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RE: [council] Council Way Forward on Accountability Proposal
I have a few thoughts regarding the Council's process and timing going forward.
At present the CCWG timetable targets January 22nd as the date on which it will
submit a final Proposal to the Board for its consideration. While that could
change depending on the public comments and Chartering organization positions,
for now I believe we should aim to complete our work on our call of January
14th so that we have a firm position on record at least a week before the
target submission date.
Our Role in the Process
For understanding our role it is important to note that the
Proposal<https://www.icann.org/public-comments/draft-ccwg-accountability-proposal-2015-11-30-en>
makes 12 separate Recommendations:
Recommendation #1: Establishing an Empowered Community for
Enforcing Community Powers
Recommendation #2: Empowering the community through consensus: engage,
escalate, enforce
Recommendation #3: Redefining ICANN's Bylaws as 'Standard Bylaws' and
'Fundamental Bylaws'
Recommendation #4: Ensuring community involvement in ICANN decision-making:
seven new Community Powers
Recommendation #5: Changing aspects of ICANN's Mission, Commitments and Core
Values
Recommendation #6: Reaffirming ICANN's Commitment to respect internationally
recognized Human Rights as it carries out its mission
Recommendation #7: Strengthening ICANN's Independent Review Process
Recommendation #8: Fortifying ICANN's Request for Reconsideration Process
Recommendation #9: Incorporation of the Affirmation of Commitments
Recommendation #10: Enhancing the accountability of Supporting Organizations
and Advisory Committees
Recommendation #11: Board obligations with regards to Governmental Advisory
Committee Advice (Stress Test 18)
Recommendation #12: Committing to further accountability work in Work Stream 2
The CCWG Charter<https://community.icann.org/display/acctcrosscomm/Charter>
sets out the role of the six Chartering Organizations (GNSO; ALAC; ccNSO; GAC;
ASO; SSAC) and related procedures as follows:
SO and AC support for the Draft Proposal(s)
Following submission of the Draft Proposal(s), each of the chartering
organizations shall, in accordance with their own rules and procedures, review
and discuss the Draft Proposal(s) and decide whether to adopt the
recommendations contained in it. The chairs of the chartering organizations
shall notify the co-chairs of the WG of the result of the deliberations as soon
as feasible.
Supplemental Draft Proposal
In the event that one or more of the participating SO's or AC's do(es) not
adopt one or more of the recommendation(s) contained in the Draft Proposal(s),
the Co-Chairs of the CCWG-Accountability shall be notified accordingly. This
notification shall include at a minimum the reasons for the lack of support and
a suggested alternative that would be acceptable, if any. The
CCWG-Accountability may, at its discretion, reconsider, post for public
comments and/or submit to the chartering organizations a Supplemental Draft
Proposal, which takes into accounting the concerns raised.
Following submission of the Supplemental Draft Proposal, the chartering
organizations shall discuss and decide in accordance with its own rules and
procedures whether to adopt the recommendations contained in the Supplemental
Draft Proposal. The Chairs of the chartering organizations shall notify the
Co-Chairs of the CCWG-Accountability of the result of the deliberations as soon
as feasible.
Submission Board Report
After receiving the notifications from all chartering organizations as
described above, the Co-Chairs of the CCWG-Accountability shall, within 10
working days after receiving the last notification, submit to the Chair of the
ICANN Board of Directors and Chairs of all the chartering organizations the
CCWG-Accountability Board Report, which shall include at a minimum:
a) The (Supplemental) Proposal as adopted by the CCWG-Accountability; and
b) The notifications of the decisions from the chartering organizations
c) Documentation of the process that was followed, including, but not
limited to documenting the process of building consensus within the
CCWG-Accountability and public consultations.
In the event one or more of the chartering organizations do(es) not support
(parts of) the (Supplemental) Proposal(s), the Board Report shall also clearly
indicate the part(s) of the (Supplemental) Final Proposal(s) which are fully
supported and the parts which not, and which of the chartering organizations
dissents, to the extent this is feasible.
