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, Andrew Harris, Anne Aikman-Scalese, Antonia Chu, Ashley Heineman, Avri Doria, Bruno, Lanvin, Chris Disspain, Damien Coudeville, David McAuley, Desiree Miloshevic, Edward Morris, Emmanuel Adjovi, Erika Mann, Farzaneh Badii, George Sadowsky, Greg Shatan, James Gannon, Jonathan Zuck, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Konstantinos Komaitis, Laurent Ferrali, Lise Fuhr, Maciej Tomaszewski, Malcolm Hutty, Mark Carvell, Markus Kummer, Maura Gambassi, Mike Chartier, Paul Rosenzweig, Pedro da Silva, Phil Buckingham, Rafael Perez Galindo, Rinalia Adul Rahim, Sabine Meyer, Seun Ojedeji, Sivasubramanian Muthusamy, Thomas De Haan, Thomas Schneider, Tom Dale, Wisdom Donkor, Wolfgang Kleinwaechter (44)
Advisors: Jan Scholte, Lee Bygrave, Willie Currie
Legal Counsel: Holly Gregory, Michael Clark, Rosemary Fei, Stephanie Petit,
Staff: Adam Peake, Bernard Turcotte, Berry Cobb, Grace Abuhamad, Hillary Jett, Kim Carlson, Mike Brennan, Theresa Swinehart
Apologies: Giovanni Seppia, Julia Wolman, Martin Boyle, Matthew Shears, Nell Minow, Seun Ojedeji, Roelof Meijer, Valerie D'Costa
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
- Transcript CCWG ACCT #42 Session 1_18 July 2015.doc
- Transcript CCWG ACCT #42 Session 1_18 July 2015.pdf
Recording
- The Adobe Connect recording is available here: https://icann.adobeconnect.com/p3yjvac0pqe/
- The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-1-18jul15-en.mp3
Proposed Agenda
08:30-08:45 – Debrief day 1 progress and identify day 2 roadmap Relevant documents : - Agenda of Paris F2F meetings (Day 1 meeting ; Day 2 Meeting)
08:45-09:45 – Community empowerment model - public comment 2 reference model (if needed) Relevant documents : - Sidley & Adler community model document:
09:45-10:30 – Review of government input / concerns and way forward Relevant documents : - GAC members input to Paris meeting - Jurisdiction clarification draft
10:30-10:45 – Coffee break
Notes
Presentation by external counsel.
Answers to questions from Tijani
Answers to question from Seun
Answer to Chris: Logistics to be taken into account with the sole member?
As a sole member, basically none. It will act on paper, recognising the member has acted. It will have to exercise the rights given in the bylaws, nothing additional and administrative.
If a SO/AC wants to act, do you need legal status?
The sole members has the ability to enforce the bylaws through and IRP, and enforce the decision of the IRP panel in court.
Individual SO/AC may exercise specific rights, they have access to the IRP to enforce those rights. And the community could go to court on that SO/AC behalf to legally enforce as necessary.
Only the community mechanism will have the statutory rights.
The ability to create new advisory committees is in the current bylaws. If a new AC/SO is created, assume it automatically become part of the community mechanism and the voting weights will change. Keep the changes to voting arrangements in mind.
The model is contemplated as being open. And these issues of voting rights and thresholds will be the focus of drafting and implementation.
How to deliver their votes will be at the judgment of the SO/AC, flexible arrangements.
Tijani: the question was can a single SO/AC can take ICANN to the courts.
Answer: Can write in the bylaws that any dispute must go through the IRP process. And avoid other forms of litigation.
If the outcome is the sole member model, then may start with a clean sheet when designing its modalities. Note the key difference is that the council is a forum for discussion, voting happens at the SO/AC level.
There are statutory rights for members. Only the sole member is a member. The SO/AC are not members. The SO/AC do not have statutory rights, those rights are only collective rights. And there will be a truncation of rights in the bylaws to reinforce this arrangement.
A power initiated to block a bylaws change. A petition from the threshold of SO/AC to initiate. A discussion within the council forum for some period of time. If the outcome it to cal for a vote, then the vote is made at the SO/AC level. The implementation detail by CCWG Tuesday July 21 call.
Objection from Eberhard Lisse extended from CCWG meeting #41 to #42.
Where we are
- Positive feedback on the membership model yesterday
- Answered questions today to best of ability
- Lots of support in chat for sole member model
- Sam and Alan preferred designator model
- No objections
CONCLUSION: new reference model -- community mechanism as sole member model
Action: Lawyers answers need to be written and sent to list
Larry blog post indicated need for documentation of all the models
Suggestion to communicate that no new formal structure will be created as the community forum - the forum will be an open forum for discussion.
09:45-10:30 – Review of government input / concerns and way forward
- Consideration of government comments.
- Noting the contribution of there government of China.(sent this morning to list)
In document on screen, black text is from ICANN's current Bylaws. Red text is proposed by CCWG.
Action: Lee Bygrace to assist with drafting text for Core Values
More common ground on requirements. Bylaws drafting to take place after the requirements are agreed.
