[Internal-cg] Questions from webinars

Kavouss Arasteh kavouss.arasteh at gmail.com
Wed Aug 12 06:15:42 UTC 2015


Dear Joe
In CCWG this issue was extensively debated and thereasults contained in
Section 11.3 of the Second Proposal
Regards
Kavouss
See below

11. Items for Consideration in Work Stream 2

The CCWG-Accountability Charter states that:

In the discussions around the accountability process, the
CCWG-Accountability will proceed with two Work Streams:

   - *Work Stream 1:* focused on mechanisms enhancing ICANN accountability
   that must be in place or committed to within the time frame of the IANA
   Stewardship Transition;
   - *Work Stream 2:* focused on addressing accountability topics for which
   a timeline for developing solutions and full implementation may extend
   beyond the IANA Stewardship Transition.

While Work Stream 2 is not necessary to be implemented or committed to
before the transition takes place, the Charter insists that they should
remain firmly within the scope of the CCWG-Accountability. The items listed
below should therefore be considered as no less important than the Work
Stream 1 items.

*11.1  Commitment to Work Stream 2*

Concerns were raised within the CCWG-Accountability about the incentives
for ICANN to implement Work Stream 2 proposals when they are finalized
after the IANA Stewardship Transition has taken place. The
CCWG-Accountability recommends an interim Bylaw provision to ensure ICANN’s
commitment, noting that such provisions have been successfully used in the
past.[1] <https://mail.google.com/mail/u/0/?tab=wm#_ftn1>

*Recommendation:* The CCWG-Accountability recommends that the Board adopt a
transitional provision in its Bylaws which would commit ICANN to implement
the CCWG-Accountability recommendations, and task the group with creating
further enhancements to ICANN's accountability including, but not limited
to the following list of issues (see below). This transitional provision
must be incorporated in the Bylaws as part of Work Stream 1, prior to the
IANA Stewardship Transition.

The language of this transitional Bylaw provision should provide to
CCWG-Accountability Work Stream 2 recommendations, when supported by Full
consensus or consensus as described in the CCWG-Accountability Charter, and
endorsed by the Chartering organizations, similar status to recommendations
from AoC Review Teams.[2] <https://mail.google.com/mail/u/0/?tab=wm#_ftn2>  The
Board’s decision would be subject to challenge through enhanced
Reconsideration and Independent Review processes.

*11.2  Items for Consideration in Work Stream 2*

During the course of its deliberations, the CCWG-Accountability encountered
several items that it considered should be resolved as part of Work Stream
2. The list at the date of this report is as follows:

   - Refining the *operational details* of Work Stream 1 proposals,
   including but not limited to:
      - Establishing rules of procedure for the enhanced Independent Review
      Process.
      - Improving ICANN's budgeting and planning process to guarantee the
      ability for the community to have input, and for that input to
be given due
      consideration.
      - Defining ICANN Community Forum practical modalities.
      - Clarifying understanding of the fiduciary duties of Board Directors
      and related expectations concerning Director behavior for the Board.
   - Further assessing enhancements to *governments participation* in ICANN.
   - Considering the issue of *jurisdiction* as described in Section 11.3
   below.
   - Enhancing *SO and AC accountability* (see Section 8.3).
   - Instituting a *culture of transparency* within the ICANN organization:
      - Limiting ICANN's ability to deny transparency and disclosure
      requests.
      - Enhancing the Ombudsman's role and function.
      - Enhancing ICANN's whistleblower policy.
      - Increasing transparency about ICANN interactions with governments.
   - Defining security *audits* and certification requirements for ICANN’s
   IT systems.
   - Considering improvements to *diversity* in all its aspects at all
   levels of the organization (see Section 8.1).
   - Defining the modalities of how ICANN integrates *human rights* impact
   analyses, within its mission.

*11.3  Jurisdiction: A Multi-Layered Issue*

Jurisdiction directly influences the way ICANN's accountability processes
are structured and operationalized. The fact that ICANN today operates
under the legislation of the state of California grants the corporation
certain rights and implies the existence of certain accountability
mechanisms but also imposes some limits with respect to the accountability
mechanisms it can adopt. The topic of jurisdiction is, as a consequence, of
relevance for the CCWG-Accountability. In particular, a question one may
ask to frame the discussion is, “Can ICANN’s accountability be enhanced
depending on the laws applicable to its actions?”

*Current situation: *

ICANN is a public benefit corporation incorporated in California and
subject to California state laws applicable U.S. federal laws and both
state and federal court jurisdiction. ICANN is also a tax exempt entity
under U.S. federal tax law.

