CCWG ACCT Meeting #80 (26 January @ 19:00 UTC)
Attendees:
Members: Alan Greenberg, Athina Fragkouli, Becky Burr, Bruce Tonkin, Cheryl Langdon-Orr, Fiona Asonga, Izumi Okutani, Jordan Carter, Jorge Villa, Julia Wolman, Julie Hammer, Leon Sanchez, Lyman Chapin, Mathieu Weill, Pär Brumark, Robin Gross, Roelof Meijer, Samantha Eisner, Sebastien Bachollet, Steve DelBianco, Suzanne Radell, Thomas Rickert, Tijani Ben Jemaa (23)
Participants: Aarti Bhavana, Allan MacGillivray, Andrew Harris, Andrew Sullivan, Avri Doria, Barrack Otieno, Brett Schaefer, Cherine Chalaby, Chris Disspain, Chris Wilson, David Maher, David McAuley, Edward Morris Farzaneh Badii, Finn Petersen, George Sadowski, Greg Shatan, Jeff Neuman, Jonathan Zuck, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Lito Ibarra, Malcolm Hutty, Mark Carvell, Markus Kummer, Martin Boyle, Matthew Shears, Megan Richards, Milton Mueller, Niels ten Oever, Oscar Robles, Pedro Ivo Silva, Phil Buckingham, Philip Corwin, Ram Mohan, Rinalia Abdul Rahim, Sabine Meyer, Stephen Deerhake, Steve Crocker, Suzanne Woolf, Tatiana Tropina, Tom Dale, Tracy Hackshaw, Vrikson Acosta (45)
Legal Counsel: Edward McNicholas, Holly Gregory, Michael Clark, Rosemary Fei, Steven Chiodini (5)
Observers and Guests: Chris Mulola, J. Curanarin, John Poole, Joseph Wright, Luca Urech, Navid Heyrani, Simon Jansson (7)
Staff: Bernie Turcotte, Berry Cobb, Brenda Brewer, Grace Abuhamad, Hillary Jett, Karen Mulberry, Marika Konings, Nigel Hickson, Tarek Kamel, Theresa Swinehart, Trang Nguyen, Yuko Green
Apologies: Olga Cavalli, Christopher Wilkinson,
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Recording
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p1cz2152bqi/
The audio recording is available here: http://audio.icann.org/accountability/ccwg-accountability-26jan16-en.mp3
Agenda
1. Welcome, roll call, SoI (5 min)
2. Update on Chartering Organizations’ input (20 min)
http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009866.html
3. Update on Board removal liability mitigation (20 min)
4. Rec 6 – Human Rights – Third reading (45 min)
http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009959.html &
http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009807.html
5. Rec 9 – AOC reviews - Second reading (15 min)
http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009796.html
Break (10 min)
6. Rec 5 – Mission Statement - Fourth reading (45 min) http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009941.html &
http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009917.html
7. Timeline & next steps (15 min)
http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160120/0e76810a/Timelineandnextsteps-0001.pdf
8. A.O.B (15 min)
Notes
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
1. Welcome, roll call, SoI (5 min) TR
Jordan Carter,Cheryl Langdon-Orr,Kavous Arasteh and Seun Ojedeji audio only.
Have returned to original agenda order.
2. Update on Chartering Organizations’ input (20 min) MW
MW:
gNSO and GAC have provided their input on the third draft proposal.
There are no formal objections in these comments.
There are qualified supports and conditions which are consistent with the minority views expressed in the third draft as well as the comments in the consultation.
Will not address recommendations that are generally agreed to.
Rec. 1 - No decision from the GAC yet - gNSO some objections regarding the balance of SO and ACs and a requirement for additional transparency.
Rec 2 ok
Rec 3 - gNSO clarify process to update articles of inc.
Rec 4 - gNSO fix escalation time frames and indemnification for removing a director
Rec. 5 - no interference with GAC being able to provide advice to ICANN Board + contract enforcement - Cont. Enf. required by gNSO.
Rec 6 - nothing from from GAC, gNSO some support for WS2.
Rec 7 , 8 ok
rec 9 gNSO – Limited support with some opposition and
potentially divergent qualifications - reviews in collaboration with SO ACs (GAC, gNSO), GAC responsible to the citizens of their countries.
Rec 10 - Limited support with some opposition
Rec 11 - no consensus or objection from the GAC. gNSO there is broad opposition as currently written.
Rec 12 - GAC requires clear time frame.
We should write to all CO's to thank them for their input and support and inform them of next steps.
AGreenberg - will be documenting the 5 specifics of the current ALAC positions and posting on list.
MW: No other updates - closes this item
3. Update on Board removal liability mitigation (20 min) TR
RoemaryFei - update from lawyers discussion - Board still strongly opposes waivers. CCWG lawyers will provide language to CCWG for consideration on this.
Idemnification - some support by Board would support for language in the rationale subject to limitations. JonesDay will draft this language.
AGreenberg - Idemnification of rationale only is too limited - what about the community forum. Who is being indemnified - individuals or councils?
RosemaryFei - Good point - tying it to the rationale would cover that language made by anyone. Other language is not covered.
Chris Disspain: Alan, perhaps you could say what you think it should cover?
Chris Disspain: content
AGreenberg - A real wide ranging discussion in the community forum will cover many topics beyond the rationale, as such this is overly limited.
Chris Disspain: so if it covered the community forum discussion and the rarionale?
Chris Disspain: would that be OK
Agreenberg - Probably if it covers councils.
GShattan - Sympathetic to AG, Need to limit it by subject matter. Rationale and items related to presenting it should be ok. Want to avoid the chilling effect.
AGreenberg - not just slander,
TR - What was presented as being offered by the Board seems insufficient. What is needed is compromise language that captures those eligible as well as subject as discussed in the comments. We would need such language from Jones Day by the end of the week (confirmed by SE). If the compromise language does not meet the requirements of the COs then we would need to proceed with what is required by the COs.
