ATRT Interaction with the Community Cartagena, Colombia 6 December 2010 >>BRIAN CUTE: Alice, can we get the recommendations on the screen? We'll be starting in just a moment, folks. Actually, the introductory remarks. Alice, we'll just go with the recommendations up on the screen when you have a moment. Welcome to this meeting of the ATRT. Thanks for being here. >>ERICK IRIARTE: My name is Erick Iriarte, and I go on in Spanish. The review team conducts its work according to the Affirmation of Commitments roles, and it was requested by the ICANN board to provide recommendations to improve the responsibility and transparency of ICANN not beyond December the 21st of this year. This revision team has performed different revisions for the Internet to help the team in the decision-making process of ICANN. This same revision team published a recommendation proposal for the board which was proposed and given to the community for public comment on November the 3rd, 2010, and the period was closed on December the 30th this year. We would like to thank you for the comments to be considered in the final recommendations to the board. This public session gives us the opportunity to receive feedback from the ICANN community when it comes to the already proposed recommendations. The team is very interested in listening to the ICANN community to provide the most appropriate proposals focused on transparency and responsibility or accountability. This session will last one hour and a half and the proposals will be exposed and read to the audience, after which the -- we will open the floor to the audience to listen to the observations and comments of the community, and I would like to listen to those participating in the meeting. Thank you very much. >>BRIAN CUTE: Welcome to the Accountability and Transparency Review Team's public session. Thank you for all for attending. As you know, the accountability and transparency review team has posted draft proposed recommendations for public comment and are looking forward in this session to hearing from you as to any suggestions you may have, reactions you may have. We as a team are obligated under the Affirmation of Commitments to provide final recommendations to the ICANN board of directors by December 31st, 2010. This week, we've met in an open session with the GAC and received reactions from the GAC to our proposed recommendations. We've met in an open session with the board of directors and had a very lively interchange with the directors and got their reactions, but now this is the public session, and it's very important that we hear from you because we have a brief opportunity to make changes to these proposed recommendations, modifications, improvements, subtractions. Whatever you can help us do in providing the best possible implementable recommendations to the ICANN board of directors is the objective. So what we're going to do for this session is put the recommendations themselves up on the screen. There are hard copies of the recommendations for all of you up on the ledges there to refer to for the next hour and a half. And please note, if you haven't had a chance to read the report, although the recommendations are up on the screen, there's a fairly lengthy report that we put together that under- -- demonstrates our analysis of the state of affairs in ICANN with respect to Paragraph 9.1 of the Affirmation of Commitments as well as a review by the independent expert, the Berkman Center for Internet and Society, so I encourage all of you to read the report in its entirety. We will only have the proposed draft recommendations on the screen today. So, without further ado, we simply want to open the mics and hear from you and please, whoever has reaction or a question, the floor is open. >>STEVE DelBIANCO: Thank you, Brian. Steve DelBianco with Netchoice. No need for me to repeat what I've already submitted in writing. It's the notion of defining "public interest." Both for the purpose of this review and subsequent reviews and basically anything that looks back to the words "public interest." It was used 14 times in this morning's session by a variety of speakers. It appears 19 times on 11 pages in your recommendations. And yet we've never defined it. It isn't even that hard to define it, but if it were too difficult to define, or a process were needed, I would think that your recommendations could include something that says, "For purposes of future reviews and judging ICANN's performance, we ought to define 'public interest.'" Of course I'm advocating a very definition, not a scope creep definition, a very narrow definition which it's the availability and integrity of registrations and resolutions and I won't go into the details, I've described them to you many times. When I went to the mic and this discussion in Brussels, I saw some glimmers of understanding that "public interest" doesn't always mean the same thing. It is in the bylaws three times. It doesn't -- it's not defined there. But it doesn't mean the same thing to a group that manages the DNS as it does to a group that's in charge of AIDS, world hunger, or climate change. Each of them has their own definition of "public interest." So obviously the word can't really be self-evident because it's individually evident, depending upon what you're talking about. So I would invite this team to consider recommending the definition that I've put forward, that Netchoice has put forward, the availability and integrity of the DNS. That's a good definition to embrace, since it's narrow, tightly tied to the scope, and gives us an opportunity to start to deliver against metrics on those very two public interest items. But if that's too much to bite off, I would ask that the group consider our recommendation that the community embrace the idea of defining the public interest. I hate to think of a joint working group or a PDP and I remember in Nairobi it was -- it was -- possibly I think it was Peter it was you who stood up and said, "Is anybody here interested in doing a joint working group on public interest?" And I think three or four hands went up and two of them were mine, right? But there wasn't a very turnout in Nairobi, so perhaps that didn't happen. You're past the really hard part of what has been an immense effort. You guys have done an amazing job. You got a lot of compliments from the GAC yesterday, and those are hard to come by. Think about it. And let me add my voice. I think you guys have done a fabulous job and you're almost there, but I do think we have not crossed the T and dotted the I until we define the critical item of "public interest." Thank you. >>BRIAN CUTE: Thank you very much, Steve. Actually, if you can just show the three numbers that precede the text around "public interest." You just had it on the screen. Thank you, Steve, and we appreciate your comments. We are actually in the process this morning, we went through the public comments that we've received. I think there were about 18 to 20 submissions. We are actively going through them, looking at the proposed recommendations, and identifying where, based on public comment, modifications should be made. We've heard you now, and what we want to point out is that while we have not established a definition of "public interest," because I think I hear you share our view that "public interest" can mean a number of different things, it depends on what community you're in, it depends on what government capitol you're sitting in, and we didn't view the Accountability and Transparency Review Team as a unique body of experts to create a definition of "public interest," but what we did do in the early phases of our work was develop this language which is on the screen now. So with respect to its work, the review team assumes that ICANN's accountability should encompass at least the following three spheres. First, public sphere accountability, which deals with mechanisms for assuring stakeholders that ICANN has behaved responsibly. Second, corporate