CCWG ACCT Meeting # 34 (26 May)
- Kimberly Carlson
- Aleksey Khapchenko
- Brenda Brewer
Attendees:
Members: Alan Greenberg, Becky Burr, Cheryl Langdon Orr, Eberhard Lisse, Izumi Okutani, James Bladel, Jorge Villa, Julia Wolman, Leon Sanchez, Mathieu Weill, Olga Cavalli, Par Brumark, Robin Gross, Roelof Meijer, Sebastien Bachollet, Steve Delbianco, Thomas Rickert (17)
Participants: Kavouss Arasteh, Avri Doria, Bob Takacs, Christopher Wilkinson, David McAuley, Edward Morris, Finn Petersen, Gary Campbell, Greg Shatan, Jonathan Zuck, Keith Drazek, Kevin Espinola, Maciej Tomaszewski, Mark Carvel, Paul Szynder, Pedro Ivo Silva, Phil Buckingham, Rudi Daniel, Sabine Meyer, Thomas Schneider, Tomohiro Fujisaki, Vrikson Acosta, Yasuichi Kitamura (23)
Legal Counsel: Edward McNicholas, Holly Gregory, Ingrid Mitermaier, Josh Hofheimer, Michael Clark, Miles Fuller, Tyler Hilton, Rosemary Fei (8)
Staff: Adam Peake, Alice Jansen, Berry Cobb, Kim Carlson
Apologies:
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Transcript CCWG ACCT - Call #34_26 May.doc
Transcript CCWG ACCT - Call #34_26 May.pdf
Recording
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p30issltzhv/
The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-26may15-en.mp3
Proposed Agenda
CCWG-Accountability Meeting #35 – Tuesday 26 May 2015 from 12:00 – 14:00 UTC
1. Welcome, Roll Call & SoI
2. Feedback received on CCWG proposal
3. Next steps on discussions regarding UAs and other membership models (follow-up on recent mailing list activity)
4. Legal group and engagement with lawyers
5. Work plan post BA - 2nd public comment
6. AoB (introduction of video if available)
Notes
1. Welcome, Roll Call & SoI
CCWG is encouraged to provide outstanding SoIs - staff can assist as needed.
2. Feedback received on CCWG proposal
It would be useful to receive a short update on discussions in our respective communities. As a reminder we have currently received 4 comments. The CWG-stewardship is managing 50 comments. It would be valuable to share what comments are currently being drafted.
- Mathieu was invited to a ccNSO Council call where the CWG and CCWG proposals were discussed. We should expect that the Council will ask us to highlight which of our proposals affect ccTLDs and in which manner. There might be an official correspondence.
- BC will be sending in comments: enforcing powers may require that SO/ACs adopt member status under California law and will encourage the CCWG to provide further explanation on this model. Suggestion to start answering these questions. It was found that slides prepared by Xplane were a very helpful way to digest report content.
- Community is seeking clarification about members and UA structure
- RySG will be submitting comments that are largely supportive.
- IPC is drafting comments that are largely supportive. Jonathan will coordinate with Becky on comments.
- Stress Tests Work Party will determine how assessments will change if lack enforceability.
- As we make decision about type of UAs and variation, stress tests should also look at accountability issues in particular
--> Specific solutions for specific stress tests.
3 Next Steps on Discussions regarding UAs and other membership models
There have been very thorough and fruitful discussions regarding membership model and UAs. Many concerns and questions remain to be answered: accountability of members etc being one.
Should we adopt membership model or appoint Chairs to be Members of ICANN?
UAs provide legal vehicle for community to hold ICANN accountable. We need legal vehicle to achieve goals.
UAs is not the only legal vehicle that can provide us with their empowerment. There have been discussions about how corporation in Switzerland could achieve this for instance. UAs has been the easiest model.
SO/AC Chairs can be appointed as member but this triggers new questions.
Hybrid model could be adopted and would function: SO/ACs could choose to form UAs while others may choose to appoint their Chair.
Bylaws would recognize each member or the figure of the Chair. Bylaws would be recognizing the position of the Chair.
Chair would act on behalf of SO/AC. UAs would be governed by rules stated by each SO/AC.
To avoid: 1) Chair used as synonym of individual; 2) Equate legal personhood of individual to the one grand to Chair
Key questions: 1) whether it is possible for Bylaws to recognize only function or figure instead of natural person, whether Bylaws would provide powers to position rather than person; 2) whether the risks could increase through membership model.
Feedback:
- If you have not uniformed arrangement between SO/ACs - when come to voting, there will be different criteria, this won't be normal. We address one accountability question but transfer another accountability question. Clarity is needed on overall picture.
--> This needs to further discussed but we need to come to a conclusion on how to address this issue. Answer could be that each SO/AC would apply methods.
- We need to be careful that it not necessarily be Chair of SO/AC but rather the Chair SO/AC designates. We may want to distribute the position (one per region etc). We do not want to make it sound like SO/AC Chair. There may well be situations where we want to put someone in position but this person cannot. We might want to consider replacements. ALAC has certain rules when it comes to accountability criteria. We have processes that can be written in Bylaws, Charters etc to ensure criteria are being met. Can we tie responsability to a rank?