TR - this closes this topic.
4. Rec 6 – Human Rights – Third reading (45 min) MW
Short set of slides of the state of play https://icann-community.atlassian.net/wiki/spaces/acctcrosscomm/pages/97718829/CCWG+ACCT+Meeting+80+26+January+19+00+UTC
Trying to address all concerns the CCWG counsel has proposed language to attempt to avoid the unintended consequences.
We would like to test today if this proposed language would address the concerns and still be acceptable.
Comments?
TTropina - supports text as a middle solution.
MKummer - Board has had a thorough discussion on this. I can only repeat what I said last time. We are committed to have HR in ICANN but have not moved from the comments on third draft - wait for WS2 to complete the framework before inclusion in the Bylaws. Understand the concerns wrt it not advancing in WS2. Willing to include in the Bylaws a requirement in bylaws.to do work on HR.
Chris Disspain: the key words from what Markus said: Board proposes that including in the Bylaws a requirement for ICANN to address the human rights issue, as well as a requirement to consider – after a framework is concluded – how that should be referenced in the Bylaws. The Board therefore proposes the following: In the Bylaws text referencing WS2, language should be included that specifically identifies that a recommended framework on human rights within ICANN is expected to be part of the WS2 effort. Further, the Bylaws on WS2 should specify that If the cross-community group developing the framework also makes a consensus recommendation on whether and how that framework can be reflected in the ICANN Bylaws, the ICANN Board must consider that recommendation according to the process defined for considering those continuous improvement recommendations
MW - There has been significant work to try and address the Board issues - but unclear on what remains objectionable?
MKummer - the crux is the Board does not accept there be a ref. to HR before documenting what these are without incurring additional risk.
MW - Difficult to understand what Board concern has not been addressed with the proposed CCWG text.
NTenOever - this is not a compromise and ignores work of the community.
TTropina - current CCWG makes sense.
Agreenberg - should the CCWG go ahead there are some comments. Need examples from the Board as to what the possible risks are.
MW - This has been asked for and never provided. Language will be checked by lawyers for other points raised by AG.
KArastaeh - need to accept resolution as is or Board's new proposal.
CDispain – (repeated Board position)
LUrech (GAC - Switzerland) - supports maintaining this recommendation. We see no risk or unintended consequences. Not approving this would also send a very negative message in the overall community.
GShattan- Remarks from the Board actually confirm that the proposed text is truly a compromise. No one is happy with this - is a good sign that we have reached the compromise.
MW - The direction of discussion is clear. Much discomfort from the Board but that is it. The CCWG text seems to be the consensus position. If the Board comes up with a bylaw statement that convinces the community on its merit it could be included otherwise we should move with the current language.
HGregory - We have heard the Board concerns and addressed them. Have been trying to understand the concerns of the Board since then but are struggling as there have been no concrete examples.
MW - Action item is for staff and lawyers to move to finalizing recommendation consistent with proposal discussed and comments expressed during the session -(Alan). No further discussion planned unless, as suggested by Kavouss, the Board would come back with a concrete action or resolution that would convince the group to proceed otherwise.
MW - Item closed.
5. Rec 5 – Mission Statement - Fourth reading (45 min) MW
BBurr - presentation of updated Recommendation document:
ALAC request on WHERE FEASIBLE AND APPROPRIATE. Agreed to reinsert in core value 2 but not in 4. ALAC continues to argue for its re-introduction.
KArasteh - Need to answer if feasible and appropriate.
Agreenberg - Are simply requesting what was there stay there. The example in the RSTEP process - are there competitive issues with this change. We evaluate this. Without this clause we may not be able to ask the question. Need this to be a proper custodian of the namespace.
KAresteah - We cannot grandfather elements which we do not have.
BBurr - pointing to RSTEP process points to the FACT that ICANN cannot make any determination on competition - if there are concerns they are referred to the appropriate govts. This is not an issue. However, any language in the Bylaws the authority does not rely on market is an issue.
AGreenberg - Agrees with the words of BB - but this is not what is written.
GShattan - language promotes a laisser-faire approach - let the market do its thing. This is one way to look at this. We are confusing a competitive environment and an anti-trust environment.
SBacholet - alternate options in line with AG
BBurr - ICANN does not have the authority or tools/skillset.
10 minute break
SDelBianco - does this say the market can be depended on to manage this or does it give ICANN the right to interfere into fixing it.
GShattan - does not give ICANN carte blanche- the market gets first crack, if the market fails then ICANN could interfere.
Conclusion - TR - since there is an objection from a chartering org. on this - let us try to get closer to a compromise on the list which we will consider the next time we consider this point.
ASO Language
BBurr - issues about referencing the MOU. Izumi has proposed alternate language today. There are essentially two different constructions
IOkutani - explanation of proposed text
Bruce Tonkin: Changes make sense Izumi. I have sent to the Board list.
Chris Disspain: Board needs to look at this wording and comment asap
Conclusion - TR - given there are no objections let us assume that IO proposed language is the new reference text.
Grandfathering
BBurr - Grandfathering language - Issue - can contracts with PICS in them be renewed without change - can new contracts contain PICs going forward. Are there any objections to making Pics renewable and new agreements can include these.
Agreenberg - supports continuing PICs and including in the not yet signed.
GShattan - object but not on the basis that they should be renewed - it is unclear they would go away. We are confusing the issue. Grandfathering is cheating,
CDispain - Board has concerns about grandfathering. Also want to make certain we retain the power to contract and enforce which includes current PICs.
Becky Burr: Chris that is already in the language. Grandfathering language says FOR THE AVOIDANCE OF DOUBT to drafters. This should apply to all TLDs from this current round.