Action: clarify the requirements based on Stress Test 18. Delve in further in the Bylaws drafting stage
Action Items
Action: Lawyers answers need to be written and sent to list
Action: Lee Bygrace to assist with drafting text for Core Values
Action: clarify the requirements based on Stress Test 18. Delve in further in the Bylaws drafting stage.
Documents Presented
Chat Transcript
Kimberly Carlson: (7/18/2015 00:07) Welcome to CCWG Accountability Meeting #42 on 18 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
James Gannon [GNSO-NCSG]: (00:30) Good morning everyone, people are still just arriving into the room, so give us a few mins
nigel hickson: (00:30) @James - good morning to you and all
Tom Dale (GAC Secretariat): (00:31) Good morning all.
Farzaneh Badii: (00:31) Morning
David McAuley (RySG): (00:33) Thanks James
Asha Hemrajani: (00:34) Good morning all (Good afternoon from Singapore)
Leon Sanchez (Co-chair ALAC): (00:36) Hello everyone!
Sivasubramanian M Phone: (00:36) hello
Leon Sanchez (Co-chair ALAC): (00:36) We will begin shortly
Hillary Jett: (00:44) A PDF of today's agenda can be found here: https://community.icann.org/download/attachments/53778863/CCWG-ACCT%20Paris%20Agenda_FINAL%20%281%29.pdf?version=1&modificationDate=1437201813021&api=v2
Jordan Carter (.nz, ccTLD member): (00:47) Ata marie everyone - good morning/afteroon/evening
Bruce Tonkin: (00:51) too much coffee Rosemary :-)
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (00:52) and I suspect too little sleep :-) :-) :-)
Rinalia Abdul Rahim: (00:53) Can the lawyers' responses me made available on email? It will allow for better understanding when people see written text.
Rinalia Abdul Rahim: (00:54) be made available
Asha Hemrajani: (00:54) +1 Rinalia...Rosemary's voice is coming through very softly here
Leon Sanchez (Co-chair ALAC): (00:54) @Rinalia we will certainly circulate the lawyer's answers to the list and add them to the legal documentation repository
Rinalia Abdul Rahim: (00:54) Thanks, Leon.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (00:54) we will ensure a written record is available @Rinalia
Olga Cavalli - GAC Argentina: (00:54) Rinalia makes a good point, this document with questions and the answers could be very useful
Leon Sanchez (Co-chair ALAC): (00:56) @Olga yes, we will make sure to have it circulated .-)
Olga Cavalli - GAC Argentina: (00:56) thanks Leon
Sabine Meyer (GAC - Germany): (00:58) Jordan, seeing you write in orange just feels off ;)
Jordan Carter (.nz, ccTLD member): (00:59) OK
James Gannon [GNSO-NCSG]: (01:00) My color reflects my mood =)
Leon Sanchez (Co-chair ALAC): (01:01) Oh no James, not blue!
Jordan Carter (.nz, ccTLD member): (01:01) Sebastian is wrong, because the member is the group of SOs and ACs
Jordan Carter (.nz, ccTLD member): (01:01) unless I misunderstood
Paul Rosenzweig (Heritage): (01:02) Sebestain is wrong .... I think that some SOs want to retain the option of going to court as a last resort
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (01:02) in my Android app your all just shades of grey
Leon Sanchez (Co-chair ALAC): (01:03) @Cheryl and there's more than 50
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (01:03) :-) :-) :-)
Keith Drazek: (01:03) Under the CMSM model, would the SOs and ACs still have standing and ability to remove their appointed Board director, without the concurrence of the Sole Member?
Anne Aikman-Scalese: (01:04) eith - Excellent question because they should.
Leon Sanchez (Co-chair ALAC): (01:04) @Keith to my understanding, yes
Greg Shatan: (01:04) What happens when an SO/AC seeks to enforce an IRP. has nothing to do with the governance model we choose.
Jordan Carter (.nz, ccTLD member): (01:04) Keith, yes
Jordan Carter (.nz, ccTLD member): (01:05) unless we change how that operates
Jordan Carter (.nz, ccTLD member): (01:05) *how that power operates
Keith Drazek: (01:05) Thanks all. That's good.
Bruce Tonkin: (01:07) The current bylaws state:
Bruce Tonkin: (01:07) The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board
Bruce Tonkin: (01:07) My reading of this is that a new advisory committee doesn't necessarily need to be embedeed in the bylaws currently.
Robin Gross [GNSO - NCSG]: (01:07) I prefer the votes come from within the participants, rather than from a council.
Bruce Tonkin: (01:08) I think it is worth at least working throuhg a hypothetical case of the imapct of a new advisory committee. I accept Thomas comment that the community would need to cosndiewr the impact of this - but currentl y the procezs for creating advisory committees is pretty general and broad.