- It can be another person that could be designated. We must avoid complicating this. Most SO/ACs have formal processes. In favor with proceeding with this route.
- UAs is really consistent with trying to make SO/ACs into members. Looking at Chairs concept, agree that acting as a conduit for the will of SO/AC. It is symbolically appropriate.
- 1) We need to have the representatives of SO/ACs in the community body accountable to their own SO/ACs we need enforceable tools against these representatives 2) we need to have enforceable tools against ICANN decision that would not respect community body decision 3) we keep things as simple as possible. Do the options we are considering have these requirements? Are SO/ACs already UAs? Legal counsel to clarify.
- Holly said we might already be UAs. There is no difference but difference in how it can be explained to others and how will it be perceived adds a level of complexity. Existence of UA and its descriptions makes it even more complex.
--> Agrees with three requirements - there are a number of options: 1) UAs as members ; 2) Human beings designated by UAs as members. You need some entity to have enforceable right. There needs to be a level of intent, basis/minimal rules to help indicate who is involved in organization. There may be benefits in being registered as UA. Discussion around UAs have added a degree of complexity.
--> We are fine-tuning to make things as easy as possible. The member model is best way for community to get powers. Whether the SO/AC is member or a delegate appointed by SO/AC, you need some power to ensure that that person is respectful of desires of community group he/she represents. Traditionnally the way to get there is to have group be legal person itself. The additional benefit you would have by registering UAs as an entity, you get liability protection that comes with it. As many rules you have, you have formed intent to create UA, we are advocating final step of registering for legal benefit.
- ICANN will require certain legal balance: enforceability that considers reality.
- Are we on same page with respect to enforceability? If the group considers robust enforceability as a requirement, then we are taking about membership model. Question is how do we implement membership model. Using UAs would be a very good implementation model. Concerns about complexity this might add. If we have set of requirements that are implemented including UAs, would you still go for other option even if we had to sacrifice goals? We need to communicate the whole accountability architecure in professional matters.
- The reference that some SO/ACs may already be UAs, we do not want SO/ACs to be UAs but to have a shadow. Perceived complexity of how people will understand ICANN. There has been a discussion on potential problems of if we had ability to go to Court we end up with possibility. When writing these rules can we waive the right to go to court?
- It might be useful to have a comparitive table betweem UA and non UA membership - pros and cons - degrees of implementation and complexity.
- Concerned about discussion - if we want to end up being organization where we are able to go to Court, it is not an organization I would like to join. Best way would be international organization.
- Conversation is missplaced - enforceability issue is about having authority that we are putting in Bylaws. It is not about going to Court.
- Governance arrangements's basis principle is to prevent going to Court. The fact that you can go to Court is a credible threat so that no one goes to Court. We need to acknowledge feedback on complexity. Suggestion would be for the CCWG to create UA - we submit to group draft articles of association based on legal counsel's legal input. Anyone on this list can comment and add concern on UA. We can report to community first hand.
- If you create a legal person, perception that might lose multistakeholder model soul, it does not have any reality attached to it.
- It is not the legal process, it is the perception that it will cause among others that is problematic. Is it possible to waive litigation?
- Having ability to go to Court and ability to remove Board directors are the two powers/authorities that make it so unnecessary
- Powers that are put in place are far more complex that anything having to do with UAs. Struggling to understand why UAs are causing so much concern when it is the least complex part of this entire process. You can certainly waive rights to Courts but why create such a complex set if not going to use them?
- Setting up a UA documenting how we do it and explaining steps that need to be taken might help explain concept to community together with far more complex escalation path we have already been working on. Suggestion: Cochairs to talk to Comms Team to see if can facilitate comms to community.
ACTION ITEM - CoChairs to reach out to Comms Team to analyse feasibility.
- Overall structure may be complex and may benefit from further explanation. We need to see how we can boil complexity.
- Does this structure increase opportunity for individual members to litigate on their own without community consensus?
- Threshold could probably be set (member approval before litigation).
ACTION ITEM: Legal counsel to do some research on litigation threshold.
- How do we have people understand the overall process? A lot of this is about explanability. Issue of individual members taking action.
ACTION ITEM: CCWG to go through memorandums put together by counsel on UAs - https://icann-community.atlassian.net/wiki/download/attachments/97715875/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2
We will reach out to comms Team to see how we can explain this.
- Complexity for UA membership implementation needs to be added.
--> We need to define scenarios first and will be able to provide clear table.
ACTION ITEM - Provide clear comparative documentation on models.
Legal Group & Engagement with Lawyers
We had discussion on last call where concept of rearranging legal subteam was suggested. We have reached out to ICANN to provide us with information on legal costs incurred so far. We have hit 1 million dollars for CCWG. We will be asking for timesheets and more detail on time being sent on what subject.
Variety of expertise, getting lawyers up-to-speed and research on legal requirements/implementation added to legal costs.