MHutty - We are not changing ICANN's mission, simply clarifying it. Some of the concerns are that it signed some PICs which are not within in mission and so could be challenged with the new version. Grandfathering would fix this to avoid disruption of the environment.
Conclusion - TR - we are close to a compromise - we will ask BB to update the document taking into account the discussions today and refine this on the list so this can be finalized on the next call
Greg Shatan: How about this; "To the extent that PICs may be out of scope, those PICs are grandfathered in.
MHutty - want to preserve the APPROVAL queue.
Contract Enforcement
BBurr - Contract enforcement - There is general agreement that ICANN has the power to enter into contracts and enforce these in the service of its mission. The ICANN Board objects to the Regulator language - and the Board proposed that this language moved to the drafting notes to be taken into account/Guidance to drafters of the final Bylaws.
MHutty - Guidance to do what in the Board proposal?
GShattan - What is the weight between our draft Bylaws language and the Notes to drafting. If they are = then there is no isssue with the Board recommendation. If there is a difference, then there is an issue. We should clarify if there is a difference.
TR - our recommendations are clear instructions to drafters. Additionally, we have an implementation oversight team to ensure we are meeting the objectives. We may work more on what we are trying to express here but this may also be done in instructions to drafters.
TR - this closes this agenda item.
6. Rec 9 – AOC reviews - Second reading (15 min) SDB
SDB - Two questions from our lawyers - Re requirement to better define diversity. Recommend no change to current. Next question same. recommendation on participation.
RAbdulRahim - Board supports incorporating AOC in Bylaws. Discussion of operational standards vs inclusion in Bylaws. (see email by BTonkin for details):
Board Comment - Recommendation 9:
As noted in its comments on the third draft proposal, the Board supports the incorporation of the AOC reviews into the Bylaws, while noting the importance of maintaining operational standards for reviews outside of the Bylaws. While the Board agrees that operational standards should be in alignment with the provisions of the Bylaws, the Board views operational standards as a more suitable place to address multiple review-related operational items that do not belong in the Bylaws.
There are a few specific areas that the Board is flagging in relation to the operational standards -
a) The Board is concerned about potential constrains that may limit flexibility and effectiveness in the operational standards and that certain CCWG-Accountability recommendations may not be aligned with best practices or industry standards, including:
Fixed numbers of total review team members, as well as a fixed allocation among SO/ACs, without consideration of specific issues and required expertise for a given review.
Unlimited number of participants, in addition to the appointed review team members, potentially affecting the team's productivity.
Exact trigger points for the commencement of reviews without taking into account the Community bandwidth, or the state of pending implementation activities.
b) To accommodate differing needs of reviews, the Board recommends leaving the number of review team members to the selectors of a specific review team, as to prescribing a specific formula for composition. This could leave to the selectors the flexibility, for example, to include more members from a specific SO or AC that is more impacted by a specific review, without hardcoding numbers into the Bylaws that might need to be changed later.
c) The Board is concerned with the CCWG-Accountability's recommendations on determinations of how consensus is applied. Imposing Bylaws requirements on allowing participants and observers, or requiring consensus calls are other examples where trying to hardcode specific requirements for reviews now might actually develop reviews that are less efficient, more resource intensive, and detract from the responsibilities of the review teams.
The Board notes that the ICANN community would benefit from a review schedule that would take into consideration community bandwidth and ICANN resources in developing a staggered or phased review schedule. These factors should determine what a workable number of concurrent reviews would be and ensure that no more than that number of reviews are scheduled at the same time.
Finally, the Board would like to highlight the work that has been underway within ICANN towards improving review effectiveness so that the CCWG and the community may factor this work in the development of operational standards. Work has been underway on the development of Operational Standards since last year, originating from ATRT2 recommendation 11 to improve effectiveness of Reviews together with Board Resolution 2015.07.28.14. In July 2015, after factoring public comments, the Board endorsed the proposed process and operational improvements designed to simplify and increase the effectiveness of Reviews. The Organizational Effectiveness Board Committee is currently working to finalize Policies, Procedures and Guidelines for the Organizational Reviews mandated by the Bylaws.
Conclusion - TR - RAR the CCWG will consider this Board input and we will reply to it. (SDB) there is no objection to your suggestions, please include in the next draft.TR - this closes this item.
7. Timeline & next steps (15 min) MW
Pilot test for reviewing recommendation by recommendation seems to working well. Can we get confirmation that we can keep using this process?
Conclusion - MW - we will continue with this process. This concludes this item.
8. A.O.B (15 min) MW
None
Meeting Adjourned.
Action Items
Documents
Adobe Chat
Brenda Brewer: (1/26/2016 12:05) Hello and welcome to CCWG Accountability Meeting #80 on Tuesday, 26 January 2016 @ 19:00 UTC! 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
Kavouss Arasteh: (12:33) HI BRENDA
Brenda Brewer: (12:33) Hi Kavouss and all!
Niels ten Oever: (12:34) Hi all
Tatiana Tropina: (12:46) hello everyone
Niels ten Oever: (12:51) I see that the agenda on the screen is different from the agenda in the email, could we perhaps put human rights up a discussion point?
Luca Urech (GAC - Switzerland): (12:52) Hi everyone!
Luca Urech (GAC - Switzerland): (12:53) I would also appreciate moving Rec 6 up again as on the original agenda.
Holly J. Gregory (Sidley): (12:54) Good day everyone!
Martin Boyle, Nominet: (12:54) Hi all
Aarti Bhavana: (12:55) Hi All!
Sabine Meyer: (12:55) Hello everyone!
Aarti Bhavana: (12:55) +1 Niels
Robin Gross [GNSO - NCSG]: (12:56) Hello everyone, everywhere!