Board consideration and interaction with CCWG-Accountability and chartering
organizations
It is assumed that after submission of the Board Report, the ICANN Board of
Directors will consider the Proposal(s) contained in this Report in accordance
with the process outlined in its resolution of 16 October 2014 (see
https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d):
Resolved (2014.10.16.17), the Board commits to following the following
principles when considering the Cross Community Working Group Recommendations
on Enhancing ICANN Accountability and Governance:
1. These principles apply to consensus-based recommendations from the Cross
Community Working Group on Enhancing ICANN Accountability and Governance.
2. If the Board believes it is not in the global public interest to
implement a recommendation from the Cross Community Working Group on Enhancing
ICANN Accountability and Governance (CCWG Recommendation), it must initiate a
dialogue with the CCWG. A determination that it is not in the global public
interest to implement a CCWG Recommendation requires a 2/3 majority of the
Board.
3. The Board must provide detailed rationale to accompany the initiation of
dialogue. The Board shall agree with the CCWG the method (e.g., by
teleconference, email or otherwise) by which the dialogue will occur. The
discussions shall be held in good faith and in a timely and efficient manner,
to find a mutually acceptable solution.
4. The CCWG will have an opportunity to address the Board's concerns and
report back to the Board on further deliberations regarding the Board's
concerns. The CCWG shall discuss the Board's concerns within 30 days of the
Board's initiation of the dialogue.
5. If a recommendation is modified through the CCWG, it is returned back to
the Board for further consideration. The CCWG is to provide detailed rationale
on how the modification addresses the concerns raised by the Board.
6. If, after modification, the Board still believes the CCWG Recommendation
is not in the global public interest to implement the CCWG Recommendation, the
Board may send the item back to the CCWG for further consideration, again
requiring a 2/3 vote of the Board for that action. Detailed rationale for the
Board's action is again required. In the event the Board determines not to
accept a modification, then the Board shall not be entitled to set a solution
on the issue addressed by the recommendation until such time as CCWG and the
Board reach agreement.
Before submitting a modified recommendation to the ICANN Board of Directors, as
envisioned under 5. of the Board resolution, the CCWG-Accountability will
submit a Draft Supplemental Board Report to the chartering organizations
containing:
a) The modified recommendations, and associated detailed rationale,
b) The Board decision, and associated detailed rationale
c) The recommendation as contained in the Board Report
Following submission of the Draft Supplemental Board Report, the chartering
organizations shall discuss and decide in accordance with their own rules and
procedures whether to adopt the modified recommendations contained in the
report. The Chairs of the chartering organizations shall notify the co-chairs
of the CCWG-Accountability of the result of the deliberations as soon as
feasible.
After receiving the notifications from all chartering organizations, the
co-Chairs of the CCWG-Accountability shall, within 10 working days after
receiving the last notification, submit to the Chair of the ICANN Board of
Directors and Chairs of all the chartering organizations the
CCWG-Accountability Supplemental Board Report, which shall include at a minimum:
a) The modified recommendations, and associated detailed rationale.
b) The notifications of the decisions from the chartering organizations.
c) Documentation of the process that was followed, including, but not
limited to documenting the process of building consensus within the
CCWG-Accountability and consultations with the chartering organizations.
If, in accordance with 6., the Board determines not to accept a modified
recommendation, the CCWG-Accountability shall follow the procedure regarding
the Supplemental Board Report, as just described, to reach agreement with the
Board. (Emphasis added)
In my view three important things stand out after reviewing the Charter:
* The GNSO, as a Chartering Organization, could well be involved in
this process past the date of initial submission to the Board in a variety of
potential scenarios.
* We are tasked with examining, and expressing a view upon, each of the
12 separate Recommendations.
* The Board has a very different and influential role in this process.
The Board
filed<http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30nov15/msg00013.html>
comments on December 14th that express "greater concern" about six important
areas-
Areas of greater concern are on scope and implementation of inspection rights
(a part of Recommendation 1); veto of the IANA budget (a part of Recommendation
4); contractual enforcement in the Mission statement (a part of Recommendation
5), integration of human rights considerations (Recommendation 6), and
specifics for WS2 (a part of Recommendation 12).
