (06:47) Keith, that is no different from the Empowered designator and the "council" or whatever it uses to exercise its power.
Greg Shatan: (06:47) Siva, I think right and wrong here will be matters of judgment, not easily defined as universally right or universally wrong.
Sivasubramanian M: (06:48) Greg, That i exactly what I am trying to convey. The Board, entrusted with certain responsibility, should be in a position to exercise judgement in situations where there is a contrary communithy opnion
Jordan Carter (.nz, ccTLD member): (06:48) The point Sam has just made is wrong, because new constituencies joiing would become part of the member, its voting rights woult no change
Jordan Carter (.nz, ccTLD member): (06:49) woah sorry for my terrible spelling
Sivasubramanian M: (06:49) And the community should also respect the Board's judgement to some extent, and to this end, we may need to focus on having a Board with members of sound judgement
James Gannon [GNSO-NCSG]: (06:49) @Jordan i think she was thinking about new SOACs specifically
Greg Shatan: (06:49) Siva, I hope we do that already.
Becky Burr: (06:51) the new participants issue is not unique to anything we are talking about. All SOs and ACs are reflected in the bylaws today. If we are going to have a new SO/AC, it is highly likely that we would need bylaws changes anyway
Greg Shatan: (06:51) I think the new participants issue is a non-issue; easy enough to draft for.
Greg Shatan: (06:52) Becky, excellent point.
Paul Rosenzweig (Heritage): (06:52) The designator model is not clear and simple -- it is actually the most complex because it mutates over time
Sivasubramanian M: (06:52) Greg, please explain "we do that already" do you mean, we have a board with members of sound judgeat ment already, or that the community already respects board's judgement? Both statements are true to a basic extent, the accountrability process needs to enhance it
Paul Rosenzweig (Heritage): (06:55) @ Chris -- I don't think that is a good characterization of Ed's point. I think his point is the more nuanced one that certain powers (e.g. power of board removal or budget veto) are more likely to be significant to the corporation, whil others, like the power of inspection of documents or a request for a reconsideration) are more procedural in naturel It makes sense to me that different powers, with different consequences, and different interests can have different threshholds
Anne Aikman-Scalese: (06:56) The question Chris raises also raises the question whether the CMSM will need legal advice independent of the legal advice to be given to the Board - and this on an ongoing basis and built into the budget.
Seun Ojedeji: (06:56) Still on CMSM do i get it that CMSM members will not be empowered to do anything unless the SO/AC formerly ask them to? I don't want to take lightly the capture posibility with CMSM since it seem it will be the main power source of the community. Is it really possible for SO/AC to challenge un-directed move from the members of CMSM
Seun Ojedeji: (06:56) Here is the part that scares me: Need provisions to:- set up community mechanismas sole member- alter director selectionprocess so CMSM electsdirectors- address membershipstructure with one member
Sivasubramanian M: (06:57) not only in situations where the member's directive leads to a fiduciary violation by board, but also in situations where the Board judges certain action necessary/undesirablr
Jordan Carter (.nz, ccTLD member): (06:57) Seun: I think we will be leaving the decisions to SOs and ACs - the would have to either say "our appointee/s have the right to cast the votes" or "they have to vote X on issue A" - but either way it would be transparent
Malcolm Hutty: (06:57) very helpful from Rosemary
Sivasubramanian M: (06:57) ... e to preserve global public inerest, the Board needs to have some room to differ with the single member
Jordan Carter (.nz, ccTLD member): (06:58) it has lots of room to do that -- it governs the corporation and does all the things the board of directors does
Sivasubramanian M: (06:58) what I wrote above is broken into two paragraphs, may please be read together
Jordan Carter (.nz, ccTLD member): (06:58) exercising any powers against that will involve high thresholds
Jordan Carter (.nz, ccTLD member): (06:59) Seun: why do those things scare you, that bylaws drafting stuff?
Becky Burr: (06:59) it isn't an integration of the SOs and ACs - the SOs and ACs participate in the mechanism
Jordan Carter (.nz, ccTLD member): (06:59) I'm changing to Orange. There is too much green in the room.
Seun Ojedeji: (07:00) @Jordan the fact that board members are now elected by CMSM an the fact that only those specific people have the power in practice. However you seem to be assuring me that SO/AC will have total control on that group of people.
Chris Disspain: (07:00) Seun..Board members would NOT be elected by the CMSM
Seun Ojedeji: (07:01) @Chris, i saw this in the document: - alter director selectionprocess so CMSM electsdirectors
Paul Rosenzweig (Heritage): (07:01) Good on you Jordan ... but why not pink?