Tatiana Tropina: (12:56) +1 Niels
Bernard Turcotte Staff Support: (12:56) Hi all
Bernard Turcotte Staff Support: (12:56) The Zuck man is here
Thomas Rickert, CCWG Co-Chair: (12:57) Hi all, Leon cannot join at the beginning so we hope he can join in time for the HR discussions later. This is why we suggested the change of order in the agenda.
Pär Brumark (GAC Niue): (12:57) Hi all!
Niels ten Oever: (12:58) That's unfortunate to hear, because I planned my time according to the agenda.
Tatiana Tropina: (12:58) +1 to Niels, I have to urgently rearrange my schedule now :(
Luca Urech (GAC - Switzerland): (12:59) Same here...
Thomas Rickert, CCWG Co-Chair: (12:59) Wait until you do so, Tatiana
Mathieu Weill, ccNSO, co-chair: (13:00) Hello all
kAVOUSS aRASTEH: (13:00) pls cALL ME
Suzanne Radell (GAC): (13:00) Hello everyone
Milton: (13:01) Cheers, all
Athina Fragkouli (ASO): (13:01) hello all!
FIONA ASONGA (ASO): (13:01) Hallo All
nigel hickson: (13:01) good evening
Niels ten Oever: (13:03) Thanks Thomas
Milton: (13:03) oh too bad, I liked the new agenda
Tatiana Tropina: (13:04) sorry I disliked it :)
Becky Burr: (13:04) Hello all
Cheryl Langdon-Orr: (13:04) hi all
Matthew Shears: (13:04) hello
Avri Doria: (13:04) i did not really care
Steve DelBianco [GNSO - CSG]: (13:06) GNSO gave a summary of comments we are already reviewing. As te GNSO letter put it, 'The GNSO Council’s Response was based on a review and analysis of all of the GNSO SG/Cs’ feedback provided during the public comment period on the Third Draft Report. ‘
Avri Doria: (13:07) does that mean that the GNSO is just an aggregation and this it really isn't a GNSO position?
Becky Burr: (13:07) I continue to take exception to the notion that the GAC has not taken a position on participating as a decision maker. To the extent the GAC is fully participating in the decision to escalate or not escalate, that is a decision making role.
Robin Gross [GNSO - NCSG]: (13:07) If GAC can't agree that it wants these powers, we should not insist on giving GAC these powers (Rec. 1 and 11).
Becky Burr: (13:08) I am fine with that, but i don't think we should obscure what is actually going on
Becky Burr: (13:08) fine with the decision making role
Robin Gross [GNSO - NCSG]: (13:09) GAC can't agree that is fine with having a decision making role. That is signficant.
Steve DelBianco [GNSO - CSG]: (13:09) @Avri -- yes. But we should expect GNSO to vote on a resolution regarding our Final Supplemental proposal
Becky Burr: (13:09) agree Robin, but my point is about accurate description, not (in this thread) the substance
Becky Burr: (13:11) Agenda on screen now is different from agenda in discussion notes
Robin Gross [GNSO - NCSG]: (13:11) Becky, yes, I was just trying to slip some substance into the discussion on this issue. :-)
Becky Burr: (13:11) ;)
Brenda Brewer: (13:13) Kavouss Arasteh has joined audio bridge only at this time.
Izumi Okutani (ASO): (13:13) Thank you Mathieu for this helpful summary and to GAC and GNSO for sharing their position!
Edward Morris: (13:15) There will be a GNSO vote on the final supplemental proposal. The comment provided should alert the CCWG that the GNSO has serious concerns with 1, 6, 10 and 11 and unless there is change in the supplemental proposal any one, or all, of these may not receive final support.
Edward Morris: (13:16) ( per the GNSO Council simple majority voting procedure)
Chris Disspain: (13:20) Alan, perhaps you could say what you think it should cover?
Chris Disspain: (13:21) content
Chris Disspain: (13:21) so if it covered the community forum discussion and the rarionale?
Chris Disspain: (13:22) would that be OK
Chris Disspain: (13:22) OK...we can take that back and consider
Robin Gross [GNSO - NCSG]: (13:22) I think it is a fair concern from the board that too broad of an indemnification is carte blanche to slander.
Chris Disspain: (13:23) shh Greg...you promised your lips were sealed
Alan Greenberg: (13:23) So squirrels are bad. But hampsters ok - correct?
Chris Disspain: (13:24) maybe for you Alan...
Alan Greenberg: (13:24) OOPS - hAMSTERS - NO p
cherine chalaby: (13:24) content: as long as it is in good faith and after due diligence into the veracity of the claim
Rosemary Fei (Adler & Colvin): (13:24) Eww.
Chris Disspain: (13:25) hand down
Greg Shatan: (13:25) Gerbils are the worst, apparently.
Chris Disspain: (13:25) worried about slander
Chris Disspain: (13:25) :-)
Alan Greenberg: (13:26) But presumably Chervil is ok.
Chris Disspain: (13:26) absolutely Alan
Milton: (13:26) Duvel is better than Gerbils or Chervils
Mathieu Weill, ccNSO, co-chair: (13:26) Please mute your mike is not speaking
Philip Corwin: (13:27) Need bolierplate--no indeminification for any acts with rodents ;-)
Milton: (13:27) but broad exemption for beers
Mathieu Weill, ccNSO, co-chair: (13:27) Empowered rodents ?
Holly J. Gregory (Sidley): (13:27) Alan, the point you make about damage to employment would be grounded in the claim of slander or defamation. I am not aware of a separate claim that would apply.
Greg Shatan: (13:27) Slander has to be false, factual and damaging to reputation. Opinions are protected (unless they imply false and defamatory facts). One woudl hope that our rationales would not go into such territory.
Samantha Eisner: (13:27) Thomas, we can meet that deadline
Holly J. Gregory (Sidley): (13:28) Agreed Greg.