1,7 million for both CCWG and CWG
We will be exercising more control on costs.
Work Plan Post BA - Second Public Comment Period
Public comment will end on 3 June. Staff will populate comment review tool by June 7. Our regular call on June 9 is going to be extended by an hour to ensure everyone is comfortable the PCRT was populated in appropriate manner. That will kick WP work on analysing comments. June 16 will be freeze date for WPs' output. We will be assessing which parts raise concerns, divergences, agreements etc.
BA schedule:
- Board discussion on Sunday
- Working session on Wednesday and Thursday
- We are working on engaging each SO/AC to hold dedicated sessions.
We will then move into phase where our goal will be to launch a 40-day comment period. We will attempt to finalize proposal in time for Dublin meeting which means we will need to finalize proposal by October 9. We have the month of July to finalize document for comment. Do we plan for a F2F or intensive session? Do we move fast and finalize this before or after July 20? Is it currently foreseen that there would be a need to have specific work groups or support for that period? There is some support among Chairs and Rapporteurs for a F2F in July.
Feedback:
- What happened to consensus work plan?'
--> We are planning to try and close as many items as early as possible if we get consensus on IRP or reconsideration process e.g.. This is planning for outstanding issues in July. It is not replacing the approach described by Thomas.
- July 16 difficult.
ACTION ITEM - Cochairs to follow up on F2F/intensive session on list.
Objective is to select dates and determine format asap.
6. A.O.B
Video is not available. As part of engagement activity, we are planning to do videos to help community understand what we are working on. Pilot is currently being finalized by comms Team. We will review and will share with group.
Lawyers have not received stream of emails on UAs.
ACTION ITEM - staff to investigate whether lawyers have access to mailing list.
Lawyers would welcome guidance on what is needed for Buenos Aires.
ACTION ITEM – Thomas to check whether GAC wants a briefing session
ACTION ITEM - Cochairs to provide lawyers on clear Buenos Aires expectations
Action Items
ACTION ITEM - CoChairs to reach out to Comms Team to analyse feasibility.
ACTION ITEM: CCWG to go through memorandums put together by counsel on UAs - https://icann-community.atlassian.net/wiki/download/attachments/97715875/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2
ACTION ITEM - Provide clear comparative documentation on models
ACTION ITEM - Cochairs to follow up on F2F/intensive session on list.
ACTION ITEM - staff to investigate whether lawyers have access to mailing list.
ACTION ITEM – Thomas to check whether GAC wants a briefing session
ACTION ITEM - Cochairs to provide lawyers on clear Buenos Aires expectations
Documents Presented: Slides_hybrid_membership LATEST.pptx
Chat Transcript
Kimberly Carlson: (5/26/2015 05:06) Welcome to CCWG Accountability Meeting #34 on 26 May! 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
ARASTEH: (05:52) Pls kindly advise that I will be dialed
Kimberly Carlson: (05:52) Yes, I will ask the operator to dial you now
Mathieu Weill, ccNSO, co-chair: (05:52) Hello there
ARASTEH: (05:52) I AM NOT CONNECTED
ARASTEH: (05:53) PLEASE ADVISE TO DIAL ME UP
ARASTEH: (05:54) Dear Brenda
Kimberly Carlson: (05:55) yes, I hear you
Yasuichi Kitamura (At-Large): (05:55) hi, all
Yasuichi Kitamura (At-Large): (05:56) yes, I can hear you.
ARASTEH: (05:56) I AM NOT CONNECVTED
Ingrid Mittermaier (Adler Colvin): (05:57) Good morning.
Holly Gregory (Sidley): (05:57) good morning
Michael Clark (Sidley Austin): (05:57) Good morning
Pär Brumark (GAC Niue): (05:57) Hi all!
Jonathan Zuck (IPC): (06:00) Yo, yo, yo!
Cheryl Langdon-Orr: (06:00) hi all.
Josh Hofheimer (Sidley): (06:01) Hello all
Mathieu Weill, ccNSO, co-chair: (06:01) Who is on a submarine ?
David McAuley (RySG): (06:01) I too wondered about pinging Mathieu - seems ship has surfaced now
Sabine Meyer (GAC - Germany): (06:03) hello everyone!
Eberhard Lisse [.NA ccTLD Manager]: (06:04) Mathieu, traditionally, the answer is: "Pong"
Holly Gregory (Sidley): (06:10) UA status is an inexpensive organization structure and should not pose any significant liability concerns as explained in several of our memos
Rudi Daniel: (06:10) good day all
Keith Drazek: (06:10) Thank you, Holly.
Pedro Ivo Silva [GAC Brasil]: (06:11) Hi all. Soory, no mic here. The Brazilian Government is also drafting comments, to be submited soon.
Leon Sanchez (Co-Chair, ALAC): (06:12) Excellent @Pedro!