Given that the CCWG may feel under pressure to accede to the Board
recommendations on these areas, and that if it does not the Board may declare
that one or more of the recommendations is "not in the global public interest",
thereby triggering a dialogue with the CCWG, I would propose that the Subteam
and Council give particular scrutiny to the Board position beyond that accorded
to other comments.
The actual amount of time available to complete the process
The January 22nd target date for Board submission was set by the CCWG by
working backwards from the September 30, 2016 expiration date of the current
IANA contract and factoring in the NTIA's estimate of 60-90 days for executive
branch interagency review prior to submitting the transition plan for
Congressional review; the 30 legislative days Congressional review requirement
written into the DOTCOM Act (which translates into two months-plus in mid-2016
given how often the House and Senate will be out of session); and the estimated
implementation time, including Bylaws drafting, within ICANN between Board
receipt and acceptance of a Proposal and the time that ICANN would be ready to
submit it for NTIA review.
As I
wrote<http://www.circleid.com/posts/20151216_fy16_approp_act_extends_iana_transition_freeze_without_dotcom_act/>
last week, the 2016 Appropriations bill extended the spending freeze on NTIA
completion of the IANA transition until September 30, 2016 but did not include
the DOTCOM Act. That bill was enacted two days ago.
I could be wrong, but my view is that inclusion in the Appropriations bill was
probably the DOTCOM's Act last chance for enactment in this Congress, and that
it is highly unlikely it will be brought to the Senate floor in 2016 either as
a free-standing bill or an amendment to another bill. Sen. Ted Cruz, who is
running 1st or 2nd in some current polls of the Republican Presidential field,
has a hold on the bill and has made clear that he wishes to offer the same
amendment that failed in the Commerce Committee, requiring affirmative
Congressional approval before the transition can be completed, if the bill is
considered by the Senate. Senate leadership is not fond of Sen. Cruz and is
unlikely to provide him with the opportunity to win on the Senate floor, or to
stage a filibuster if his amendment loses or is tabled (set aside), while the
Republican nomination remains in play. And, DOTCOM bill aside, Congress has
already given itself until September 30, 2016 to hold hearings on and review
the transition plan by extending the funding freeze.
I hope that was not too much inside baseball regarding Congress, but if DOTCOM
is not enacted that actually eases up the time pressure a bit while still
allowing a transition to occur on October 1st next year.
A colleague who is very active in ICANN surveyed the Congressional calendar
and, assuming that ICANN could complete its implementation work within 60 days
after Board acceptance, and that the NTIA could lead an interagency review
that also concluded within 60 days (although NTIA has said it might go as long
as 90), provided the following estimates of time available:
A. If NTIA gets CCWG proposal by 11-Feb, it delivers to Congress on 11-Apr. 30
Congressional Days ends 14-Jun-2016.
B. If NTIA gets CCWG proposal by 11-Mar, it delivers to Congress on 11-May. 30
Congressional Days ends 14-Jul-2016.
C. If NTIA gets CCWG proposal by 11-Apr, it delivers to Congress on 11-Jun. 30
Congressional Days ends 27-Sep-2016.
D. If NTIA gets CCWG proposal by 11-May, it delivers to Congress on 11-Jul. 30
Congressional Days ends 6-Dec-2016.
If the DOTCOM Act is not enacted you can ignore the second part of each of
those estimates, starting with "30 Congressional days". As you can see, even if
the Board does not accept a final proposal by March 10 (the final day of the
Marrakech meeting) it would still allow delivery to Congress from the N TIA by
May 11. In a May 6, 2015 letter to the Co-Chairs of the CCWG, Secretary
Strickling said "all work items identified... as prerequisites will need to be
implemented prior to the ending of the contract"; I read that as meaning that
ICANN can deliver the final Proposal to NTIA before internal implementation is
completed. A March 11th transmission to NTIA would give Congress sufficient
time to hold oversight hearings in late spring/early summer, but not too much
time that could lead to political mischief.