In addition, ICANN is subject to a provision in paragraph 8 of the
Affirmation of Commitments signed in 2009 between ICANN and the U.S.
Government, through its Commerce Department, as follows:

*8. ICANN affirms its commitments to: (a) maintain the capacity and ability
to coordinate the Internet DNS at the overall level and to work for the
maintenance of a single, interoperable Internet; (b) remain a not for
profit corporation, headquartered in the United States of America with
offices around the world to meet the needs of a global community; and (c)
to operate as a multi-stakeholder, private sector led organization with
input from the public, for whose benefit ICANN shall in all events act. *

ICANN’s Bylaws also state that its principal offices shall be in California
as follows:

*ARTICLE XVIII: OFFICES AND SEAL*

*Section 1. OFFICES*

The principal office for the transaction of the business of ICANN shall be
in the County of Los Angeles, State of California, United States of
America. ICANN may also have an additional office or offices within or
outside the United States of America as it may from time to time establish.

ICANN also has offices in other countries and operates in other regions of
the world and is subject to the laws of the jurisdictions in which it has
offices and operates.

*A Multi-Layered Issue: *

The CCWG-Accountability has acknowledged that jurisdiction is a
multi-layered issue and has identified the following "layers”:

   1. *Place and jurisdiction of incorporation & operations, including
   governance of internal affairs, tax system, human resources, etc. *

*Associated requirements: *

   1.

      Strong corporate governance legislation, providing efficient
      accountability,
      2.

      At the same time enabling flexibility so that the multistakeholder
      model can be translated into this legal framework.




   1. *Jurisdiction of places of physical presence.*

*Associated requirements:*

   1.

   Places of physical presence need to provide stable labor legal
   frameworks (to hire staff)
   2.

   Some level of flexibility for visas (to accommodate international staff
   and travel by community members)
   3.

   Physical presence should also take into account security concerns, both
   for the sake of staff as well as for operations.




   1. *Governing law for contracts with registrars and registries and
   ability to sue and be sued in a specific jurisdiction about contractual
   relationships. *

*Associated requirements:*

   1.

   Stable and predictable legal regime
   2.

   Affordability of legal actions for parties other than ICANN (both in
   terms of costs and in terms of understanding the legal system)
   3.

   Balancing the need for level playing field amongst contracted parties
   across the globe and the necessity of each contracted party to comply with
   national legislation




   1. *Ability to sue and be sued in a specific jurisdiction for action &
   inaction of staff, and for redress and review of Board Decisions, IRP, and
   other Accountability and Transparency issues, including the Affirmation of
   Commitments *

*Associated requirements:*

   1.

   On the one hand, some stakeholders consider that the ability to enforce
   the accountability mechanisms in front of a court are essential.
   2.

   On the other hand, other stakeholders do not find acceptable that the
   legal system of a single country would play such a role in ICANN’s
   accountability framework. Their requirement would be to avoid as much as
   possible the use of any single country’s legal system.




   1. *Relationships with the national jurisdictions for particular
   domestic issues (ccTLDs mangers, protected names either for international
   institutions or country and other geographic names, national security,
   etc.), privacy, freedom of expression*

*Associated requirements:*

   1.

   No specific jurisdiction should be in a position to over-rule domestic
   jurisdictions when dealing with particular domestic issues (for example
   jurisdiction of incorporation interfering with a decision regarding a
   specific ccTLD policy).
   2.

   Some commenters have touched upon the possibility of tailor-made host
   country agreements.




   1. *Meeting NTIA requirements*

An overarching requirement of the CCWG-Accountability is represented by the
criteria set by the NTIA at the outset of the IANA Stewardship Transition.

Associated requirements:

   1.

   Support and enhance the multistakeholder model
   2.

   Maintain the security, stability, and resiliency of the Internet DNS
   3.

   Meet the needs and expectation of the global customers and partners of
   the IANA services
   4.

   Maintain the openness of the Internet
   5.

   The proposal cannot replace the NTIA role with a government-led or an
   inter-governmental organization solution.

   *Initial gap assessment based on current CCWG-Accountability proposals: *

   At this point of the work of the CCWG-Accountability, taking into
   account the comments received, the following issues have been identified
   for further investigation:


   - Requirement 4 (ability to sue and be sued to enforce Bylaws or
   accountability mechanisms): while some consider this requirement to be
   necessary, others would avoid as much as possible the use of any single
   country’s legal system.
   - Trade-off between CCWG-Accountability requirements and options under
   California law, particularly when discussing the community empowerment
   model.
   - Whether IRP decisions against ICANN would be binding despite local
   jurisdiction decisions.
   - Requirement 3 on governing law for contracts with registrars and
   registries may require further investigation.