and legal accountability which covers the obligations that ICANN has through the legal system and under its bylaws. And, three, participant in community accountability that ensures that the board and executives perform functions in line with the wishes and expectations of the ICANN community. Now, moving to your question, the review team believes that all of these forms of accountability must be considered and balanced. In other words, the public interest and the interests of individual stakeholders are interdependent. The RT also believes that the public interest is served ultimately by creating an environment in which all stakeholders can be assured that the rules will be, one, debated; two, refined to reflect relevant input from the community, including the community of governments participating in the ICANN process; and three, honored. So while we have not established a definition of "public interest," this language has guided our work. >>STEVE DelBIANCO: May I follow up? May I follow up? The definition there is the definition of accountability and transparency and how it affects public interest. Not the public interest as it's served by ICANN's functioning, according to its mission. So there's a little public interest, little p, little i, when you've defined here from the standpoint of a team who is looking at accountability and transparency. That's what that is saying. It isn't the same public -- word public interest that shows up three times in the bylaws, five or six times in the AoC. That is a broader interest of ICANN at large, not just the words "accountability and transparency." >>CHRIS DISSPAIN: Steve, speaking personally, I agree with your quest for -- >>STEVE DelBIANCO: It is a quest, yeah. >>CHRIS DISSPAIN: -- for definition of "public interest." I just don't think this is the place. I actually think if the community did get clear about what is meant by this term we all bandy around, I think we've been clear in our report what we mean by "public interest" in the context of accountability and transparency, which is what we are there to do. >>STEVE DelBIANCO: Uh-huh. >>CHRIS DISSPAIN: I'm just not sure that this report would be the place or the ATRT would be the place to have a wider discussion about "public interest." >>STEVE DelBIANCO: Chris, I would invite you to think about this: Accountability of ICANN is not its accountability as to whether it's accountable. It's its accountability as to the fulfillment of its mission and that's why the narrow definition doesn't work. If you can't adopt one, at least propose that the community adopt one. Thank you. >>BRIAN CUTE: Thank you, Steve. And if -- on the screen, if you can revert to we -- again, we have hard copies of the recommendations. I hope all of you have one in hand to refer to for posing questions to us but if you could, yeah, revert back to the recommendations on the screen and we'll keep those posted and scroll them as we move through this session. Ayesha. >>AYESHA HASSAN: Thank you very much. Ayesha Hassan from the International Chamber of Commerce. As many of you know, ICC has a membership of companies and associations from across sectors and geographies, and we have submitted comments in writing to the ATRT. We were very pleased with the recommendations, the draft recommendations that were put out and have expressed our general support for them, and our comments do provide some very specific areas where we highlighted ideas for elaboration or clarifications, and so we thank you in advance for taking those on board. I also wanted to underscore that we made a point in the introduction which is that you all have done an excellent job of assessing and evaluating not only the input that you received throughout your process, but also the input that has been generated by the community through various discussions over the past few years, and really you encapsulated a number of those ideas in very concrete ways and we applaud your effort in doing that. In our introduction, we also have asked that one of the next clarifications should be how the recommendations will be taken up by ICANN and a time frame within which that process will commence and proceed. A lot of the great ideas that have been captured here have been supported and commented on by the community for a couple of years now, and we'd really like to see them implemented. Thank you. >>BRIAN CUTE: Thank you very much for that, Ayesha. And in fact, we are focused on that specific point immediately. In yesterday's discussions with the directors, the board of directors, we asked specifically the implementation question: Are these proposed recommendations implementable? Are there any barriers that you see? Can you flag things for us? And now, in our deliberations privately, taking in the public comments -- yours included, ICC's included -- are specifically focused on where can we put, you know, either metrics or some kind of benchmarks in place, whether it's an implementation date or not. We've had very healthy discussion about this. There are some recommendations which will more easily lend to clear metrics or benchmarks and implementation dates. There are others, not so much. So we're literally in the process of -- we've heard this comment from the community. We understand the criticality of implementation as well, and we'll put serious focus on that as we move to our final report. >>AYESHA HASSAN: Thank you. That is confidence-building. Thanks. >>LOUIE LEE: Hi, this is Louie Lee. In the AoC, there is verbiage saying that there has to be activity regarding this report's actions by June, right? So whether they will be completed -- they will all be completed or not, I don't expect that, but there is a commitment to at least start. >>BRIAN CUTE: But just to be clear, that -- we're not stopping there. We're looking at each recommendation on its own. We're looking at start dates, possible end dates, if they're workable, other metrics that may be applied. There's to be a follow-on review team of accountability and transparency under the Affirmation of Commitments that will take place roughly two years after the board has taken action in June, but we are trying to build in specific markers that will allow measurement when we get to that stage as well. Marilyn? >>MARILYN CADE: Thank you. My name is Marilyn Cade and I'm speaking as an individual. I will take note of the fact that I was on the President's Strategy Committee for three years, and along with primarily board members I participated in a process that led to the development of something called "Improving Institutional Confidence." That process included a significant amount of outreach and interaction, not just meetings held at the ICANN meetings but also outreach into the community, a significant number of comments. I'm pleased to see reflection of the work of that group and their report reflected and taken into account. I'm now going to make a comment that is somewhat related to the comment that was made by Steve DelBianco. I think there probably is also a difference between ICANN's role in the public interest and ICANN acting in the public interest in the decisions that it takes within its mission and taking the public interest implications into account on decisions it makes. So while it may not be your task to examine that discussion area, I think it is an important discussion area. I could cite the parable of the nine blind women and the elephant. Obviously, to whomever you are, the elephant looks like the part you're touching. It's important to get this definition of "public interest" correct, I think. Because on the one hand, I was excited by the enthusiasm and the depth of vision of the Colombian ICT minister this morning, and I am also convinced that building infrastructure in a country, building capacity, training citizens, empowering them, helps to generate the development of jobs. But I also understand that ICANN's role in that is very limited. And so we need to think about what it is we