Again, my starting position is that we need to target January 14th as the date
we adopt a position on the current Proposal, and that everyone within ICANN
should work to get a final proposal to the NTIA as soon as feasible. I just
wanted to point out that the internal discussion can if necessary continue up
to Marrakech and still permit the transition to occur on October 1, 2016.
I hope all of that is helpful to fellow Council members, and I welcome feedback.
Best regards,
Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: James M. Bladel [mailto:jbladel@xxxxxxxxxxx]
Sent: Sunday, December 20, 2015 3:24 PM
To: McGrady, Paul D.; Phil Corwin; egmorris1@xxxxxxxxx; Drazek, Keith
Cc: council@xxxxxxxxxxxxxx
Subject: Re: [council] Council Way Forward on Accountability Proposal
Hi Paul -
Your last question is a good one, and I think somewhat dependent upon what
actions are taken by the CCWG between the close of comments on the 21st and
their earlier commitment to have a report ready for the Board in late January.
It's possible that they make substantive changes, prompting a new round of
comments, but I think we should be prepared for the contingency that they do
not.
The proposal/motion on the 14th would be to accept the comment as drafted by
the subteam (thanks for volunteering, btw), which will be a synthesis of GNSO
comments received on the 21st, in response to the Third Draft Report. If their
is a "Fourth Draft Report", then I agree we should restart this process to
consider any changes & new language. Rinse, repeat.
Thanks-
J.
From: "McGrady, Paul D." <PMcGrady@xxxxxxxxxxx<mailto:PMcGrady@xxxxxxxxxxx>>
Date: Sunday, December 20, 2015 at 14:00
To: James Bladel <jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>>, Phil Corwin
<psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>,
"egmorris1@xxxxxxxxx<mailto:egmorris1@xxxxxxxxx>"
<egmorris1@xxxxxxxxx<mailto:egmorris1@xxxxxxxxx>>, Keith Drazek
<kdrazek@xxxxxxxxxxxx<mailto:kdrazek@xxxxxxxxxxxx>>
Cc: GNSO Council List <council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: RE: [council] Council Way Forward on Accountability Proposal
Hi James,
I volunteer as well. I will be unavailable the 23rd through 26th. I will have
limited availability the 29-1st. Like you and Phil, I will be at NamesCon.
Regarding a mandatory up or down vote on the proposal by the 14th, do we expect
our issues to be addressed by the CCWG-Acct by then? If not, I wonder if it is
an up or down vote or if it is just a vote indicating that the subteam has
identified the issues of concern. I've not heard from anyone so far that
thinks the current CCWG-Acct proposal is issue-free and green-light-able in its
current form.
Can you elaborate a bit on what the Jan 14 vote will be? Thanks!
Best,
Paul
Paul D. McGrady Jr.
Partner
Chair, Trademark, Domain Names and Brand Enforcement Practice
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601-9703
D: +1 (312) 558-5963
F: +1 (312) 558-5700
Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> |
VCard<http://www.winston.com/vcards/996.vcf> |
Email<mailto:pmcgrady@xxxxxxxxxxx> | winston.com<http://www.winston.com>
[Winston & Strawn LLP]
From: owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx>
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of James M. Bladel
Sent: Sunday, December 20, 2015 1:12 PM
To: Phil Corwin; egmorris1@xxxxxxxxx<mailto:egmorris1@xxxxxxxxx>; Drazek, Keith
Cc: council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Subject: Re: [council] Council Way Forward on Accountability Proposal
Thanks Phil. And my response certainly didn't seem "timely," as any work we do
on this topic is already too late. :)
I agree that at least one intercessional meeting is necessary to get this done.
I'll work towards drafting the Pre-Christmas letter. The Subteam (and many
thanks to you, Keith & Ed for volunteering so far) should meet early in the
week of 3 JAN, with a Council-level discussion later that week (7 JAN as you
suggested), with a drop-dead formal vote on the issue scheduled for 14 JAN. I
believe this last date is already on our calendars, but I will ask Glen to
confirm.
Thanks again-
J.