Jonathan Zuck: (13:28) +1 Greg. Especially with the critical mass required to go forward. If someone individual or group engaged in actual slander, they SHOULD be suable.
Alan Greenberg: (13:29) @Holly, I think that IANAL covers my comment. I did get my merit badge in contracts at one point, and I am fond of a few Latin terms used in contracts, but that is as far as I go.
Holly J. Gregory (Sidley): (13:30) Don't know what IANAL refers to
Rosemary Fei (Adler & Colvin): (13:30) I am not a lawyer . . .
Alan Greenberg: (13:30) I am not a Lawyer
Greg Shatan: (13:31) Rosemary, I'm shocked!
Holly J. Gregory (Sidley): (13:31) I am very dense today. Got it. I was just trying to reassure you Alan that the harm you raised concern about would be addressed in a damage claim based on slander or defamation.
Rosemary Fei (Adler & Colvin): (13:31) I think I just defamed myself.
Alan Greenberg: (13:32) @Holly, understood. My quirky sense of humor is getting the best of me today.
Holly J. Gregory (Sidley): (13:32) Indeed Rosemary -- now someone might quote you!
Greg Shatan: (13:32) It was false, stated as a fact and damaged your reputation. Seems right to me.
Jordan Carter (.nz, WP1 rapporteur): (13:32) now on adobe, hi all
Chris Disspain: (13:32) I recommedn you indemnify yourself Roaemary
Greg Shatan: (13:33) Too late, Rosemary will have to enjoin herself.
Chris Disspain: (13:33) or waive at yourself...:-)
Holly J. Gregory (Sidley): (13:33) +2 Chris
Jordan Carter (.nz, WP1 rapporteur): (13:35) having just started watching Suits, I am smiling
Rosemary Fei (Adler & Colvin): (13:35) Legal advice AND comic relief. That's full service.
Keith Drazek: (13:35) Agree we need to work to conclude. There is clearly more work required in WS2.
Avri Doria: (13:36) while it pains me, i can accept this compromise.
Matthew Shears: (13:36) This seems a reasonable way forward on HR
Bernard Turcotte Staff Support: (13:36) no sound?
Robin Gross [GNSO - NCSG]: (13:37) Agree, Matt.
Tatiana Tropina: (13:37) I am also not fully happy with such a diversion but I think we have to compromise: there is no way to make everyone happy
David McAuley (RySG): (13:37) I think this language is good and I support it
Grace Abuhamad: (13:37) I unmuted Markus from the admin side.
Bruce Tonkin: (13:38) Hello All - confirming I have been on the call since the beginning - but now also in Adobe.
Mathieu Weill, ccNSO, co-chair: (13:39) Option b is WS2
KVOUSS aRASTEH: (13:40) I AM NOW CONNECTED TO ADOBE
Avri Doria: (13:41) oh, well forget what i wrote about accepting the chair's compromise.
Athina Fragkouli (ASO): (13:41) I am also fine with thed text. this is indeed a reasonable compromise
Avri Doria: (13:41) but if the Board is not accepting it, then it is not a compromise yet.
Jordan Carter (.nz, WP1 rapporteur): (13:41) I don't understand what Markus is proposing
Niels ten Oever: (13:42) Markus, coud you also provide an argument for this position?
Tatiana Tropina: (13:42) This is not acceptbale.
Niels ten Oever: (13:42) All concerns by the board have been adressed.
Niels ten Oever: (13:42) Point by point.
Tatiana Tropina: (13:42) I think we addressed all the concerns of the board
Tatiana Tropina: (13:42) this is just purely "we don't want this"
Tatiana Tropina: (13:43) I would love to hear the argumented position.
Niels ten Oever: (13:43) In other words: The board is committed to human rights but doesn't want a commitment to human rights
Athina Fragkouli (ASO): (13:43) I also thought that Markus agreed with the suggested text.. I must have misunderstood
Niels ten Oever: (13:43) Markus did personally agree in WP4 on the text
Tatiana Tropina: (13:44) How a framework can be developed without the bylaw? what is going to be interpreted?
Niels ten Oever: (13:44) This is not in line with the lawyers advice from Jones Day or Sidley lawyers.
Milton: (13:44) +1 Tatiana
Milton: (13:45) What happens in WS 2 if there is no commitment to HR?
Tatiana Tropina: (13:45) I think that what is being proposed now is putting the card before the horse. If there is no bylaw there is basically nothing to interpret.
Matthew Shears: (13:45) we have come a long way on this matter - the support has been there for inclusion - the text in the adobe is a reasonable and measured way forward
Niels ten Oever: (13:45) +1 matt and very much a accommodation to the board position
Tatiana Tropina: (13:45) @Milton, there shall be framework of interpretation before the bylaw, I just don't understand how one can interpret something that is not agreed upon
Jordan Carter (.nz, WP1 rapporteur): (13:45) but the latter route assures it will kick in, whereas the former doens't
Chris Disspain: (13:46) the key words from what Markus said: Board proposes that including in the Bylaws a requirement for ICANN to address the human rights issue, as well as a requirement to consider – after a framework is concluded – how that should be referenced in the Bylaws. The Board therefore proposes the following: In the Bylaws text referencing WS2, language should be included that specifically identifies that a recommended framework on human rights within ICANN is expected to be part of the WS2 effort. Further, the Bylaws on WS2 should specify that If the cross-community group developing the framework also makes a consensus recommendation on whether and how that framework can be reflected in the ICANN Bylaws, the ICANN Board must consider that recommendation according to the process defined for considering those continuous improvement recommendations
Jordan Carter (.nz, WP1 rapporteur): (13:46) In a material sense, there is no difference, except for the symbolism involved here and the degree of commitment.
Robin Gross [GNSO - NCSG]: (13:46) It seems like the board is going backwards on this issue.