Jordan Carter (.nz, ccTLD member): (01:08) Bruce: a new AC to be part of this structure would imply bylaws changes - I don't think there'd be a change to the board's ability to appoint ACs along the lines of these clauses
Lyman Chapin: (01:08) I believe I heard Holly say that an individual SO or AC (if organized as a legal person) - not just the community mechanism as the sole member - would have standing in the CMSM model to bring legal action against ICANN to enforce the bylaws. Does that option exist even if the SO or AC is unable to obtain an IRP ruling that is favorable to its interpretation of the bylaw violation?
Samantha Eisner 2: (01:08) So are we embedding in requirements for council discussions prior to a vote on any of these community powers
Jordan Carter (.nz, ccTLD member): (01:09) i.e. the Board didn't randomly create the ALAC, right? There was a bylaws change process to establish it in its current form and with its e.g. role as a designator of a director
Jordan Carter (.nz, ccTLD member): (01:10) Sam yes I think that is where that is heading
Anne Aikman-Scalese: (01:10) Since the Sole Member will be an unincorporated association, shouldn't we be calling the member the Community Association rather than the Community Mechanism? It seems that a member is an association under the statute and not a "mechanism" but of course I am not a California lawyer.
Bruce Tonkin: (01:11) @Jordan - I gather you are saying there could be types of advisory committees - those that become part fo the community wide decision process, and perhaps some that are created for special purposes in the short term that are not intendxed to be part fo the governance structure. ALAC certainly is parto of the governance structure - and ALAC actually appoints a voting Board member.
Jordan Carter (.nz, ccTLD member): (01:11) Bruce: yes
Bruce Tonkin: (01:13) I would say that RSSAC and SSAC are also actively part of the governance structure. They appoint non-voting laisisons to the Board - but actually a treated the same as voting directyors in all board discussions, No distiniction betyween Board memebr types is made with respect to deliberating on decisions.
Leon Sanchez (Co-chair ALAC): (01:13) @Anne in th eende we might come to refering to it as you suggest. So far, we have refered to it as a "mechanism" to try to avoid confusion although we are aware that it might not be the most acccurate term :-)
James Gannon [GNSO-NCSG]: (01:14) @Bruce and that unofficial party is something that the board can retain in its own operating model, but they have actively said that they dont want to be part of the governance of ICANN, that they want to be advisory, and remain that way.
Greg Shatan: (01:15) @Anne, "Community Mechanism" is the neutral term the CCWG has been using to refer to this feature of our model(s). It has nothing to do with California law.
Jordan Carter (.nz, ccTLD member): (01:15) Chris: that's basically what happened to me ;)
Jordan Carter (.nz, ccTLD member): (01:15) and Alan has reminded me
Rinalia Abdul Rahim: (01:15) what's in the air?
Greg Shatan: (01:16) It's only the beginning o Day 2. Too early for brains to be turning to mush!
James Gannon [GNSO-NCSG]: (01:18) I suggest that we call it exactly that a forum and not a council
Avri Doria: (01:18) Chisi point about the design of the council'is something that was bothering me yesterday. Glad to hear that this will be fixable.
Avri Doria: (01:18) Chris' point ...
Robin Gross [GNSO - NCSG]: (01:19) I think so too, Avri. And I also would prefer we call it a "forum" rather than a council to keep us on track on what it is / does.
Avri Doria: (01:19) agree
Jordan Carter (.nz, ccTLD member): (01:20) Sebastian: I took your comment to be a question about SOs etc becoming legal persons and taking each other to court, but I think I misunderstood what you were saying
Jordan Carter (.nz, ccTLD member): (01:20) I missed the link to the IRP :-)
Paul Rosenzweig (Heritage): (01:20) @ Sebastian ... indeeed you can. And it may be that in the end we extinguish SO suit possibiities -- but then again it is probably not terribly important since it has never happened before, and is in unlikely that it would in the future.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (01:20) yup *very* happy with the term forum if we go to the CMSM
Rinalia Abdul Rahim: (01:21) +1 @ Jordan on community discussion before exercising of powers
Anne Aikman-Scalese: (01:21) Community Association Sole Member may more clearly convey the nature of tthe Sole Member to the world at large - CASM instead of CMSM?
Greg Shatan: (01:29) Community Helpful Association Sole Member = CHASM?
Anne Aikman-Scalese: (01:29) Coulddn't we just call it the Community Association and say that the Community Association Sole Member has a Community Association Council?
Anne Aikman-Scalese: (01:29) @Greg LOL
Avri Doria: (01:30) do we even need such a council/forum we just need to specify the mechanism. is it just an anacrhronistic hold over?
wolfgang: (01:31) @Avri 1+
James Gannon [GNSO-NCSG]: (01:31) I thought the q qas closed after sam
Jordan Carter (.nz, ccTLD member): (01:31) I don't know Avri - I think personally that mandating the discussion is part of how we avoid these powers becoming silos
Jordan Carter (.nz, ccTLD member): (01:32) the member won't appoint directors - they'll be apppinted as they are today
Bruce Tonkin: (01:32) I agree Thomas - I prefer the term "forum" rather than Council. ie it woud be nice to have a public forum style event at an ICANn meeting - where all ICANN community members can attend and comment. The SO and AC then formally vote on how they want to direct the powers of the CMSM.