Holly Gregory (Sidley): (06:12) good point to test re what happens without enforceable powers
Cheryl Langdon-Orr: (06:13) thanks for that update @steve
David McAuley (RySG): (06:13) Good suggestion Steve
Leon Sanchez (Co-Chair, ALAC): (06:14) So I think the question on "who guards the guardians?" remains to be solved
Holly Gregory (Sidley): (06:14) Leon, that question can continue on into infinity
Cheryl Langdon-Orr: (06:14) indeed
David McAuley (RySG): (06:14) Agree @Holly
Jonathan Zuck (IPC): (06:15) Hmm. That sounds like a red herring to me. The ICANN community is accountable to the internet community and the only possible way to enforce that "accountability" is to come volunteer at ICANN I think.
avri doria: (06:15) Holly, true, still no reason not to understand the first level or two of guardians.
Sabine Meyer (GAC - Germany): (06:15) or creating a triangle, for example
Holly Gregory (Sidley): (06:15) Agree Avri!
Jonathan Zuck (IPC): (06:17) I think this is really just a conversation about who gets the last word and we're basically agreed that it should be the community. There might be accountability issues with the structures we create but "who holds the stakeholders accountable" is way outside our scope, confident in our diversty
Mathieu Weill, ccNSO, co-chair: (06:18) @Jonathan: it may not end up covering everything but it's important to test. There are ways to improve accountability (transparency, consultation, independence, ...)
Kimberly Carlson: (06:19) Please mute line if not speaking - thank you
Holly Gregory (Sidley): (06:19) Members can be unincorporated association or human beings -- in each case a "legal person"; having humans serve as members does not obviate the need for UAs however, because you will likely want a legally recognized group to seat the human (chair) and have rights to remove
Mathieu Weill, ccNSO, co-chair: (06:20) @Holly: if the Chair is the member (say: Alan Greenberg) with no UA, what happens when Alan is no longer chair of ALAC ?
Alan Greenberg: (06:21) My real question is not that Mathieu, but can I become the Memeber by nature of my being Chair (or holding some other specific office in At-Large).
Holly Gregory (Sidley): (06:21) Mathieu, you will need a mechanism to ensure that the membership is tied to the position
Mathieu Weill, ccNSO, co-chair: (06:21) Agree Alan, that's another way to ask the question
David McAuley (RySG): (06:22) Holly, would a bylaw naming the chairs as members be sufficient?
Holly Gregory (Sidley): (06:23) Alan, yes- there could be a provision for certain persons to be members due to their positions. still have issue of how to ensure that ALAc can enforce right if dispute arises re who the ALAC chair is
James Bladel - GNSO: (06:24) Are there any scenarios/situations in which a chair would not be eligible (due to their "day job" or nationality or something) to be a Member?
Mathieu Weill, ccNSO, co-chair: (06:25) @James : we would have to clarify our requirements I guess. WP1 did some work on that a while ago
Josh Hofheimer (Sidley): (06:25) To add to Holly's comment, the group also would need a means to ensure that the chair was voting as the group desired when it comes to powers reserved to the "Members," otherwise you will need a mechanism to remove the chair of the group
Alan Greenberg: (06:25) @Holly, The ALAC has explicit rules regarding how anyone (Chair or other appointee) can be removed by a formal decision of the ALAC.. I presume that other SO/ACs either have similar rules or could have if they wished.
Roelof Meijer (SIDN, ccNSO): (06:26) @Holly: but that's an intenal SO/AC matter, how is determinded who the chair (really) is, isn't it? That process is made clear in the bylaws relevant to the SO/AC
Steve DelBianco [GNSO - CSG]: (06:26) @Kavous -- it's not unusual. Some of ICANN board directors are nominated and others are elected. It's a mix
Holly Gregory (Sidley): (06:27) David, a bylaw would work, but the issue continues re what happens when that person does not act as the group he or she "represents" desires; need ability of the underlying group to remove as a member and replace for example with a new chair -- and if a dispute arises in that group, how to ensure enforceable rights -- which brings us back to UAs
Cheryl Langdon-Orr: (06:27) @james would think it should be an officer's of the AC/SO. ie. Chair or their delegate
Greg Shatan: (06:27) @Josh, these could be written into the ICANN bylaws or more properly into the bylaws of the relevant SO/AC.
Cheryl Langdon-Orr: (06:29) exactly @alan
Jonathan Zuck (IPC): (06:29) NOT the "King." They're the voice, the decisions all get made using existing structures
Holly Gregory (Sidley): (06:31) Alan, agree so long as there are clear rules that are enforceable for the group to remove the person that is designated by the group
Robin Gross [GNSO - NCSG]: (06:32) Along the lines of James' question, could a person from an OFAC country be able to be a Member?
Holly Gregory (Sidley): (06:32) by the way, if the groups have rules at the level we are describing, it is fairly likely that they could be considered UAs already
Mathieu Weill, ccNSO, co-chair: (06:33) @Holly: wow ! that would be significant news !
Ingrid Mittermaier (Adler Colvin): (06:33) Agree with Holly. Need to make sure control over who represents a SO/AC stakeholder as member is enforceable.