do and how we act in the public interest broadly. So I would say that clearly needs more work and I appreciate the fact that you've helped to charter the need, I think, for further work. My comment now has to do with something I'm disappointed, as much as I am pleased by this and I congratulate you on your work and I am impressed by the amount of work that you have put into this and I am impressed by what I consider the effectiveness of this approach, because it was a struggle to reach agreement on how names for the first review team would be put forward. It was not always -- it was not always consensus within the groups who were giving names, but, in fact, this process seems to be working or else you're all just exceptional individuals. So congratulations on that and on the work. So here's what I don't see here that I would like to see. I think it is important, in fact, to charter the group of independent experts to evaluate the accountability mechanisms that ICANN has, but I personally feel, and have stated before, that there needs to be an external body to -- that can hold ICANN accountable, if there is justifiable need to do that. Otherwise, we throw ICANN into the courts when its decisions are appealed or somehow have not been adequately dealt with in the three levels of accountability mechanisms within ICANN. The process you're proposing right now is still within ICANN. This organization has to exist in a much larger ecosystem, not just the Internet ecosystem. It has to be accepted by IGOs and by governments, and we have to get these accountability mechanisms and these review mechanisms right, and I'd like -- I still maintain we need some additional mechanism -- first of all, we need to fix the ones we have, I think, and strengthen them. My final point would be that the microphone has fallen. Sorry, guys. My final point would be that I'm not quite sure I understand and I would like to understand. I applaud the comments that are made here about working with the GAC and the GAC working within itself to define what is advice. I think that's an excellent initiative, and I look forward to seeing it advance quickly. I don't really understand Number 30, which says that distinct from the AoC review, that ICANN should establish a regular schedule of internal review to ensure transparency and accountability is maintained throughout the organization. I guess I would have thought that would be standard operating practice for us. That would be my first point. And then my second point may be: We go back to my first comment about acting in the public interest within our scope. We probably need to figure out a little more clearly who we're accountable to. >>BRIAN CUTE: Thank you, Marilyn. Alice, could you throw Number 30 up on the screen that Marilyn just referred to, so we can have it read? Thank you. Becky, if the mic is going to behave for you. >>WARREN ADELMAN: Brian, this is Warren. >>BRIAN CUTE: Oh, Warren. I'm sorry. Yeah. >>WARREN ADELMAN: Yeah. Can I just add a review on that to respond to Marilyn? >>BRIAN CUTE: -- from GoDaddy who is on the Accountability and Transparency and Review Team is here. Please, Warren. >>WARREN ADELMAN: Yeah. I just want to say that if you read in the detail outside of the recommendations section and into the body of the report, I think you'll find that that particular issue of accountability outside of the existing -- binding accountability outside of the existing ICANN structure was something that was hotly contested within the ATRT and you'll see the reflection of that in the fact that there is sort of a number -- at least there's two sets of views on this about whether or not there should be a binding decision- making body. And so it is something that the ATRT itself could not come to agreement on. >>BRIAN CUTE: Becky. >>BECKY BURR: Thanks. I have some insight into how hard you all worked on this project, so I do want to commend you for a very fine work product. I have a couple of points that I'd like to make, and the first one is: I think it's much more important to define "public policy" than "public interest." The question of what is public policy is a critical feature of the GAC relationship and that whole thing, and so I think the -- you don't really wrestle with it. Now, I don't know if Bertrand is here, but he and I have had many debates about this and the wiki definition of "public policy" is whatever a government thinks is interesting, so I think that's a difficult problem that should be addressed. The other aspect of the recommendations with respect to the GAC that I think are very important is that in the provisions of the bylaws that talk about taking into account the advice of the GAC and -- and that whole process of meeting with them and finding a compromise and all of that is -- is -- has a phrase that I didn't find in here. It's "the advice of the GAC with respect to the formulation" -- "the development and formulation of policy." I don't think you guys really got to the, "Okay, what's the development and the formulation of policy and when is something implementation and what's the role of the GAC and not." And the answer clearly has to be the GAC can talk about whatever it wants and offer whatever it -- advice it wants whenever it wants to, but the bylaws do provide a pretty clear limitation on when the formal mandated process comes into play, and I think it -- it's there for a purpose. That said -- I'm going to say this on the other side -- I think it would be really good if there was some way that the process of listening and receiving advice could be a little bit less formalized. I think Peter will know that there are times when it is very, very, very difficult for ICANN to provide a written response to important GAC questions because of external concerns like litigation, liability, and those kinds of things, and it would be worthwhile to address the very real need of the board to be able to exchange and respond to the GAC in a way that doesn't necessarily create liability or establish problems of that sort. The second point -- and I hesitate, to be sure, to disagree with Marilyn, but I think the recommendations on getting the President's Strategy Committee experts panel to look at these things, fixing the existing policies, is great. It's right. But I want to say to -- I want to add something to the debate. The paper says that the -- >>BRIAN CUTE: Is this the recommendation or the report? >>BECKY BURR: This is in the paper, but I think where you start really has a huge amount to deal with how you come out in the recommendations on this. And the question of bindingness gets described in this report, and I can't put my finger on it right away, on page 46 as the power to overturn board decisions. I don't think anybody has talked about an independent -- I'm saying independent, not external -- an independent body to evaluate whether the board, in making its decisions, complied with the bylaws and the rules. That is not the same as overturning the board's decision. It's a critical distinction, and if you don't make that distinction, then you fall into the California law trap and the superboard trap and all of those things which really shouldn't be in play. What I have advocated in various filings before has been an independent panel that can look early in the process, not late, not when there is a really big dispute, early in the process to see if there's been a process foul that needs to be fixed so that it doesn't go haywire. I can tell you I think the IRP for big commercial disputes is a great process. It's really interesting and wonderful. It's not going to be available to very many people. But that decision of the Independent Review Panel did not purport to overturn the decision of the board. It made findings about what it thought had happened, and then it said to the board now you guys go and figure out what it is. But I think if you don't -- This document is a critical document, and the words have to be really careful and precise. But