From: Phil Corwin <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>
Date: Sunday, December 20, 2015 at 11:21
To: "egmorris1@xxxxxxxxx<mailto:egmorris1@xxxxxxxxx>"
<egmorris1@xxxxxxxxx<mailto:egmorris1@xxxxxxxxx>>, James Bladel
<jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>>, Keith Drazek
<kdrazek@xxxxxxxxxxxx<mailto:kdrazek@xxxxxxxxxxxx>>
Cc: GNSO Council List <council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: RE: [council] Council Way Forward on Accountability Proposal
James:
Thank you for your timely response to my inquiry.
I to would like to volunteer for the subteam. I'd also urge that we set times
and dates for Council calls to consider the draft Resolution - perhaps January
7th for preliminary discussion and, if necessary, January 14th for completing
our work.
I look forward to working with other Council members on this important task.
Best to all,
Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: Edward Morris [mailto:egmorris1@xxxxxxxxx]
Sent: Sunday, December 20, 2015 11:43 AM
To: James M. Bladel; Drazek, Keith
Cc: Phil Corwin; council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Subject: Re: [council] Council Way Forward on Accountability Proposal
Hi James,
A good plan forward.
I would also like to volunteer to help.
Ed
________________________________
From: "Drazek, Keith" <kdrazek@xxxxxxxxxxxx<mailto:kdrazek@xxxxxxxxxxxx>>
Sent: Sunday, December 20, 2015 4:24 PM
To: "James M. Bladel" <jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>>
Cc: "Phil Corwin" <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>,
"council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>"
<council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: Re: [council] Council Way Forward on Accountability Proposal
I think this make sense.
I volunteer to help.
Keith
On Dec 20, 2015, at 10:31 AM, James M. Bladel
<jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>> wrote:
Thanks, Phil. And generally, I believe your message below captures the
challenges we (and other SO/ACs) face when asked to provide feedback in a
compressed time frame, that also happens to collide with year-end holidays. My
availability is similar to yours, NamesCon included, and from talking with
Marika I think we should expect reduced support from Staff as well.
Given that our call on 17 DEC ran fairly long and you & several others had to
drop, I wanted to share the way we left things with Thomas Rickert regarding
GNSO feedback on the CCWG's latest draft:
- The SGs and Cs in the GNSO Community were working to analyze the report and
prepare their comments by the close of the comment period.
- The GNSO, as a Chartering Organization of the CCWG, was unlikely to submit
any formal comments by 21 DEC.
- Several SGs and Cs within the GNSO Community would, however, submit their
comments by Monday.
- The GNSO would provide feedback/approval to the final report upon
completion in January.
I propose that we draft a letter to the CCWG next week, reiterating that we
would not weigh in as an SO, but instead link to comments submitted by SGs and
Cs (target: 24 DEC). And next, that we form a subteam (me and any other
volunteers) to review submitted comments and draft a formal GNSO position for
review by the Council (target: 7 JAN).
Thoughts/comments/volunteers?
Thanks-
J.
From: <owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx>> on
behalf of Phil Corwin <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>
Date: Friday, December 18, 2015 at 9:49
To: GNSO Council List <council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: [council] Council Way Forward on Accountability Proposal
Fellow Councilors - and especially James, Heather, and Donna:
As I had to leave yesterday's extended Council call a few minutes before it
concluded, I am wondering whether any structure/schedule was agreed to for our
consideration of the 3rd CCWG-ACCT Proposal in our role as a Chartering
Organization?
Will we be scheduling additional calls to consider key aspects of the Proposal,
especially those that elicit comments expressing concern or suggesting
modifications? How will we handle drafting of a Resolution expressing Council's
view on behalf of the GNSO? And what is our target date for reaching a final
decision?
For the record, I am available and willing to participate in calls next week
(suggesting that any such call be after 12/21 to allow time for review of
submitted comments) and during the first week of January.
>From December 26-January 3rd I shall be on vacation and intend to unplug from
>the grid to the maximum extent possible.
>From January 9-13 I and 900-plus other members of the domain community will be
>attending NamesCon and I will have limited availability to join any call. I am
>departing the conference in the middle of its last day so that I can
>participate in the tentatively scheduled January 14th Council call.
Thanks and best regards,
Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
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