Holly Gregory (Sidley): (06:34) Josh and I are together and woul like to respond
Josh Hofheimer (Sidley): (06:34) +1 @Holly and Ingrid.
Leon Sanchez (Co-Chair, ALAC): (06:34) Will go to you @Holly
Michael Clark (Sidley Austin): (06:35) Agree as well with Josh Holly and Ingrid
avri doria: (06:37) that has been my hope that there was an identity between the SOAC and the UA.
Thomas Rickert, CCWG Co-Chair: (06:39) Alan, are you against the idea as such or do I hear you correctly that you are concerned about how we communicate this?
Alan Greenberg: (06:40) @Thomas, by having the existence of a UA, we add the complexity. It is more than just needing a good communications vehicle.
Keith Drazek: (06:40) mute phones and computers please
Jonathan Zuck (IPC): (06:43) I don't think it adds any real operational complexity. IT's a legal nuance thta won't really affect how we do business at ICANN
Holly Gregory (Sidley): (06:45) Jonathan, Agreed
Sabine Meyer (GAC - Germany): (06:45) are there any specific criteria for this intent?
Holly Gregory (Sidley): (06:46) Registration shows the intent as does a wrting like a set of very basic bylaws that expresses the intent
Thomas Rickert, CCWG Co-Chair: (06:46) please mute your lines when not speaking
David McAuley (RySG): (06:46) Pllease mute if not speaking
Mathieu Weill, ccNSO, co-chair: (06:46) @JOsh, Holly: with what you are saying, the powers might work even if some SO/ACs did NOT register as UAs right ? They would not benefit for the same degree of enforceability and liability protection, but the system would work out ?
Robin Gross [GNSO - NCSG]: (06:46) lots of noise on the line
Sabine Meyer (GAC - Germany): (06:47) thank you Holly
Holly Gregory (Sidley): (06:47) Yes Mathieu -- it is a risk issue, and the community or groups in the community may be satisfied with taking on the risk of unenforceability
Mathieu Weill, ccNSO, co-chair: (06:48) Thanks. That could put concerns of some to rest, if they do not HAVE to create the UA
Alan Greenberg: (06:48) An AC/So may de facto be an UA, but remember, the UA we are talking about is NOT the AC/SO but adifferent grouping of individuals that should map to the AC/SO.
Sabine Meyer (GAC - Germany): (06:48) Mathieu, it might also create concerns to tell some SO/ACs that they are in fact a UA already.
David McAuley (RySG): (06:48) Can the chairs be the named members and SOs/ACs that want to become UA can do so but others might retain right to become UA in future if enforcement action needed – would that help?
Holly Gregory (Sidley): (06:49) They do not HAVE to create UAs but your lawyers want to be clear about the risks.
Greg Shatan: (06:49) @Alan, I think Holly's point was that we could skip the "mapping" concept if we accept the idea that an SO/AC is a UA.
Mathieu Weill, ccNSO, co-chair: (06:50) @Sabine: hum... I can't see which group would have such concerns... ;-)
Holly Gregory (Sidley): (06:50) But remember that only legal persons can be membe-- so UAs or humans
Sébastien (ALAC): (06:50) But is unenforceability really a risk? Or how we need to work within ICANN among equal partners?
Roelof Meijer (SIDN, ccNSO): (06:50) @Sabine: if I understood it correctly, you can only be a UA if you intend so. So without the intention (=present situation), SOAC's are not UAs
Sabine Meyer (GAC - Germany): (06:50) thanks to my legal training I only ever speak in hypotheticals.
Holly Gregory (Sidley): (06:51) Agree Thomas re lack of complexity in UAs
Sabine Meyer (GAC - Germany): (06:52) But the threshold for such an intent to be assumed might be rather low, Roelof. I admittedly read some German principles into this.
Josh Hofheimer (Sidley): (06:53) @Alan, our point is that it may already be a reality that some or all of the SO/ACs may be de facto UAs.
Holly Gregory (Sidley): (06:53) The shadow entities certainly add complexity in terms of perception and consideration should be given to whether the "shadow" aspect is truly necessary.
Steve DelBianco [GNSO - CSG]: (06:53) What may be complex to Create could well be simple to administer. Let's look to long-run for effective powers we can simply enforce
Jonathan Zuck (IPC): (06:54) +1 Steve!
Jonathan Zuck (IPC): (06:54) we can't remove the board members without enforceability either
Thomas Rickert, CCWG Co-Chair: (06:55) Jonahan +1
Holly Gregory (Sidley): (06:55) he ability toemove the board needs enforceability
Thomas Rickert, CCWG Co-Chair: (06:55) @Alen, pls look at Jonathan's and Hollie's remarks.
Alan Greenberg: (06:55) @Jonathan, I said that we WOULD need the ability to go to court over refusal to be removed.
Thomas Rickert, CCWG Co-Chair: (06:55) So you ar willing to compromise on enforceability, right?
Josh Hofheimer (Sidley): (06:56) @Alan, we already have an IRP and dispute resolution mechanism that is being considered by CCWG. But in the end, the Board also needs to recognize the "power" of the community, which can be best accomplished through the Member model, with enforceable powers reserved to the Members.
