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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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