Avri Doria: (01:32) mandating a discussiojn is a mechanism. havng a standing council/forum is something else.
Asha Hemrajani: (01:32) Avri if we don't have a forum or council, who would be the spokesperson?
Asha Hemrajani: (01:32) or co-ordinate the discussion?
Avri Doria: (01:33) the voting compnents of the Member would pick one.
Asha Hemrajani: (01:33) @Avri sorry I don't understand
Avri Doria: (01:34) i was going to ask in the room, but was too late in coming up with my question for the chairs.
Chris Disspain: (01:35) the member will need to have a 'communicator' appointed
Chris Disspain: (01:35) it could be the chairs of SOs and ACs who fill that role
Avri Doria: (01:36) my point wqs to ask why we woul dneed a standing council whatever we call it. we could have a mechsism for having a cross community discussion when needed. as for who serves as the sppokeperson, the voting partivpants in the SOAC member could pick a spoekperson.
Chris Disspain: (01:36) it was briefly discussed yesterday
Chris Disspain: (01:36) we don't Avri
Chris Disspain: (01:36) but we might want one
Avri Doria: (01:36) it is in the nature of a stanidng committee to search for work to do.
Jordan Carter (.nz, ccTLD member): (01:36) Avri, I think it's about the symbolism of saying the community discusses the use of these powers, together, before they are exercised
Chris Disspain: (01:37) so we might want a representativw 'body' to become fully briefed on the issue and then report back to their SO or AC
Jordan Carter (.nz, ccTLD member): (01:37) so it'd be a known group that gathered only on such occasions
Chris Disspain: (01:37) that might be easier than briefing each SO and AC directly
Jordan Carter (.nz, ccTLD member): (01:37) we'd be doing it wrong if it had regular scheduled meetings with an ever-growing agenda
Chris Disspain: (01:37) Jordan +1
James Gannon [GNSO-NCSG]: (01:37) Strong support
Chris Disspain: (01:37) it would convene only when there ios a petition
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (01:37) indeed
Avri Doria: (01:37) i like the idea of bringing the community together in discussion when needed. i hate the idea of yet another group looking for improtant work to do.
Chris Disspain: (01:37) Avri + 1
Jordan Carter (.nz, ccTLD member): (01:38) +1 Avri
Greg Shatan: (01:38) The structure of the forum or council needs to be flexible enough to allow GNSO Constituencies to participate in the forum/council, should they so choose.
Steve DelBianco [GNSO - CSG]: (01:38) This Sole Member model seems to avoid the "mischief" of having one or multiple members exercise their statutory rights in court.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (01:38) yup avri +++
Farzaneh Badii: (01:38) clap clap
Avri Doria: (01:39) that is what i meant about having a mechansim for calling the community together instead of a council sitting in all their pomp and circumstance.
Anne Aikman-Scalese: (01:39) many thanks to outside counsel for suggesting this model!
Greg Shatan: (01:39) I presume there will be a transcript, as well....
James Gannon [GNSO-NCSG]: (01:39) Yes thanks to holly and rosemary in paticular guys, they have learned an amazing amount in the last few months!
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (01:40) my view is there should be 1 put forward as the reference model Izumi
Asha Hemrajani: (01:40) @Avri, I see your point about the pomp and circumstance, but I am talking more about a
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (01:40) the other does not dissapear but one is prioritized with rationale
Keith Drazek: (01:40) I think we need to present one option but explain why we chose that path in the context of the other options considered.
James Gannon [GNSO-NCSG]: (01:40) Yes we need to have a strong model to bring out from here.
Asha Hemrajani: (01:41) oops...did not finish.."servant-leader" model...if there is no forum or council, who would do the co-ordination and communication?
David McAuley: (01:41) +1 Thomas
mike chartier: (01:41) Keith +1
Keith Drazek: (01:41) +1 I support Thomas' recommendation.
Bruce Tonkin: (01:41) @Thomas - I think that is the right process going forward. COming into the Paris meeting there was not a convergence on teh Desgnator or Empowered memebrship model - but out of Paris there seems to be a viable option to flesh out. So I support the CCWZG recommending a partiocular model - but also provfide the details of the other models that were considered.
Bruce Tonkin: (01:42) Ultiamtel the Sos and ACs could reject the recomemnded model - and the CCWGZ can then reconsider.
Bruce Tonkin: (01:43) It does mean that the CCWG needs to have a good FAQ on the recommended model - and capture all the Q&A from the last couple of days.
Avri Doria: (01:43) so are we killing the council?
Asha Hemrajani: (01:43) +1 Bruce, agree with only one single option to be put forward + summary of the other models considered + some meat on why we selected this model over others
Jordan Carter (.nz, ccTLD member): (01:43) I don't agree with what Malcolm just said
Jordan Carter (.nz, ccTLD member): (01:44) Avri: let's sketch out the revised text and see where we get...