Holly Gregory (Sidley): (06:56) We are happy to create a comparison chart but we have provided this information in other forms.
Mathieu Weill, ccNSO, co-chair: (06:57) @Holly: let's not duplicate
Alan Greenberg: (06:57) What I had said about waiving the right to go to court was for enforcing actions OTHER than removal of board members.
Jonathan Zuck (IPC): (06:57) I'm not willing to compromise on enforceability for what really seems to be a thin objection. We would hope it NEVER came to that and the truth behind Alan's statement that it would be time consuming to go to court so we would likely NOT do that.
Thomas Rickert, CCWG Co-Chair: (06:57) @Alan, but then you would still need the legal vehicle to do that...
Rosemary Fei: (06:57) My apologies for joining late -- alarm failure
Steve DelBianco [GNSO - CSG]: (06:57) It's great to have Sidley and Adler responding to so many of our questions and hypotheticals, but we might need to watch our legal fees
Thomas Rickert, CCWG Co-Chair: (06:58) Jonathan, my comment was directed at Alan (in case you thought it was for you)
Leon Sanchez (Co-Chair, ALAC): (06:58) Welcome @Rosemary .-)
Alan Greenberg: (06:58) @Thomas, YES, this is a DIFFERENT sub-discussion about legal entities.
Jonathan Zuck (IPC): (06:58) yeah, I knew that. It just inspired my response. ;)
Josh Hofheimer (Sidley): (06:58) +1 Jonathan. The fact that you can go to court is a credible threat, and makes it so you don't have to.
Greg Shatan: (06:58) @Steve, they won't charge us extra for answering on the call....
Keith Drazek: (06:58) All of the accountability mechanisms we're currently designing rely entirely on enforceability. Without it, the community becomes advisory and the Board remains the ultimate authority.
Steve DelBianco [GNSO - CSG]: (06:58) @Josh -- would you please say THAT on the call bridge? It's a keypoint
Holly Gregory (Sidley): (06:59) We do not mean to propose that there will be regular disputes that need to be resolved in court. We are considering worst case scenarios. But again, this is a risk issue and you may decide that you don't need enforceable powers. Agree Becky
Josh Hofheimer (Sidley): (06:59) +1 Becky!!
David McAuley (RySG): (06:59) Agree w/Becky and Keith
James Bladel - GNSO: (06:59) +1 to Becky & Keith
Greg Shatan: (07:00) +1 to Becky & Keith.
Thomas Rickert, CCWG Co-Chair: (07:00) +1 Becky!
Keith Drazek: (07:00) Everyone should read Becky's email from last week on this discussion.
Thomas Rickert, CCWG Co-Chair: (07:00) +1 Keith
Holly Gregory (Sidley): (07:01) I dont believe that Beckky's email was shared with the lawyers.
Steve DelBianco [GNSO - CSG]: (07:01) +1 Becky
Holly Gregory (Sidley): (07:02) Leon, I am not sure that we are receiving access to emails between the members of CCWG. Could someone look into this?
Leon Sanchez (Co-Chair, ALAC): (07:02) The ability to go to Court is the stick that will keep us from actually going to Court
Alan Greenberg: (07:04) @Mathieu. I don't think ANYONE is saying that the act of creating a UA is too complex.
Leon Sanchez (Co-Chair, ALAC): (07:04) That is so kind of you Mathieu :_)
Holly Gregory (Sidley): (07:04) We provided very basic drafts of what is required to create including draft articles/bylaws
Sabine Meyer (GAC - Germany): (07:04) exactly, Alan.
Mathieu Weill, ccNSO, co-chair: (07:05) @Holly : yes Holly, page 9 of the UA memo
Michael Clark (Sidley Austin): (07:06) Agree with Mathieu and Leon. The goal of bylaws and other structures is to build in procedures that would obviate the need to go court and, if you do have to go, be confident that the procedures of the organization would be upheld.
Mathieu Weill, ccNSO, co-chair: (07:06) @Alan: not only creating, also designing accountability
Holly Gregory (Sidley): (07:07) Well said Michael Clark
David McAuley (RySG): (07:07) The legal docs we received are available here: https://icann-community.atlassian.net/wiki/spaces/acctcrosscomm/pages/97715875/Legal+Subteam+Documents under “RESPONSES FROM SIDLEY AUSTIN, ADLER & COLVIN”
Holly Gregory (Sidley): (07:08) y have the other rights if you are not going to enforce them?
David McAuley (RySG): (07:08) good question Holly
avri doria: (07:08) can we wave litigation for mediation. i note it is mostly lawyers arguing for litigation. it is a norm for them, it is not for the rest of us.
Jonathan Zuck (IPC): (07:09) mediation isn't binding @Avri. Arbitration maybe but that starts to feel more like court
Rosemary Fei: (07:09) Waiver unless group votes, not total waiver
avri doria: (07:09) i tough mediation could indeed be binding.