While these issues require further investigation, the CCWG-Accountability
has not yet conducted a substantive examination of alternative
jurisdictions that would better fit its requirements. While some commenters
suggest that incorporation of ICANN under other legal systems, such as
Swiss not-for-profit, would be beneficial (yet the basis for their
assumption remains uncertain), further analysis and deliberation is needed
on a fact-based approach to be entertained during Work Stream 2.

*Next steps *

Consideration of jurisdiction in Work Stream 2 will include:

   - Confirming and assessing the gap analysis, clarifying all concerns
   regarding the multi-layer jurisdiction issue.
   - Identifying potential alternatives and benchmarking their ability to
   match all CCWG-Accountability requirements them with the current framework.
   - Consider potential Work Stream 2 recommendations based on the
   conclusions of this analysis.

The timeline considered for this work is consistent with the overall
approach for Work Stream 2. A specific subgroup of the CCWG-Accountability
will be formed and, while reporting to the CCWG-Accountability as a whole,
tasked to undertake the steps described above. Two periods of public
comments are envisaged, around ICANN55 and ICANN56. Recommendations will be
submitted by ICANN57.



------------------------------

[1] <https://mail.google.com/mail/u/0/?tab=wm#_ftnref1> ICANN has, where
appropriate, used transitional provisions within its Bylaws to identify
issues that are necessary to address on a transitional basis, but will
expire upon the occurrence of another event. The broadest use of a
transitional provision was in 2002, after the large ICANN Evolution and
Reform effort, which made commitments to future occurrences such as a new
MoU between ICANN and a group of Regional Internet Registries at the time
when new obligations would come into force for the ASO, or obligations that
would be taken on by the ccNSO once formed. See
https://www.icann.org/resources/unthemed-pages/Bylaws-2002-12-15-en#XX
<https://www.icann.org/resources/unthemed-pages/bylaws-2002-12-15-en#XX>.

There is also precedent for the use of transitional terms after the GNSO
was restructured, and the Board seat selected by the At-Large Community was
implemented.

[2] <https://mail.google.com/mail/u/0/?tab=wm#_ftnref2> The transitional
Bylaw provisions will require the ICANN Board to consider approval and
begin implementation of review team recommendations within six months.

2015-08-12 5:58 GMT+02:00 Lynn St.Amour <Lynn at lstamour.org>:

> Here for your review… possible additional FAQ questions.
>
> Look forward to your comments/edits.  Will also post on Dropbox under
> "FAQ".
>
> Best,
> Lynn
>
>
>
>
> On Aug 11, 2015, at 5:31 PM, Alissa Cooper <alissa at cooperw.in> wrote:
>
> > Sounds good. Manal, if you and Lynn can propose additions that would be
> excellent.
> >
> > Thanks,
> > Alissa
> >
> > On Aug 8, 2015, at 4:18 PM, Manal Ismail <manal at tra.gov.eg> wrote:
> >
> >> Thanks .. very useful ..
> >> I still have to go through them but I agree with Lynn, there were only
> a few ..
> >>
> >> In principle, I think we should add only questions about the overall
> proposal (compatibility/workability) or about the ICG findings and/or role
> ..
> >> I recall many questions about details of the individual proposals and
> don't think we should add those (maybe share them with chairs of the
> relevant OCs or WGs?)
> >>
> >> Kind Regards
> >> --Manal
> >>
> >> -----Original Message-----
> >> From: Internal-cg [mailto:internal-cg-bounces at ianacg.org] On Behalf Of
> Lynn St.Amour
> >> Sent: Saturday, August 08, 2015 4:51 PM
> >> To: Alissa Cooper
> >> Cc: IANA etc etc Coordination Group
> >> Subject: Re: [Internal-cg] Questions from webinars
> >>
> >> Hi Alissa,
> >>
> >> I think there were a small number of questions that we should think
> about adding to the FAQ.   I am happy to look at that on Monday (away this
> weekend at a wedding).
> >>
> >> Best,
> >> Lynn
> >>
> >> On Aug 7, 2015, at 3:27 PM, Alissa Cooper <alissa at cooperw.in> wrote:
> >>
> >>> The secretariat recorded the questions that were asked during the
> webinars (attached).
> >>>
> >>> Do people think any of these should prompt us to add Q&As to our FAQ?
> >>>
> >>> Thanks,
> >>> Alissa
> >>>
> >>> <Questions from ICG Webinar 1 and
> 2.xlsx>_______________________________________________
> >>> Internal-cg mailing list
> >>> Internal-cg at mm.ianacg.org
> >>> http://mm.ianacg.org/mailman/listinfo/internal-cg_ianacg.org
> >>
> >>
> >> _______________________________________________
> >> Internal-cg mailing list
> >> Internal-cg at mm.ianacg.org
> >> http://mm.ianacg.org/mailman/listinfo/internal-cg_ianacg.org
> >
>
>
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>
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