Jordan Carter (.nz, ccTLD member): (01:44) killed in the form as per the draft
Avri Doria: (01:52) On Consensus, so GAC could define consensus to mean 60% vote., or even 50+% vote. If so, why are we making a rule?
Steve DelBianco [GNSO - CSG]: (01:53) @Avri -- do you really think that GAC members would claim that 50% is consensus? Is that how governments define consensus at the UN and ITU?
Steve DelBianco [GNSO - CSG]: (01:54) Note that the Black text is from ICANN's current Bylaws. Red text is proposed by CCWG
Chris Disspain: (01:54) Steve...probably not but they may well claim that a simple majority is consensus
Avri Doria: (01:54) keeping[ within their jurisdiction] is critical
Greg Shatan: (01:55) Avri, grammatically, shouldn't that be [within their respective jurisdictions]?
Avri Doria: (01:55) Steve, yes, i beleive they could. define anything they wished under this wording.
Anne Aikman-Scalese: (01:56) @Greg - I think Avri means the "jurisdiction" of public policy advice.
Paul Rosenzweig (Heritage): (01:56) If GAC defines consensus as majority would the Board and/or community have to accept that definitiion?
Greg Shatan: (01:57) @Anne, that's not clear to me, and if that's the case the language seems redundant.
Thomas Rickert: (01:57) Paul - advice would still be advice and trigger an engagement process, not bind the Board
Chris Disspain: (01:57) Malcolm is wrong....it is very clear what GAC advice is
Paul Rosenzweig (Heritage): (01:58) So, if GAC says "this majority view is our consensus" that would trigger a mandatory consultation process, yes?
Alice Munyua (GAC): (01:58) GAC operating principle 47 defines consesns
Avri Doria: (01:58) i do not understand why we feel the need to mess with this now.
Alice Munyua (GAC): (01:58) consensus
Avri Doria: (01:59) as long as the board can turn down advice, it really doesn't matter what they call advice.
Thomas Rickert: (01:59) Paul, if the GAC chose to bend the definition that way, that might be true. However, I see that as a very unlikely scenario
Bruce Tonkin: (01:59) The form of the proposed core value seems a little strange - at it refers to a particular subset of unique identifiers.
Thomas Rickert: (01:59) Also, I think this is not for our group to decide
Paul Rosenzweig (Heritage): (01:59) @ Thomas -- indeed unlikely, but almost all of our stress tests are in the unlikely category
Bruce Tonkin: (01:59) I woul dhave thought that it shoudl eb drafted in the form that ICANN as a core value support mechansims that preserve competiton, protect consuemrs, protect security etc.
Bruce Tonkin: (01:59) I think much of tehse are already in the core values - although maybe not consumer protection.
Becky Burr: (02:00) I agree Bruce, which is why it wasn't included in the first draft - but there was very strong pushback
Thomas Rickert: (02:00) True, Paul. However, we cannot prescribe to the GAC how they operate and our initial language suggested we did. We just remove ambiguity on that.
Greg Shatan: (02:00) Don't those two categories already exist?
Greg Shatan: (02:00) At least in practice?
Chris Disspain: (02:00) there is currently a split in the GAC with some givernments pushing to go to voting rather than consensus...the proble is that currenlty this chnage can just happen by the GAC changing its operating principle
Thomas Rickert: (02:00) Please also note we have a stresstest on capture, which applies to all groups.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:01) the black text *is* the bylaw text current
Chris Disspain: (02:01) the idea if the by law was to set the GAC operating principle as consensus at a higher level in the bylaw
James Bladel: (02:02) I tend to agree. Why do we enve acknowledge anything comign from the GAC that falls short of Consensus advice?
Robin Gross [GNSO - NCSG]: (02:02) Agree with James.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:02) the bold underline is current ST18 language proposed the red is the NEW additional proposed text
Chris Disspain: (02:02) James....in effect we don't
Avri Doria: (02:02) i do not see what difference it makes. the board review the idea for its merit, and it if does not merit being accepted does not matter how big the consensus was.
Greg Shatan: (02:03) Currently, the bylaws don't define how the GAC arrives at their advice. They could use digital archery, as far as the bylaws are concerned.
Chris Disspain: (02:03) the weight if consensus advice is far more than majority advice...
Avri Doria: (02:03) Grep and that would be just as valid as wht they do. not our problem.
Avri Doria: (02:03) Greg ...
Chris Disspain: (02:03) especially when you consider that Euro countries may well vote as a block
Avri Doria: (02:03) Board reviews it on its merits and then accepts or doesn't.
Chris Disspain: (02:03) as may African countries
Chris Disspain: (02:04) it is VERY dangerous
Paul Rosenzweig (Heritage): (02:04) @ Thomas, I agree that we cannot prescribe to the GAC how they rate. But this bylaw amendment is not just about that -- it is about how we at ICANN are obliged to respond to GAC advice. In that sense we are defining our own obligations to respond. Think of it this way: I would write a bylaw that says "With respect to advice from the GAC supported by 80% of the governments, the ICANN Board is obliged to .... " In that way, nothing would be about what the governerments are doing but only about the Booard 's responsive obligations
Becky Burr: (02:04) @Bruce - the new core value is really not workable outside the context of adding new gTLDs. Outside that context it creates affirmative obligations that go well beyond the Mission
Steve DelBianco [GNSO - CSG]: (02:04) AoC section 9.3 includes a commitment AND a review. This is the Committment
Greg Shatan: (02:05) @Chris, agree 100%.