Greg Shatan: (07:09) Mediation is merely a negotiation between two parties, with a neutral party facilitating the discussion. That won't really help us here.
Keith Drazek: (07:09) I don't think anyone is arguing for litigation.
avri doria: (07:09) .. thought ...
Leon Sanchez (Co-Chair, ALAC): (07:09) Plus arbitration is always able to be challenged in court
Greg Shatan: (07:10) Arbitation is just privately-contracted litigation.
Jonathan Zuck (IPC): (07:10) there is literally no such thing as a binding mediation
Mathieu Weill, ccNSO, co-chair: (07:10) @Avri : I see no one arguing for litigation ? I hear arguments about "credible threats"
Rosemary Fei: (07:10) Generally, informed consent to waive right to go to court can be uenforceable
Alan Greenberg: (07:10) From *my* perspective (and I am not talking on behalf of anyone) is that the iron-clad ability to sleectively or en masse remove directors WOULD be sufficient.
avri doria: (07:10) Leon, even if that is the case, and mostly those are thown our becasue the waiving was done properly, it is still a better step.
Rosemary Fei: (07:10) Sorry, "enforceable"
Rosemary Fei: (07:11) Agree, holly, having individuals as members will be far more complex
Leon Sanchez (Co-Chair, ALAC): (07:11) @Alan to have the ability to remove directors we still need legal personhood
Jonathan Zuck (IPC): (07:12) I'm more fond of Alan's suggestion that we raise the consensus threshold for going to court
Greg Shatan: (07:12) I'm a transactional lawyer. I'm almost never in court or involved in litigation. My wife, a psychologist with a social services agency, is in court much more often than I.
Alan Greenberg: (07:12) @Leon, YYYEEESSS. As I said earlier, these are TOW DIFFERENT DISCUSSIONS that we are having in parallel.
Alan Greenberg: (07:12) TOW=TWO
Leon Sanchez (Co-Chair, ALAC): (07:12) @Alan :P
Josh Hofheimer (Sidley): (07:13) +1 Leon
Keith Drazek: (07:13) We probably need a one-pager that explains the WHY and HOW on UAs.
Holly Gregory (Sidley): (07:14) Keith, we are happy to assist the communications team with that
Mathieu Weill, ccNSO, co-chair: (07:14) We are working on a couple of narratives
Julia Wolman GAC Denmark: (07:14) +1 Keith
Rudi Daniel: (07:14) Such a live test proposition should be undertaken by the stress test team ?
Mathieu Weill, ccNSO, co-chair: (07:14) short stories
Josh Hofheimer (Sidley): (07:14) @Keith, the memo we provided on UAs previously goes into this and answers a lot of FAQs
Mathieu Weill, ccNSO, co-chair: (07:15) Legal memo on UAs is : https://icann-community.atlassian.net/wiki/download/attachments/97715875/REVISED%20Memo%20on%20Unincorporated%20Associations%20May%203%2C%202015-207411876-v4.pdf?version=1&modificationDate=1430694085000&api=v2
Josh Hofheimer (Sidley): (07:15) @Alan, to your point, isn't it the intent of the CCWG that disputes be adjudicated outside of court, through IRP and escalation measures, and ultimately through arbitration.
Keith Drazek: (07:17) Good question Jonathan. I assumed the members would need to decide as a group and that there'd be a minimum threshold.
Alan Greenberg: (07:18) @Josh, yes, that seems to be the intent at the moment, but intent today does not change what could happen in the furute.
Rosemary Fei: (07:19) Only if individuals are members
Thomas Rickert, CCWG Co-Chair: (07:19) @Alan - but then it is about communication!
Jonathan Zuck (IPC): (07:20) At-large is FAR more complex than UAs ;)
avri doria: (07:21) i think both GNSO and At-LArge about the same in terms of levels of complexity.
Leon Sanchez (Co-Chair, ALAC): (07:21) that is some nice music
Steve DelBianco [GNSO - CSG]: (07:22) But the INCREMENTAL complexity of UA's seems to be very slight
Alan Greenberg: (07:22) @Avri, yes, and most people NOT in one of those orgs do not understand the other, and in fact, many WITHIN an org do not really understand how tey work. I can give lots of examples.
avri doria: (07:24) most people do not spend time understanding process, they only want their issue taken care of.
avri doria: (07:24) and we all wnat a simple deau ex machina to solve all issues.
Mathieu Weill, ccNSO, co-chair: (07:24) @Avri: I wish it were so ;-)
Robin Gross [GNSO - NCSG]: (07:25) Is this for CCWG only, or also CWG?
Josh Hofheimer (Sidley): (07:26) We'd like to get some clarity from CCWG which Member rights they would like to determine can be limited to be enforced only though "consensus" or majority vote
avri doria: (07:26) if that is their costs, what does that say about the amount of value the rest of us have plowed into the effort. when thinking abou tthe cost, we need to think about how it made the rest of the work possible and to try and decrease thhe amount of free labor we needed to donate to ICANN.