Brett Schaefer: (13:46) A perhaps naive question, but other than freedom of expression and freedom of association, which human rights is ICANN likely to infringe if it sticks to a narrow scope and mission?
Niels ten Oever: (13:46) +1 Robin
Avri Doria: (13:46) what has not been addressed is that they do not wnat a bylaw that mentions Human rights in any way shape or manner.
KVOUSS aRASTEH: (13:47) Mthieu
Luca Urech (GAC - Switzerland): (13:47) The message would be quite negative to not include any HR reference in the bylaws after the overwhelming support this important theme has enjoyed throughout this whole process.
Mark Carvell GAC - UK Govt: (13:47) I don't understand the problem with having a bylaw that affirms commitment to respect for human recognized rights. interpretation before bylaw is cart before horse.
Robin Gross [GNSO - NCSG]: (13:47) Brett, I would add "due process of law" and privacy. But there are not many others that would apply.
KVOUSS aRASTEH: (13:47) I AM IN THE QUEUE FOR LONG TIME
Chris Disspain: (13:47) there is a significant differecne Jordan..
Grace Abuhamad: (13:47) @Kavouss, everyone is in the queue in the order they raised their hand. Please wait for your turn.
Pedro Ivo Silva [GAC Brasil]: (13:48) Agree with Mark
Bruce Tonkin: (13:48) The Board has suggested including text on the bylaws that affirms that the work on human rights will be conducted.
Bruce Tonkin: (13:48) So there is a commitment to do the work.
Becky Burr: (13:49) I'm a little confused. I thought the Board proposal was to include a Bylaw that says there should be a Bylaw on Human Rights once the Framework of Interpretation work is done
Mark Carvell GAC - UK Govt: (13:49) Very disappointing Board response.
Tatiana Tropina: (13:49) This is not what will make a commitment to respect human right
Jordan Carter (.nz, WP1 rapporteur): (13:49) Chris, re your chat: all the concerns the Board has raised about including something like what is on the screen have been addressed, and since the material difference is indistinguishable, why do you and your colleagues continue with this?
KVOUSS aRASTEH: (13:49) I HAVE A SOLUTION FOR THE CASE
Avri Doria: (13:49) agree with Niels, this looks like an impasse.
Brett Schaefer: (13:49) Is it too late to propose a HR bylaw that sticks to those four defined issues? It seems the expansive nature of HR is part of the Board's problem. But maybe I am misunderstanding their objections.
KVOUSS aRASTEH: (13:50) Mathieu
KVOUSS aRASTEH: (13:50) I have a legal solution for the matter
Mathieu Weill, ccNSO, co-chair: (13:50) I will turn to you after Alan, Kavouss
Robin Gross [GNSO - NCSG]: (13:51) Brett, We should explore finding the possible compromise language along those lines.
Greg Shatan: (13:51) Brett, I think that would be a step in the wrong direction. We have discussed and discarded teh concept of "cherrypicking" human rights.
Sabine Meyer: (13:51) +1 Greg
Tatiana Tropina: (13:51) we can't cherry oick
Niels ten Oever: (13:51) +1 Greg
Jordan Carter (.nz, WP1 rapporteur): (13:51) that concept is already embedded anyway, "within its missiona dn opeations" - you don't pick off favourite human rights as well
Brett Schaefer: (13:52) Yes, I remember the discussion Greg. But there seems to be equal disappointment with the current direction of this discussion.
Edward Morris: (13:52) +1 Brett and Robin. Totally agree with that approach. Would prefer it to our current proposal.
Niels ten Oever: (13:52) We have had lawyer analysis about this.
Bruce Tonkin: (13:52) That sounds right @Becky
Tatiana Tropina: (13:52) I think the risks issues have been adressed
Malcolm Hutty: (13:52) Replace "does not create" with "shall not create" to make that clause effective
Tatiana Tropina: (13:52) with dormant bylaw there is just no risk because there is no operational bylaw
Becky Burr: (13:52) I understand the community response, but it seems polarizing. If the actual impact is not actually different (e.g., you don't have an effective Bylaw until the FOI work is done in either case) I would be interested in understanding at least why the Board thinks their approach is preferable
Bruce Tonkin: (13:52) It seemed odd to us to have a bylaw that was not operative.
Jordan Carter (.nz, WP1 rapporteur): (13:53) it's pretty common.
Holly J. Gregory (Sidley): (13:53) Instead of "in particular, this ..." use "This Bylaw provisions does not ..."
Tatiana Tropina: (13:53) Bruce, isn't it odd to develop the framework of interpretation for something that doesn't exist?
Holly J. Gregory (Sidley): (13:53) singular "provision"
Thomas Rickert, CCWG Co-Chair 2: (13:53) If it is just odd, then you should be able to live with it, Bruce!
Mark Carvell GAC - UK Govt: (13:53) Agree helpful too have more explanation of risks that Board envisages.
Stephen Deerhake (.as): (13:53) Perhaps the Board's bluff should be called?
Jordan Carter (.nz, WP1 rapporteur): (13:53) Becky : hmm, that could work
Niels ten Oever: (13:54) +1 Mark
Tatiana Tropina: (13:54) I think the "odd" is not a good argument, We have to talk about risks if there are any. "we dislike it" is not a real argument
Tatiana Tropina: (13:55) Board highlighted the risks. We addressed them. We made a step forward and try our best to work on the compromise solution. "My way or highway" is nto really a way forward
Alan Greenberg: (13:57) @Bruce, Article XX (Transition Article) of the current Bylaws has several provisions that are not operable until something happens.
Thomas Rickert, CCWG Co-Chair 2: (13:57) The Board's position has not changed - that is the issue in our attempt to find compromise, Chris
Tatiana Tropina: (13:58) +1 to Thomas
Jordan Carter (.nz, WP1 rapporteur): (13:58) it's not consistent because embedding a commitment was thought to be important for WS1.