Becky Burr: (02:07) we are discussing that later
Becky Burr: (02:07) in the conversation regarding mission and core values
Seth Johnson: (02:12) Note: my action requests pertain to the stress tests to be revisited re fundamental rights
Seth Johnson: (02:13) re the ccwg-jurisdiction doc, I only object to it as framed presently as I stated. I do not intend to provide a new document in this proceeding. I will send comments to mathieu (sp?) (or designatee)
Seth Johnson: (02:14) I will later address what types of edits are necessary. I don't see the same deadlines this group sees. I see only the need to address thefull scope of accountability re fundamental rights before the NTIA is removed.
Seth Johnson: (02:15) thanks for the time. Still need to hear about the stress tests though. :-)
Malcolm Hutty: (02:16) it needs to be understood that the Board must pay the greatest deference to the Bylaws; the Board have not only the right but also the duty not to follow advice (from any quarter, including the GAC) that is inconsistent with the Bylaws
Malcolm Hutty: (02:17) core value 11 attempted to record this; any final wording should reflect it
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:18) agreed @malcolm
Greg Shatan: (02:18) If the Board decides to reject GAC advice, the GAC and Board have to try "in good faith and in a timely and efficient manner, to find a mutually acceptable solution." In practice, this means GAC advice gets a great deal of deference. I see that level of deference as directly tied to the high level of consensus.used by the GAC. If that level of consensus or decision-making goes down, the level of deference should not stay the same.
Robin Gross [GNSO - NCSG]: (02:19) I agree, Greg.
Chris Disspain: (02:19) exactly Gref
Chris Disspain: (02:19) Greg
Chris Disspain: (02:19) and if the advice is consensus then...OK
Chris Disspain: (02:20) but if consensus suddenly means simple majority.....not OK
Rinalia Abdul Rahim: (02:21) +1 Chris
Lee Bygrave: (02:22) +1 Chris
jorge cancio (GAC): (02:23) I feel nobody is even considering that, Chris
Greg Shatan: (02:24) “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’’The question is,’ said Alice, ‘whether you can make words mean so many different things.’’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
Rinalia Abdul Rahim: (02:25) Is Humpty Dumpty and Alice in Wonderland read vy everyone across cultures around the world, sufficiently enought for your comments to be understood, Greg?
Seth Johnson: (02:25) One more note to be clear I'm not only talking about stress test 18
Seth Johnson: (02:25) I see the transition bringing fundamental rights implications that need to be acknowledged/addressed in stress tests 3, 4, 19, 20, 16, 18, 23, 26. Maybe 14, 15, 25
Chris Disspain: (02:26) Mathieu - it is true that the SOs and ACs have theior own rules BUT those rules are set in the bylaws
Greg Shatan: (02:27) I don't think that one needs to know the text to understand the comment....
Robin Gross [GNSO - NCSG]: (02:29) I think Paul is right about this. I'm worried that the Board would be obligated to give deference to advice that doesn't have full support.
Greg Shatan: (02:30) @Rinalia, I would note that AiW has been translated into dozens of languages. https://en.wikipedia.org/wiki/Translations_of_Alice%27s_Adventures_in_Wonderland
Pedro da Silva [GAC Brasil]: (02:30) Totally agree with Avri. No risk of capture at all if the current text is kept.
maarten simon: (02:31) +1 Avri
Seth Johnson: (02:31) GAC advice reflects enforceable public policy
Greg Shatan: (02:31) My understanding of the deference given to GAC advice is considerably different from Avri's understanding.
Seth Johnson: (02:32) GAC advice also carries normative weight augmented by policy power
Olga Cavalli - GAC Argentina: (02:32) +1 to Avri
James Gannon [GNSO-NCSG]: (02:32) Do we need this change for the transition? Are we sure that we need this right now? Will it be rejected without it? And are we sure of our answers to those questions?
Jordan Carter (.nz, ccTLD member): (02:32) the United States has said that ST18 is a bottom line
Steve DelBianco [GNSO - CSG]: (02:32) NTIA has gone on-record saying "• We also interpret stress test 18 as both appropriate and necessary to meet the requirement that the IANA transition should not yield a government-led or an intergovernmental replacement for NTIA’s current stewardship role."
Paul Rosenzweig (Heritage): (02:33) @ James Gannon -- Yes, the USG position as I understand it is that the change is necessary for approval
jorge cancio (GAC): (02:33) good legal work advises not to repeat the same obligation in different places of a legal document: that only raises issues of interpretation. The obligation for the Board to be consistent with the Bylaws needs not be to be repeated in the Bylaws if it is generally stated (which I understand is already done)
Greg Shatan: (02:33) Doesn't GAC Rules #47 define consensus for the GAC?