did you a great job. >>BRIAN CUTE: Thank you, Becky. And thank you for those -- the substance of those comments. And noting Warren's earlier comment, this was one that we struggled with mightily. Thank you. We have Glenn Ricart next. And I have been a bit informal. If everyone would please introduce themselves when they step to the mic for those in the room and outside room. >>GLENN RICART: Of course. Glenn Ricart. And I also wanted to thank you for what I thought was a very good job in covering the bases with respect to accountability review and transparency. I wanted to especially note that I thought there were three great sets of recommendations, the first being an internal culture for internal review. A continuing culture for internal review I think is important for any body that's going to sustain itself in the long run. The second was drawing clear lines between inputs to ICANN and outputs decisions from ICANN. And I think your recommendations on that, I think you very carefully looked at what you can do, what can't be done, what needs to be redacted, what can be brought forward. And I thought you did a great job on that. And then the third thing was clarifying how the GAC relates to the decision-making process and saying that that needs to be clarified. I think that was also a very important part of your recommendations. And so I wanted to let you know I thought those three big pieces were very important. I do have a very minor question. The minor question is on number 4, building on the work already done, continue to expedite reforms to board meetings and work practices. And I was just looking for the transparency into what that meant, and is that referring to the Board Review Working Group? Is that referring to the Boston consulting group, that's actually number 5? I just wanted to gets what the antecedents were for the words in number 4. >>BRIAN CUTE: Thank you, Glenn. Thank you for those comments. In fact, we were going over this very recommendation this morning and flagged it as one that could be more clear. So we appreciate your comments. And what we feel we need do at this point is to check with the board to see specifically -- and this is in the context of metrics as well and implementation. We want to check with the board, specifically see what's under way, what's not under way and put a finer point on number 4 so there's clarity about what the expectations are to the extent that there are measurements or deadlines that we can apply to that, that those are clearer. So your point is well taken, and you will see something hopefully clearer in the final recommendations. >>GLENN RICART: Great. Thank you. >>BRIAN CUTE: Khaled. >>KHALED FATTAL: Thank you, Brian. Khaled Fattal, group chairman, Multilingual Internet Group, and also a member of the ICANN President's Advisory Committee on IDNs since 2005. Could I ask you, I have been trying to find it in the document at hand but I couldn't find it. Would it be possible to go a couple of slides back to the three points that were displayed on the screen? >>BRIAN CUTE: The accountability leading into the reference to public interest? >>KHALED FATTAL: Correct. >>BRIAN CUTE: Sure. >>KHALED FATTAL: And as this is coming up, I'm sure many of you who are lawyers on the panel would recognize the value of the right word being placed to the left or to the right of another word can have huge misunderstanding or the wrong intention. I put it to you that in the review of public interest, if I may recommend that at all times when the word -- when the terms "public interest" are being utilized, to also add "global." Global public interest. When the screen comes up, you will recognize that -- when it comes up, I will be able to clearly read it. >>BRIAN CUTE: It's the prior language. There you go. >>KHALED FATTAL: Ahh. Thank you. In number 3 it says participating community accountability that ensures that the board and executives perform function in line with the wishes and expectations of the ICANN community. I put it to you, ICANN is no longer only responsible to the ICANN community. ICANN today is responsible and accountable to the global Internet community, including those who have not yet joined the Internet. Now, if any of you on the panel disagrees with me, please raise your hand now. [ Laughter ] >>KHALED FATTAL: Thank you. At least now we have an understanding. The validity of the debate here is once the direction of the accountability is based on serving the global Internet interest, global public interest of the Internet, then many of the recommendations will start fitting within those broader lines. When we refer to the expectation of the ICANN community, again, if you agree with me that we are to serve the Internet -- the future Internet users equally as the current Internet users, then our focus needs to be on the global public interest. And I would recommend that the term "public interest," to have next to it "global" because I think that will shape up your policies far more cohesively in serving the Internet community. Thank you. >>BRIAN CUTE: Thank you, Khaled. >>PHILIP SHEPPARD: Thank you. It's Philip Sheppard. I would also like to speak on this topic of public interest. Maybe it's something that you would like to consider as a further overarching recommendation. I think it's interesting first if you compare the wording in the Affirmation of Commitments, indeed look back historically at the white paper and compare that to the ICANN mission statement. The ICANN mission state is much more operational about security, stability, et cetera, and has often been interpreted as being rather more pro building structures, new TLDs et cetera. Whereas I think the wording in the spirit of the AoC was much more different, different to that, broader in terms of public interest, public policy, whatever you wish to call it. I think you need to take that into account in terms of why you exist and what the purpose is of your report and on your recommendations going forward. Because I think as the first, of course, you are never going to be able to cut it quite right. And I think there are two aspects to that that may be relevant to this debate. First to do with antitrust and second to do with externalities or polluter pays. And let me explain. I had a minor revelation, minor concern some time back when I was sitting as part of the GNSO in a closed room at one ICANN meeting or another, and I realized I was surrounded by a number of the major market players in a particular market who were discussing rules for new entrants in that market. And I suddenly thought to myself should I be here or should I walk out now before we're raided by the antitrust authorities? Now, why aren't we raided by the antitrust authorities? Because of the nature of ICANN and because these debates take place in the public gaze, and because all stakeholders take part. But it is a very fine line we tread. And we do have incumbent players setting rules for new players. And the way we do that, I think, is difficult, and there are many traps in line there. So I think part of that is something that needs to be considered in the way we do things. And it relates to the second point I was talking about earlier which is the concept of externalities or polluter pays. Because what we see as a consequence of TLDs sometimes and the new expansion of TLDs, for which I represent certain interests who may well be interested in those, the dot brands of this world; nevertheless, we are creating business opportunities which have external costs for those who are not benefiting from those externalities. Now those exist in part of defensive registrations on the second level and we may well see defensive registrations at the top level of $185,000 defensives with new TLDs going forward. Now, in public policy terms, you often try to think of the polluter pays. In other words, those that are benefiting from that or creating externality should be those picking up the tab somehow, but we have within the