Mathieu Weill, ccNSO, co-chair: (07:26) @Robin: CCWG
Mathieu Weill, ccNSO, co-chair: (07:27) @Josh: I think we still need to discuss around that
Mathieu Weill, ccNSO, co-chair: (07:27) @Avri: agreed !
Robin Gross [GNSO - NCSG]: (07:28) thanks.
Jonathan Zuck (IPC): (07:28) no
Alan Greenberg: (07:29) @Avri, or at least have ICANN show more appreciation (in concrete ways) for what they ARE getting for free!
avri doria: (07:29) Alan, what a dreamer!
Josh Hofheimer (Sidley): (07:29) @mathieu, thank you. We will await further guidance on that issue, unless you want to discuss more on this call?
Leon Sanchez (Co-Chair, ALAC): (07:29) @Avri with the last statistic, We could say that volunteer work accounts for mor than 4 million dollars in billable hours. That's only MY rough estimate
Adam Peake: (07:32) Board: Sunday, June 21, 3pm to 4pm BA local time.
Holly Gregory (Sidley): (07:33) two points: the lawyers are no longer receiving the CCWG emails
Leon Sanchez (Co-Chair, ALAC): (07:33) @Holly there has been little or no traffic in the legal sub-team list
Leon Sanchez (Co-Chair, ALAC): (07:34) @Holly we need to re-arrange how we communicate with you
Jonathan Zuck (IPC): (07:34) F2F's are the most productive, phone next, listserv least
Rosemary Fei: (07:34) Leon, you asked if we were following the UA discussions, but we didn't get those emails.
Keith Drazek: (07:36) can staff please post the email archive link here in chat?
Robin Gross [GNSO - NCSG]: (07:36) We can do an "intense 2-day mtg" via Adobe Connect rather well and with far less disruption from all the travel
Holly Gregory (Sidley): (07:37) Leon, we agree that we need to discuss how we communicate, and also what the expectations are for Buenos Aries.
Leon Sanchez (Co-Chair, ALAC): (07:38) @Holly yes
avri doria: (07:38) If i remeber correctly the memo say that having the SOAC be the UA, was possible but had extra complexities. I do not remember reading what those extra complexities were. or what it took to get beyond them.
Izumi Okutani (ASO): (07:39) I like the idea of discussing in July. I prefer Robin's suggestion for adobe intense meeting more than face to face, but I can do face to face if needed.
Leon Sanchez (Co-Chair, ALAC): (07:39) @Rosemary yes this is something we need to work on so we don't flood your inbox with the many e-mails that we exchange in the main mailing list
Sabine Meyer (GAC - Germany): (07:39) how much would you need to rely on CCWG members to establish consent for the 2nd draft report?
avri doria: (07:39) but sometime i dont perfectly understand what i am reading
Leon Sanchez (Co-Chair, ALAC): (07:40) @Avri I don't think those extra complexities were addressed. Will have to review the memorandum again myself :-)
Kimberly Carlson: (07:41) Email archive link: http://mm.icann.org/pipermail/accountability-cross-community/
Alice Jansen: (07:42) Hi Kavouss, the transcripts can be found on this page: https://icann-community.atlassian.net/wiki/spaces/acctcrosscomm/pages/97716864/CCWG+ACCT+Meeting+33+19+May
Keith Drazek: (07:43) Thanks Kimberly. Holly and Josh, the emails on UA are in the archive at that link.
Rosemary Fei: (07:43) Do you want us to look at it? Or not? I'm hearing that you want to control what we look at more closely.
Rosemary Fei: (07:44) I believe that's why we were taken off the list.
avri doria: (07:44) you were takne off the list? by whom? why? I just assumed you all were stil lthere.
avri doria: (07:45) of course the lists are openninly archived and avaialble. to all.
Leon Sanchez (Co-Chair, ALAC): (07:45) @Rosemary these are two different lists. You weren't removed from the list. It's just the discussion happened on a different list
Rosemary Fei: (07:45) Avri, we don't know. We just learned today that we were taken off. We just thought it had gotten very quiet.
Leon Sanchez (Co-Chair, ALAC): (07:45) @Avri the discussion happened on the main list while the lawyers are subscribed to the legal sub-team list only
Leon Sanchez (Co-Chair, ALAC): (07:46) @Rosemary just to be clear nobody has taken off nobody from any list
Mark Carvell GAC - UK Govt: (07:46) The CCWG session is in the GAC agenda for the Weds at 11.00-12.30.
Mathieu Weill, ccNSO, co-chair: (07:46) Thanks Mark !
Pär Brumark (GAC Niue): (07:46) Thx!
James Bladel - GNSO: (07:46) Thanks.
Rudi Daniel: (07:46) thx
Mathieu Weill, ccNSO, co-chair: (07:46) Bye everyone !
Robin Gross [GNSO - NCSG]: (07:46) thanks, bye.
Michael Clark (Sidley Austin): (07:46) bye all
Leon Sanchez (Co-Chair, ALAC): (07:46) thanks everyone!
Rosemary Fei: (07:46) Thanks, All.