Jordan Carter (.nz, ccTLD member): (02:34) Greg, yes it does.
Avri Doria: (02:34) Do you really bellieve that NTIa will reject the whole transiton is tis bylaw is not changed?
Paul Rosenzweig (Heritage): (02:34) @ Greg -- Yes it does, but my understanding is that GAC Rule #47 can be changed by majority vote :-)
jorge cancio (GAC): (02:34) why don't we leave US positions to our NTIA colleagues?
Greg Shatan: (02:34) We have done the impossible, then. We can break for lunch!
Alice Munyua (GAC): (02:34) yes Principle 47 defines consensus
Paul Rosenzweig (Heritage): (02:34) @ Avri 0-- Yes ...
Avri Doria: (02:34) i dont't.
Paul Rosenzweig (Heritage): (02:34) @ Jorge -- Agreed -- but I'm quoting their position ...
Greg Shatan: (02:34) ICANN cannot take actions inconsistent with its bylaws, whether it says it or not.
Avri Doria: (02:35) Exactly Greg.
jorge cancio (GAC): (02:35) everybody may evolve ;-)
Avri Doria: (02:35) and i propose that we remeber that Board is obligated to reject any reocmmendation that is not consistent with the bylaws.
Greg Shatan: (02:35) I thought there was an attempt to do so in the recent past....
Avri Doria: (02:36) or is that the problem that we fear a Board without the backbone to reject
Seth Johnson: (02:36) It's presently people + gov -- not x-led
Chris Disspain: (02:36) I think we are all talking past each other right now
Greg Shatan: (02:36) Current wording: While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments' or public authorities' recommendations.
Chris Disspain: (02:36) my understanding is that if we do nothing then we will fall foul of NTIA requirements
Avri Doria: (02:36) and with the new accountabilty mechanisms to overturn and apeal decsion of the board, why the fuss? they can't capture this way.
Chris Disspain: (02:37) and if we do something then the GAC won't agree
Steve DelBianco [GNSO - CSG]: (02:37) CCWG is responsible to provide a proposal that meets NTIA requirements. And we have explcicit advice from NTIA that the ST18 bylaws change is required to meet transition .
James Gannon [GNSO-NCSG]: (02:37) +1 Chris
Chris Disspain: (02:37) so maybe we should let the US and their GAC colleagues sort this out
Rinalia Abdul Rahim: (02:37) +1
Avri Doria: (02:37) IRP has shown it can overturn a Board decsion based on GAC advice already. and in the future the IRP will have even more lattitude it is hoped.
Pedro da Silva [GAC Brasil]: (02:37) I am concerned that additional transition requirements are being imposed on a top-down manner and are therefore neglecting the whole multistakeholder nature of this process.
Greg Shatan: (02:38) Which 'top" are you referring to?
maarten simon: (02:38) +1 Chris,
Chris Disspain: (02:38) the CCWG should write to Larry saying that it appears that there is a mismatch between NTIA requirements and the will of other governments...please sort it out
Leon Sanchez (Co-chair ALAC): (02:38) @Pedro I fail to see which additional transitinon requirements are being created/imposed
Pedro da Silva [GAC Brasil]: (02:39) Saying that ST18 is a condition for the transition seems to be an additional requirement to me
Greg Shatan: (02:39) Are we being prohibited from conducting certain stress tests? That concerns me.
Robin Gross [GNSO - NCSG]: (02:39) good point, Chris. They are at odds and we are in a bind as a result.
Becky Burr: (02:40) if everyone agrees that ICANN cannot act contrary to the Bylaws, then why can't the Board dispense with GAC advise that cannot be reconciled with the bylaws without the dialogue etc. ICANN should be able to say Thank you for the Advice but if we followed it , we would be violating our bylaws, full stop.
Jordan Carter (.nz, ccTLD member): (02:40) hasn't the US explained the ST18 stuff as being an example of what meets that one of the four tests?
jorge cancio (GAC): (02:40) why don't we let the NTIA explain themselves what their take is ?
Leon Sanchez (Co-chair ALAC): (02:40) @Pedro understood but it is not something we came up with. It is rather a step to meet the NTIA requirements set from the very beginning
Greg Shatan: (02:40) @Becky, that would be acting contrary to the Bylaws.
Avri Doria: (02:40) i think we can show that as things are currently bylawed, they cannot capture.
Greg Shatan: (02:40) The Board can reject, but then has to go through the "mutually acceptable" dance.
Avri Doria: (02:41) i thought the US was avoiding putting their finger on the scale. so as long as the Board can reject, and IRP an overturn if the are unable to reject when they should have, then capture cannot occur.