TLD world precisely not that happening. And I think that is also an area that may be something we should address in terms of thinking through who are the stakeholders that we should be taking most note of, as opposed to those stakeholders who are here for an hour, private interest. I think that was clear. >>BRIAN CUTE: Thank you very much. Jonathan. >>JONATHAN ZUCK: Yes, Jonathan Zuck from the Association for Competitive Technology. When made Chris made reference to a quest, I of course thought of the song I should do tomorrow which is "Impossible Dream." So I may switch it out from "What a Wonderful World." That might have been the wrong choice before. I want to join everyone, having listened to all those audio transcripts of the meetings, et cetera, you obviously worked very hard on this document. And I know that it's difficult to then have everyone just caveat that and then load up the criticisms. But it's my turn. But you at least have the benefit of having heard them before. I'm very interested in this topic of metrics, because I believe that true transparency and ultimate accountability are wholly dependent on having objective criteria for measuring those things. And that absent that, all we will have is a continuation of what amounts to circular logic and abstractions. So the unbeatable foe in this impossible dream is this abstraction. And this unreachable star is trying to find some objective measures for real transparency. And I don't just mean metrics surrounding accountability and transparency. I believe that true transparency requires metrics across the board and the organization that has to do with contract compliance, that has do with success factors in the new gTLD program that Bruce raised. Those things are necessary for transparency. You can't have a transparent organization unless everyone knows what you are trying to do. And later on you can't judge the success of those endeavors unless everyone went in knowing what you were trying to do. I mean, a perfect example of this is this process itself. The Affirmation of Commitments says that the board has six months to deal with your recommendations. And then this morning, Rod, in his presentation, said that ultimately the board will decide which, if any, of these recommendations to adopt. And then the AoC goes on to say that further reviews will in fact make part of the review process reviewing how well the board incorporated the recommendations from the previous review committees. So you see a circle that's forming here. And none of that has anything to do with any level of real accountability. And fundamentally, I think that if we're going to have a situation in which we're trying to really build a corporation with a capital "C," the ICANN, the international corporation and have it be truly accountable to its stakeholders, there have to be some objective measures for success that have to be established up front, across the organization, and it has to be a board mandate that it happens. We have to stop talking about it and do it. And it came up early in the review process, and somehow died, atrophied on the vine and I don't know why. But I would love an answer to that question. You made these incredibly good recommendations for handling comments for advice from the GAC and public comments and handling them in a more structured way, so this is your opportunity to help me understand what happened to that recommendation in the process of your meetings. Thank you. >>BRIAN CUTE: The recommendation is still there. But thank you, Jonathan. And let me try to respond, and then open it to the team. First, I would take a little bit of issue with the characterization of the follow-on review team as creating nothing but a circular loop that doesn't add to accountability. The follow-on review team's role is to review the execution of ICANN's accountability and transparency, picking up the recommendations that come out of this review team. So what we have recognized and are focused on at this moment having heard your comments is that if we don't provide some measurement, some benchmark, some metrics around the recommendation we provide now, that review team may, in fact, turn out to be the circular mechanism that you are worried about. So we're attempting to address that. And again, we are only focused on our remit, which is paragraph 9.1 of the Affirmation of Commitments. All of your other comments with regard tot the healthy operation of a corporation, personally, in my view, I completely agree with. But our remit is paragraph 9.1. So as we have discussed this, we've recognized that ICANN itself also has a particular mission. It's a policy making, bottom-up policy- making body, and that some of the recommendations by their nature lend to measurement. Some of these things are more difficult to measure. And what we are trying to do at a minimum is where we can put clear benchmarks and metrics in place for these sets of recommendations we will then be handing off to the next review team and to the board in June as it picks these up and implements them, concrete metrics as you are asking. >>JONATHAN ZUCK: Can I just follow-up quickly? On your first point about the confines of your mandate, I understand that. The point I'm trying to make is that you're trying to evaluate the transparency of the organization. And I'm trying to say that the transparency of the organization is dependent on metrics across that organization. And objective measures of success. So that's why I am saying it is part of your mandate. But on your second point about some things can be measured and some things can't, I don't understand how we end up with zero recommendations for metrics out of a process like that. If these are proposed final recommendations, why isn't there a list of all the ones you thought could have been objectively defined if you're making that distinction? Am I misunderstanding something? >>BRIAN CUTE: Some things are harder. I don't mean to say things can't be measured but some are harder to put metrics on. >>JONATHAN ZUCK: But what about the ones that are easy? The ones that aren't as hard, why don't we see that list? >>BRIAN CUTE: The ones that are easy, we are literally in process, we were in the room this morning going through the process, recommendation by recommendation asking the question, "Does this recommendation lend itself to metrics?" This is literally the Q&A we're going through right now, and where we believe it does we're identifying the metrics that we can make part of the final recommendation. We are doing that. Others, some by their nature are more difficult to apply metrics to. That doesn't mean we shouldn't try. That doesn't mean we shouldn't, in our final recommendations to the ICANN board, say to the board metrics are important to accountability and transparency, and while we haven't provided specific ones with regard to these recommendations, we encourage you some benchmarks, some points of reference, here are some metrics that exist in the world and are recognized and useful. Nothing constrains us from doing that, but we are in that very process and do recognize that some are harder to measure than others. But where we can put metrics in, we certainly intend to. >>JONATHAN ZUCK: Obviously, nothing constrains the board to do anything with your recommendations, to be honest. But I would love to see a recommendation that metrics become a part of the organizational structure of ICANN across the board. >>BRIAN CUTE: Thank you. Peter. >>PETER DENGATE THRUSH: Thanks, Brian. Jonathan, I agree with you, as I usually do when you say that. We are work ongoing putting metrics, to continue your metaphor, no matter how hopeless, no matter how far. I wonder if you could put up the values section of the bylaws. I wasn't sure what Philip Sheppard seemed to give the implication that we are restricted only to the clauses of the mission. But if you go to the bylaws, the other part of how that mission is to be considered and how we're to