Jordan Carter (.nz, WP1 rapporteur): (13:59) as opposed to embedding a commitment to do something about it
Niels ten Oever: (13:59) This risk was not formulated by Jones Day, nor in the comments
Megan Richards, European Commission: (13:59) Right Thomas. movement seems to be one sided only
Avri Doria: (13:59) it may also result in never getting to human rights at all.
Holly J. Gregory (Sidley): (14:00) The language expressesly provided that there will be no IRP or enforcement effort since this will not enter into enforce until ....
Jordan Carter (.nz, WP1 rapporteur): (14:00) Chris: that's precisely what the language is designed to do - to ensure there IS going to be a bylaw with a general human rights commitment.
Avri Doria: (14:00) dormant bylaw was a compromise. I still prefer an active bylaw.
Alan Greenberg: (14:00) For instance, the ccNSO could name Directors, Once it is formally constituted.
Tatiana Tropina: (14:00) +1 to Holly, there are no risks at all from this point of view
Holly J. Gregory (Sidley): (14:00) NO IRP or enforcement effort until the Bylaw comes into force. We have addressed this concern.
Tatiana Tropina: (14:00) :(
Tatiana Tropina: (14:01) ok I am going to type on the chat
Mathieu Weill, ccNSO, co-chair: (14:01) Apologies Tatiana
Matthew Shears: (14:01) + 1 Holly - these concerns have been addressed
Avri Doria: (14:01) we need a bylaw becasue we are losing the NTIA backstop for freedom of expression and an open Internet. the promise of a bylaw was a compromise.
Tatiana Tropina: (14:02) Firstly, 1) the community has agreed that there shall be a bylaw. Secondly, 2) what the board is saying we have to go back to the square one and consider again if we need a bylaw? I do not understand the sense of this excersice
Megan Richards, European Commission: (14:02) holly has clarified important factor
Kavouss Arasteh: (14:02) Board position need to be formally contained ?put in the chat
Andrew Sullivan: (14:03) I confess that I find the argument, "This proposed bylaw doesn't have any effect anyway," to be a fairly weak reason to adopt the bylaw
Andrew Sullivan: (14:03) (But I don't have an opinion on what to do here.)
Jordan Carter (.nz, WP1 rapporteur): (14:03) but it makes the commitment, is the point, right?
Avri Doria: (14:03) Andrew, it also goes beyond that indicating the action that MUST be taken to wake the bylaw up.
Edward Morris: (14:04) @ Avri. The initial language proposed was something like "free expression and free flow of information", That mirrors your, IMHO correct, interpretation of the NTIA requirements. Free flow of information is not an internationally acknowledged human right. Does the general h.r. language in yiur opinion meet the NTIA requirement?
Alan Greenberg: (14:04) NOTE: Language on screen should say that "until the Board adopts the FoI:, not triggered by the developed but not yet adopted.
Tatiana Tropina: (14:04) We need a bylaw for interpretation, the bylaw on respecting HR was discussed for many hours and agreed at WP4 and CCWG
Kavouss Arasteh: (14:04) Why not having the ICANN Commitment be sent to us in a Resolution and then we will see whether we could endorse it to be annexed to the trasitional Bylaws
Holly J. Gregory (Sidley): (14:06) i hung up rather than unmuted calling in now
Avri Doria: (14:06) Ed, it does not meet it but promises to meet it. And those rightss are included in Human rights even if not explicitly in the UDHR itself
Edward Morris: (14:06) @Avri. Thanks for clarifying.
Luca Urech (GAC - Switzerland): (14:06) Agree with Avri - and that is well reflected in the term "internationally recognized HR", which goes beyond a single instrument like the UDHR.
Avri Doria: (14:06) i suggest we go with what is on the screen and deal with the Board refusal in the negotiation phase.
Holly J. Gregory (Sidley): (14:07) im back
Tatiana Tropina: (14:07) No. This shall be a bylaw.
Avri Doria: (14:07) except for bylaws, the Board can unmake and decsion it makes and we have nothing to say about it.
Kavouss Arasteh: (14:07) Mathieu
Avri Doria: (14:08) ... can unmake any decsion it makes ...
Kavouss Arasteh: (14:08) The Resolution from ICANN is a legal solution
Kavouss Arasteh: (14:08) Why not taking it
Greg Shatan: (14:08) The NTIA language alluded to earlier is as follows, FYI: Fourth, the transition proposal must maintain the openness of the Internet. The neutral and judgment-free administration of the technical DNS and IANA functions has created an environment in which the technical architecture has not been used to interfere with the exercise of free expression or the free flow of information. Any transition of the NTIA role must maintain this neutral and judgment free administration, thereby maintaining the global interoperability of the Internet.
Mathieu Weill, ccNSO, co-chair: (14:08) Kavouss, I'm leaving this open... if the commitment convinces the group
Greg Shatan: (14:09) Holly, worth waiting for!
Tatiana Tropina: (14:09) Very much appreciated, Holly, thanks
Matthew Shears: (14:09) + 1 Holly
Megan Richards, European Commission: (14:09) thx holly !
Alan Greenberg: (14:09) Greg, Neutral and judgement free IANA is already addressed in the proposed changes.
Kavouss Araste: (14:10) Mathieu
Jordan Carter (.nz, WP1 rapporteur): (14:10) thanks Mathieu
Phil Buckingham: (14:10) Thank you , Holly
Jordan Carter (.nz, WP1 rapporteur): (14:10) and thanks Holly.
Kavouss Araste: (14:10) Pls ask the Board for the Resolution
Mathieu Weill, ccNSO, co-chair: (14:11) I will make clear that is part of our conclusion. Traction on this was limited though
Mathieu Weill, ccNSO, co-chair: (14:11) Apologies Sam was not possible to get back to debate after tha
Mathieu Weill, ccNSO, co-chair: (14:11) that
Samantha Eisner: (14:11) On the human rights issue, while the langauge provided addresses issues of the timing of when the language could come into effect, there has not been consideration of the concerns raised on the actual language in the opening part of the Bylaws.