Chris Disspain: (02:41) which takes around 6 mlnths
Pedro da Silva [GAC Brasil]: (02:41) @Leon: I don't wee any relation between ST18 and the original requirements set out in the March 14th announcement
Paul Rosenzweig (Heritage): (02:41) Since we are wondering, here is what the USG said re: ST18:
Paul Rosenzweig (Heritage): (02:41) "• In this regard, the USG believes that stress test 18 proposed by the CCWG, which recommends an amendment to ICANN’s Bylaws to make clear that only consensus advice triggers a Bylaw consultation, is fully consistent with the first Accountability and Transparency Review Team’s (ATRT) Recommendations pertaining to the GAC. We do not see this stress test as in any way interfering with the GAC’s internal working methods. • We also interpret stress test 18 as both appropriate and necessary to meet the requirement that the IANA transition should not yield a government-led or an intergovernmental replacement for NTIA’s current stewardship role. While the GAC may not be directly involved in the IANA functions, its role within ICANN as a source of public policy advice that is taken into account by the ICANN Board is relevant to the interrelated process of improving ICANN’s accountability. "
Robin Gross [GNSO - NCSG]: (02:41) not to be confused with the Hokey Pokey dance ;-)
Becky Burr: (02:41) which part Greg? as it stands, ICANN is obligated to engage on all GAC Advice. Yes it can reject it, but there is the whole back and forth requirement.
jorge cancio (GAC): (02:41) I would be a bit worried if everybody was trying to second guess my own thoughts... I would rather give my own interpretation...
Chris Disspain: (02:41) indeed Robin...whether I put my left foot in or out is entirely a matter for me
Avri Doria: (02:42) oh, so this is a save the Board work change?
Chris Disspain: (02:42) no Avri
Chris Disspain: (02:42) absolutely not
Avri Doria: (02:42) isn't that why they are employees paid a good salary by nomal mortals standards?
Becky Burr: (02:43) no Avri, i'd be fine if the engagement process was quick, but as we have seen on several occaisions that it is not and that stakeholders have been held up for months by Advice that ICANN could not have accepted consistent with the bylaws
Greg Shatan: (02:43) That takes care of that.
Avri Doria: (02:43) Becky, that si stil beside the point, it is not capture.
James Gannon [GNSO-NCSG]: (02:44) Yup nice and clear so....
Becky Burr: (02:44) ok Avri, but it is a real problem
Avri Doria: (02:44) ok so we need to fix the process. that is not this.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:45) thank you for your timely intervention @Ashley
Avri Doria: (02:45) i agree we have to avoid capture. i just do not see the cpature point in the current situation. and you know i have been outspoken about giving the GAc any more pwoer.
James Gannon [GNSO-NCSG]: (02:45) +1 CLO grat to have a direct response like that
jorge cancio (GAC): (02:46) again: let's hear the original reaction from all interested parties to these new pieces of text, instead of second guessing them...
Seth Johnson: (02:46) It's not about capture, it's about a modification of the checks on govs that are mostly unconscious here.
Becky Burr: (02:46) you cannot fix the process to demand that the GAC moves more quickly
Avri Doria: (02:47) what I have not seen from NTIA is an explaantion about why they might think the current situation would become capture if the level for cadvice changed. - yes it would amek thing more difficult for them in the GAc, but why would it be capture.
Chris Disspain: (02:47) I'll expalin in the break Avri
Seth Johnson: (02:47) The ability to resist intergov will reduces once the handoff occurs. Really.
Becky Burr: (02:48) I think you are incorrect Seth, i think it will increase the problem
Mark Carvell GAC - UK Govt: (02:48) We may conside it over-stated but It is possible that the concern in Congress about capture risk will be that, as in multilateral fora, governments are prone to coalesce in blocs (as will likely happen in the upcoming UNGA WSIS+10 negotiations on Internet governance).
Seth Johnson: (02:48) You got me backwards. I agree the problem increases
Jordan Carter (.nz, ccTLD member): (02:48) Seth and Becky actually agree
Seth Johnson: (02:48) That's what I'm saying.
Seth Johnson: (02:49) it's part of the nature of the transtiions
Paul Rosenzweig (Heritage): (02:49) @Mark -- yes, indeed Block voting makes non-consensus majorities possible
Tracy Hackshaw (Trinidad & Tobago): (02:49) Mark is correct re: UNGA negotiations
Avri Doria: (02:49) but still the Bard can refuse the advice.
Seth Johnson: (02:49) Sure, but it becoms harder under international-ity
Chris Disspain: (02:49) the Bard can do whatever he likes
Paul Rosenzweig (Heritage): (02:49) @Avri -- the BARD! I love it.
Avri Doria: (02:50) my typoing is often amusing.
Asha Hemrajani: (02:50) @Avri I was wondering when you would bring Shakespeare into this
Avri Doria: (02:51) you mean Marlowe, i am sure.
Cheryl Langdon-Orr (CLO) ALAC Member AP Region: (02:51) :-) :-) :-)
Chris Disspain: (02:51) or the Earl of Essex
Greg Shatan: (02:52) Are these references more or less culturally specific than Humpty Dumpty?
Chris Disspain: (02:52) well, at least they are cultural
Leon Sanchez (Co-chair ALAC): (02:52) @Chris I just love how the word Earl makes anything look so Royal
Grace Abuhamad: (02:52) 15 MIN BREAK