operate is also governed by the values in the bylaws. I'll take some time to find that. Sorry, Alice, I just sprang that on you. I'm going to show none of the hesitation that Becky had with disagreeing with Marilyn. I think you're right, Becky, and I think Marilyn and others who think there should be an external judge wrong, and I believe in that because I think it's inherent in the mission. The fundamental idea of ICANN is to be self-regulating. And as soon as you go outside that and say we're going to allow someone else to be a judge, then all you do is risk shifting the focus of the energy to go where the real judgment is made. And what I want to do is I want to make ICANN the organization that has sufficient strength, sufficient organizational maturity and sufficient processes do that job for themselves. Because that's the test, it seems to me, of self-regulation. And it's said feedback is the breakfast of champions. So the result of this review should go in and be part of that review. And I don't see that, Jonathan, as just an endless cycle. It's the way organisms become self-aware. It's when the stimulus comes again and again and until eventually something has to be done to resolve it. What we have to do is make sure it only takes one or two cycles, I hope. Otherwise, you would then be right. Thanks. >> My name is Francisco Cardeau (phonetic), and I am from Colombia. I am from an organization called Amaretto, the international (inaudible). And I think your Spanish is improving. Okay. So I want to review on page number 20 talking about board decision shall be better justified and explained to the community. The thing is, in various part of ALS, and I don't see -- okay, my recommendation, our recommendation will be how to really make the public to be more -- to be paying more attention and participate with the ICANN at-large structure. So in the recommendations, there is nothing about how will be the relation with ICANN At Large, because ICANN At Large is the organization called to tell the people and show what are the political statements, the minutes that the board says. So normally you can put in the Web site and the people can go in the list. But if you put exactly how the ICANN At Large can improve, okay, the communication between the board and the community, maybe this will be accomplished. So that's the recommendation about that. >>CHERYL LANGDON-ORR: I hope you don't mind if I respond to that and I might be slipping off my ATRT hat and popping on my ALAC chair hat while I do so, so forgive me for that. Of course, what you are looking at there is very much enshrined in our ALAC review implementation process. So I think knowing the lion's share of work that's going on in making those more effective communication modalities. What recommendation 20 does as it is writ will allow us to have the material to make our communications more successful. So I'm not too concerned that if this recommendation gets to where it should be that we won't have the material that we need. And now, in the implementation of what our own review process told us we need to do, we'll have the mechanism and the model as well. >>BRIAN CUTE: Eric. >>ERICK IRIARTE: Thank you. I'm going to speak in English. And I guess there will be a translation. So I also come from the ALAC. I was one of the first members of the ALAC at that time of its creation, and I believe that the understanding and specific recommendation for the at-large structure participation is not the way, it's not the way to require that we actually have. We're working at a level that all the stakeholders could be -- could participate of the transparency processes and accountability processes of the ICANN. In particular, the recommendation is -- 21, 22 -- they are focused to participation, especially the multilingual participation. That is something that has been addressed on an ongoing basis in the document recommendations. And I understand that the proposed recommendations by the Colombian colleagues is something that we have understood that we had brought in and, just like Cheryl said, it's in the spirit that the transparency is not only a process of just one part of the parties, because they are told so, but a natural right for being part of the whole complete structure or at-large structure. Thank you. Erick. >>OLOF NORDLING: Two comments in the chat room, and one comes from Jorge, no family name mentioned. And it's short and succinct. Without membership, the Board of Directors has absolute power. And also, second one, also from Jorge which popped in during your discussion with Jonathan about metrics and such, and it's even shorter. Everything is very subjective. That's all for now. >>BRIAN CUTE: Thank you. I think the first -- I think the first comment has to do with the corporate structure, the fact that there are no members under California law in ICANN -- that are permitted under California law in ICANN, and that was part and parcel of the fourth bucket of recommendations in terms of review mechanisms and potentially external review mechanisms. That is an area that we looked at. We looked at the California law. ICANN staff provided us an overview of California law. We utilized the Berkman Center and the Harvard Law School resources to get their view of California law. And their recommendations speak for themselves. We've told you this is one that we have wrestled hard with, and the point was understood and was looked at. Alan. >>ALAN GREENBERG: Thank you. Alan Greenberg. I have really strong reservations about recommendation one, which talks about -- I know, no one else has -- which talks about skills and skills of directors. When one implements things like this, you tend to see a pendulum effect of things swing from one extreme to the other. And although I believe the board strongly needs that technical expertise on Internet matters, I worry about the requirement that the board needs expertise in this whole laundry list. Certainly there aren't enough NomCom spots to fill all of these needs. And the last thing I think the board needs are gurus and defenders of particular interests. The board needs people who can assimilate the complex issues that are presented, the multifaceted arguments, and try to reach some common ground which is going to support the Internet and the ICANN mission. And I don't think you get that by appointing specific expertise. The board needs access to expertise. The board needs some expertise on its -- on the board on technical issues, and hopefully that will be addressed by the liaisons, if not incidentally by other people. But I really worry about staffing the -- filling the board with people who will either be regarded as the expert and they have to be listened to or be in a situation where you have dueling experts, each defending their own particular needs. I think you really need people who are passionate about the Internet, who understand the issues well enough to assimilate things that they weren't schooled on, and to try to put together some common grounds. It's not an easy job but I don't think it's done simply by getting expertise. >>CHRIS DISSPAIN: Okay. So let me try to get some background into why this is where it's at and what it means. So first of all, I don't -- I think we have very specifically avoided using the term expert. That's a term that you have picked up. I don't think we say that anywhere. And I would be equally concerned on that viewpoint. >>ALAN GREENBERG: Skills and experience. >>CHRIS DISSPAIN: Skill set is what we're talking about. I haven't practiced law for ten years, but -- longer, actually, but I still have that skill set. And whilst I wouldn't call myself an expert, what I think I can do is I can ask questions of the legal advisors to the board from a position of understanding what they are talking about. That brings a particular skill set, I would suggest. The principle is that we think that the elected board members come from their constituencies and should be expected to bring