Becky Burr: (07:01) I think it's analogous
Jordan Carter (.nz, ccTLD member): (07:02) Too stereotypical, Paul
Seun Ojedeji: (07:03) Please refer to page 22 of the current document. "as sole member- alter director selection process so CMSM elects directors"
Seun Ojedeji: (07:03) @Brenda i just lost audio
Seun Ojedeji: (07:03) can i be redialed
Jordan Carter (.nz, ccTLD member): (07:03) Seun, the only suggestion I had seen was that the CMSM would be the legally enforceable tool to enforce director appointments if the current, usual process, didn't work - that is, the current process would contniue, and the CMSM would validate/endorse it, not second guess it
Chris Disspain: (07:03) I believe that what would happen is that the ccNSO would elect a director and instruct the CMSM to tell the bpard to appoint them
Jordan Carter (.nz, ccTLD member): (07:04) like Chris said
Chris Disspain: (07:04) and the ccNSO would also instruct the CMSM that the ccNSO director should be removed
Keith Drazek: (07:04) @Alan, why would any SO or AC not participate in the CMSM model?
Jordan Carter (.nz, ccTLD member): (07:04) the scenario that Alan is discussing is utterly implausible.
Chris Disspain: (07:05) Jordan...nothing it utterly implausible
Jordan Carter (.nz, ccTLD member): (07:06) nothing is "completely" implausible :-)
Sivasubramanian M phone 2: (07:06) +1 Alan on the reservation s ccNSO + GAC and other possible situatios
Seun Ojedeji: (07:06) Okay that could be fine then and this is again hoping that the CMSM CANNOT unilateraly make the decision and when they do it will not have any effect because the ICANN board will have the power to refuse?
Lyman Chapin: (07:06) @Keith that was the gist of my return to Rosemary's "participation in the sole member is equivalent to participation in ICANN" - participation doesn't change for the SOs and ACs
Paul Rosenzweig (Heritage): (07:07) Chris -- too many TLAs
Seun Ojedeji: (07:07) I don't think we should be talking about redress with CMSM we just should ensure that they cannot make a unilateral decision
Lyman Chapin: (07:07) CMSM is therefore essentially a corporate organizational change that introduces the accountability feature of "having members" (in this case just one member)
James Gannon [GNSO-NCSG]: (07:08) Its plausible that I become a trillionaire and reinvent the internet under my personal disctatorship, I dont believ its any less plausaible than the GNSO and ccNSO dissolving ICANN
Jordan Carter (.nz, ccTLD member): (07:08) its the same sort of method we have talked about for all th epowers - thresholds would apply to anything this group wanted to do
David McAuley: (07:08) Agrfee withthat Lyman
Jordan Carter (.nz, ccTLD member): (07:08) thsi suggestion of making such "outrage" powers, a) unanimous and b) requiring the Board to agree
Jordan Carter (.nz, ccTLD member): (07:08) certainly helps deal with that
James Gannon [GNSO-NCSG]: (07:09) *applause for holly and rosemary*
Seun Ojedeji: (07:09) @Jordan thanks thats relieving
Jordan Carter (.nz, ccTLD member): (07:09) Great call to let this session run over time, co-chairs
Keith Drazek: (07:10) Can staff please re-post the link to the Legal slides currently displayed?
Robin Gross [GNSO - NCSG]: (07:10) and the link to the statutory rights
Robin Gross [GNSO - NCSG]: (07:10) please
Seun Ojedeji: (07:11) https://community.icann.org/download/attachments/54690279/7.%20%20Revised_%20%20Empowered%20SO_AC%20Membership%20%26%20Designator%20Models%20with%20CM%20as%20Sole....pdf?api=v2
Seun Ojedeji: (07:11) Thanks and bye
Keith Drazek: (07:11) Thanks Seun!
Sébastien (ALAC): (07:11) You will be nice to ask all the members
Sébastien (ALAC): (07:11) co-chairs please
Josh Hofheimer (Sidley): (07:12) How long is the coffee break?
James Gannon [GNSO-NCSG]: (07:12) 15/20mins
David McAuley: (07:12) Grace, Adam, we now have over 90 participants as sun rises in the Americas and the audio cutting out much longer and more frequently – any way to bump up adobe room robustness
Sivasubramanian M: (07:12) The danger in rushing into "Community Empowerment" is this: What if the community is not balanced? What if the community is captured by Government or a select cartel of interests (not implying that one exists now)? And worse, what if the community is not mature enough? The prerequisites for community empowerment is to broadband the community, balance it and allow time for the community to mature (please don't take this word in a very negative sense). Until then, it is necessary to have a model that does not drastically alter the status quo.
Sivasubramanian M: (07:13) no audio for a moment
nigel hickson: (07:14) Sound of silence...
Kimberly Carlson: (07:14) Correct, coffee break for 15
Sivasubramanian M: (07:14) Kimberly, thanks.
Kimberly Carlson: (07:14) certainly
Sivasubramanian M: (07:14) i am also having coffee.
Jeff Neuman (Valideus): (07:15) Sorry to jump into this so late, but is there a full written explanation of the Community Mechanism as Sole Member Model. The slide is just not enough information to get a grip on it and this seems like a departure from the models discussed in BA. Thanks