Mathieu Weill, ccNSO, co-chair: (14:12) I am so sorry that this only raised now Sam.
Mathieu Weill, ccNSO, co-chair: (14:12) We have had three full and long sessions + emails
Suzanne Woolf: (14:13) Re: RSSAC and root server system language, there's some discussion ongoing within RSSAC and proposed with the Board-- nothing to add at this time except we expect closure soon
Samantha Eisner: (14:13) These issues were flagged in teh Board's comments and in the remarks circulated last week.
Jordan Carter (.nz, WP1 rapporteur): (14:14) Sam, I guess from my reading of the comments, the concern is raised but never evidenced, so it doesn't convince.
David McAuley (RySG): (14:14) is anyone else having audio issue
Grace Abuhamad: (14:14) Audio is clear on my end @David
Mathieu Weill, ccNSO, co-chair: (14:15) Sam, let(s move this to the list if you could expand on these concerns. I am vonfident our lawyers will certainly be able to respond.
David McAuley (RySG): (14:16) Thanks Grace - getting interruptions, will call in
Mathieu Weill, ccNSO, co-chair: (14:16) Please do launch a thread
Steve DelBianco [GNSO - CSG]: (14:18) "thereafter" -- does that mean a work stream 2 refinement? Or does that mean refinement/interpretation over time, via successive IRPs?
Bruce Tonkin: (14:20) I have just sent the current Board position on human rights to the CCWG mailing list.
Bruce Tonkin: (14:20) WE have quite a few Board memebrs on this call - so we will take back the feedback we have received to the next Board call.
Rosemary Fei (Adler & Colvin): (14:20) I just sent the narrowed wavier language to the CCWG mailing list
Bruce Tonkin: (14:21) I have also sent some Board comments on the operational aspects of the AoC reviews to the CCWG mailing list.
Bruce Tonkin: (14:21) In general the Baord is against setting hard values on some items such as the number of members of a review team - and suggests more felxibilitydepending on the topic of the review. Some reviews such as say the security and stability reviews - have managed to be quite efficent without a large group.
Grace Abuhamad: (14:22) Rosemary’s email on waiver language: http://mm.icann.org/pipermail/accountability-cross-community/2016-January/010012.htmlBruce’s email on Rec6: http://mm.icann.org/pipermail/accountability-cross-community/2016-January/010013.html Bruce’s email on Rec9: http://mm.icann.org/pipermail/accountability-cross-community/2016-January/010014.html
Becky Burr: (14:23) that's a good question - and the answer is it is likely to be the ICANN Board. Which is why that is problematic in the competition context
Andrew Sullivan: (14:23) +1 Alan
Bruce Tonkin: (14:23) THankws @Rosemary - I have also forwarded to the Baord mailing list.
Andrew Sullivan: (14:24) (about not reviewing everything already existing)
Becky Burr: (14:24) But ICANN Board does not have expertise to determine when it is or is not appropriate to rely on market mechanisms
Becky Burr: (14:25) sorry just cut off dialing back in
Phil Buckingham: (14:26) Alan - "material " changes right . Exactly , Becky .
Becky Burr: (14:26) back now
Keith Drazek: (14:28) Becky is correct. ICANN is not a competition authority.
Steve DelBianco [GNSO - CSG]: (14:29) ICANN's mission includes promoting competition, but that is not the same as being a competition authority or regulator
Keith Drazek: (14:29) Correct Steve
Matthew Shears: (14:29) a very specific and narrow sense of competition as well
Jonathan Zuck: (14:30) +1 Steve. We have competition regulators in place.
Becky Burr: (14:30) absolutely correct Steve
Steve DelBianco [GNSO - CSG]: (14:30) Current Bylaws, Core Value #6 is '6. Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest.'
Kavouss Araste: (14:31) There is no problem to grandfather certain agreements already existed. There is no need to talk about the period during which the grandfathered agreement will continue to exiszt since it will do so until the waiver is intrioduced. I am not comfortable to grandfather a future agreement the content of which is not yet known or the exact text of the agreement is not known
Becky Burr: (14:31) i did not - i said that ICANN can refer if it has a question
Becky Burr: (14:31) IF WE DON'T KNOW
Becky Burr: (14:31) also not what the bylaw says Alan.
Becky Burr: (14:32) depending on market mechanisms and sovereign regulators?
Becky Burr: (14:33) BUT SEE CV 5 where ICANN has an affirmative value of introducing and promoting competition
Kavouss Araste: (14:34) Thomas
Kavouss Araste: (14:34) When we will have our 15 mints break
Mathieu Weill, ccNSO, co-chair: (14:34) Shortly Kavouss. promise
Kavouss Araste: (14:34) Pls advise when we will have 15 mints of break
Becky Burr: (14:35) "appropriate" is always in the eye of the beholder
Matthew Shears: (14:35) there already are the words "where practicable and beneficial"
Becky Burr: (14:36) and what other way is ICANN equipped to use??
Kavouss Araste: (14:36) We need to have some degree of latitude being injected.
Becky Burr: (14:36) that's the problem
Kavouss Araste: (14:36) I have seen many area that such a qualifier was introduced
Alan Greenberg: (14:36) If we do not have ANY discretion to consider, then why are we chartering a AoC Review Team to look at it.
Greg Shatan: (14:37) I think painting any action by ICANN as "regulation" is a significant overstatement.
Izumi Okutani (ASO): (14:37) To the co chairs - are we done with discussions on any issues on the mission or just this part on consumer trust?
Mathieu Weill, ccNSO, co-chair: (14:38) We will resume Mission after the break