nothing other than expertise, and I would use that term, of that particular area. That's all they should be expected to bring. They might bring a heap of other stuff, too, but all they should be expected to bring is that. And that, therefore, to be a good board, and it's a corporation, it's a board, you need to have a level of skill in certain areas. Law accountancy, public policy in the case of ICANN and so on. And so that is our starting point. Not -- And let me make it clear, we're not suggesting that that should overturn everything else. We don't think that that should -- that geographic diversity or gender diversity should be in any way subservient to those sorts of things. We also think that it's guidance, and it says specifically guidance, to the Nominating Committee. And I think the last point I would make is I agree with you completely about passion. But I wonder whether -- this is a function of getting really clear about what the board does. The passion should probably be in the SOs and the ACs. The board is there to perform a very limited specific function. Not that I'm suggesting board members should be dispassionate or unpassionate, but they are not there to fight a corner. They are there to be a board. >>ALAN GREENBERG: I don't disagree at all. The point I'm trying -- I think I want to emphasize and should be emphasized to the NomCom and to the SOs and ACs that put people on the board is you want people who are going to be able to grapple with the complex issues, often in things they have not seen before, and to somehow come to some common ground for the common -- for the public benefit. And of course the public is far wider than just the stakeholders who show up at ICANN meetings. I have one other very quick question. In number 7, you say "Develop complementary mechanisms for consultation with SOs and ACs on policy issues that will be addressed at the board level." Complementary with what? I'm not quite sure what it means and I would be delighted if someone can explain. >>BRIAN CUTE: We are actually actively reconsidering this recommendation, Alan. We had a very dynamic discussion around it this morning, and it may or may not be there in three weeks' time. But if it's still there, I hope that it's clearer. >>CHERYL LANGDON-ORR: Alan, put it this way. I gave them two options. One is delete and the other is will of words. >>ALAN GREENBERG: I wouldn't want to see it deleted. I think the concept is important, but it should be moderately understandable what you mean. >>BRIAN CUTE: Point well taken. Alan, what do you think it means? >> (Off microphone) >>BRIAN CUTE: We'll take that on board. Marilyn. >>MARILYN CADE: Thanks. I'm going to come back on a comment I made earlier and say that I would be -- My name is Marilyn Cade. I would be thrilled if, in fact, I believed or had seen demonstrated so far that we are capable of having independent review mechanisms inside of ICANN. I have participated in two ombudsman complaints, and this is not a complaint about the ombudsman by any means. But there aren't all that many people that have used the independent review mechanisms of ICANN. I have also participated in a reconsideration review, and I have to tell you that was the board reviewing itself. It was a subpart of the board reviewing itself. And I don't agree as a member of the community -- and this isn't so much about the outcome; but by experiencing a review process, you learn a lot about it. So I think, you know, I would say when you establish your so-called independent experts to evaluate the existing mechanisms, I urge us to really be independent about it. And I'm not sure we have demonstrated in the past, including based on the legal advice we take, that we are really willing to be independent. So in the past, I've suggested that it would be helpful for the board to have an independent legal adviser whose job it is to think about the rest of the issues, not just the protection of the corporation. The general counsel's office must, of course, protect the corporation, not for profit though it may be. That's my comments about whether or not we're going to get an independent set of review mechanisms, and maybe we really need to think a lot about the independence issue. My second comment -- I'm going to go to Number 7 because I had intended to mention it before, and I want it struck, and let me explain why. It is not your job as the board to make policy. In fact, as I recall, I think I contributed to writing the exigent circumstance clause which says you can only make policy in urgent situations and there is a time limit on that. So I don't understand how policy issues are being addressed by the board. Now, if the question is that the board, of course, is accepting policy recommendations or remanding them which, I believe, is your job, then, okay, we need some mechanism perhaps to make sure that you can get the kinds of information you need in order to help you to make that decision. If you start publishing as you've committed to do the staff reports that go to you and allow corrections, if they're incomplete, by the submitters, then perhaps you'll have that additional information you need. I would just say that probably there's one more point that has occurred to me, and that is, we still -- we -- you have, I think, benefited from having a rolling approach to taking comments. And I would applaud that as an example. >>BRIAN CUTE: Thank you, Marilyn. Wolfgang? >>WOLFGANG KLEINWÄCHTER: My name is Wolfgang Kleinwächter. I'm from University of Aarhus and chair of the 2010 nomination committee. And I want to make a comment to Recommendation 1. I think our committee very welcomes this recommendation. And if you ask us if it is doable, I think it is not only doable, we tried already to work in the spirit which is outlined in the recommendation. In particular, if it comes to the skill set which are needed in the board and also with respect to transparency, I think it would be a very good idea really to follow what by what was proposed with a stronger interaction, not only between the nomination committee and the board as such but also with the various committees of the board because, you know, this is certainly part of a bigger complex. And though these skills are not needed only in the board as such, sometimes you have special skill needs in the various committees. And I think this has to be taken certainly into consideration. And as the next advisor to the 2011 chair, I will certainly advise this. It is also good to have a better total interaction not undermining the independent status of the nomination committee. I think it is a very fine line. The consultation and communication has to be enhanced but should not change the basic interaction between the board and the nomination committee. That means to keep the independence of the nomination committee. This relates also to the issue of transparency, which is extremely important. But as I will outline also in my report on Thursday, I think confidentially of the nomination committee process is an important point to protect the candidates. There is a fundamental difference between selection and election. In an election, you are campaigning openly, then you collect votes and then you have winners and losers. In this selection process, there are no winners and losers. It is the task of the nomination committee to fill exactly the needed skills in the board. And people who are not selected does not mean that they are losers. They are just, you know -- does not fit in this very moment to the balance which is needed in the board. Next year the situation could be different. And so far, the level confidentially as it regards a person is an important point. This does not mean that there should be more transparency in the process. We discussed it already with the NomCom chair for 2011. Probably we will have a monthly announcement that we will say where we are in the process. It is a long process. It starts with outreach, then there is evaluation and the final selection so that people can follow step by step what the NomCom is doing by keeping the confidentially if it comes to persons, and I think this is a fine line which should be respected. But if I read your recommendations, I'm very thankful for this and to have many things to add. Thank you very much. >>CHRIS DISSPAIN: Just let me respond to that, Wolfgang. Thank you. It has come up a couple of times, and I'm glad you have read it correctly. I want everyone to be fully aware we worked extremely carefully with this particular set of recommendations to ensure that the confidentiality of the Nominating Committee process was preserved. And I personally think that the words, as you read them, do that and hopefully that will be the case. >>BRIAN CUTE: And if I can add -- thank you, Wolfgang -- we were discussing this morning the importance of the independence of the NomCom as well in this context as the skill sets are developed, given the hand-off from the board to the NomCom, if you will, that the independence of the NomCom be respected in that process as well. Thank you. Are we out of questions? We've got 15 more minutes. Okay. If we have no further questions, what you can expect from us is final recommendations to the board by December 31st. We are actively looking again at the comments that we've received, and thank you all so much. I'd like to observe a couple things. We provided only a 30-day comment period, and we apologize for that. That was not optimal for the community. And it was the constraints of our schedule that led us to that conclusion because if we are to prepare a report for the end of December that takes in the feedback you're giving us now, we need ample time. And we've only really got about two weeks to do that. So apologies for that, but thank you for your inputs. Please look for the, I think, two issues coming out of this session. One, Jonathon, metrics. Look at this report that comes out and look for the benchmarks and metrics that we've put in there and, hopefully, we'll hit the mark there. I'll also speak for myself and say that if I had to prioritize the message -- messages that we heard from the community and that we came upon in this process, it was the notion of "am I being heard?" And we put a significant emphasis on that point throughout our work, am I being heard. Do the processes that are in place give the community the notion that they are providing input into the process? And that as decisions are made and it comes out on the other end, there is a clear reflection that your inputs have been heard, factored in and recognized in the final product. And I want to make one commentary there. We ourselves have struggled with managing this process. This is not an easy process of taking comments. We're an ad hoc group that just came together and built our plane from the ground up and gave our best efforts. But it was helpful to us to have to try to manage that process. It is not an easy process. In our draft proposed recommendations, for example, and the report, we did cite a number of different comments and the comments are to support the proposed recommendations. We recognize that's not enough. What we're asking the board to do, and ICANN to do, is to identify the reason for your decision, point to the arguments that supported your decision and point to the arguments that opposed your decision and explain why you didn't adopt them. We're asking for a very comprehensive treatment of comments. We as a team will endeavor in our final report to do an even better job than we've done. But we recognize the flaws there. Chris, did you want to say something? Sure. >>CHRIS DISSPAIN: Thank you, Brian. I just wanted to say one very brief thing, which is it has been fantastic to sit here and listen to everybody say "thank you very much," "great job," et cetera. That's great and I'm sure we'll appreciate that. But actually the person who did most of the work is Brian, and Brian deserves a huge amount of credit for this report. Thank you, Brian. [Applause] >>BRIAN CUTE: Thank you, Chris. Cheryl? >>CHERYL LANGDON-ORR: While we're thanking people -- and don't worry, we are not going to thank each other. That would be ad nauseam, indeed. I just wanted to point out all of you and the communities you represent and the rank and file of people that spent hours and hours and hours of giving input. It is just not the numbers of public comments, well-written and articulated as they are, that we have in the current recommendation review set, it is the interactions we've had and the interest that you have shown as a community in our work. We hope we have been transparent. It's no good being transparent unless someone is looking in the window. We trust that as you looked in the window, you were at least starting to see a few things that you liked. And I think thanks to each and every one of you as members of the community is really very important to say. And thanks, Brian, you were good. >>PETER DENGATE THRUSH: Can I thank Cheryl for thanking the community. [Laughter] No, I really did want to say something more serious. I wanted to include in the list of thanks the very good support work we have had from the staff, particularly with Alice but also Cory and others who have done all the remote participation. They flew to Beijing and set up remote participation in the community and have done a really good job including under occasionally some very difficult personal circumstances. So thank you to the staff. I add to that Denise Michel who has been available up at a very high level providing all sorts of documentation from the morass of ICANN documentation. Thank you, staff. >>BRIAN CUTE: Other comments from the review team? Erick? >>ERICK IRIARTE: I just want to thank for all of the acknowledgments, but I would also like to take the opportunity to have worked in a multilingual manner in this work team. This has been an important responsibility, so I would like to thank the whole of the staff and to you. And everything we do depends on you because transparency, accountability is not done only with a report but it is done with the activities that you control on a daily basis. This is just a snapshot. The day-to-day depends on you. >>BRIAN CUTE: One more thing to expect from us in the final recommendations, we will provide observations on this review process. We are going to provide, for the purposes of improving reviews going forward, what our works were, what we could have done better and we think we did well and should be adopted going forward. That should be part of the report, and we are offering that in the form of observations for the community to take in and for ICANN to take in. And although you preempted me, Peter, I am going to take another minute to say -- ah, we have online comments, Olof? >>OLOF NORDLING: Final word from the chatroom, from M. Sivasubramanian. Does this process include a review of the accountability and transparency of various ICANN constituencies that combine together to make the ICANN? >>CHERYL LANGDON-ORR: Simple answer. >>BRIAN CUTE: No. >>CHERYL LANGDON-ORR: Let me give that answer. No. >>BRIAN CUTE: No, it does not. We followed the Affirmation of Commitments paragraph 9.1. Just a couple more minutes. Bear with me, please. I do want to thank two individuals in particular, Becky Burr, who made the decision to stand down from this review team, made tremendous contributions and valuable contributions. And we thank you, Becky. [Applause] And I have to say also that Chris Disspain who came into her place did an amazing amount of work jumping into the deep end with both feet and moved mountains. Thank you, Chris, for that. [Applause] And I also want to thank Willie Curry who got a job as a communications minister or commissioner in South Africa and had to leave us under wonderful circumstances. Willie provided some really thoughtful inputs. We thank him for his work. And to Manal Ismail who is the vice chair and Warren Adelman from GoDaddy who is not here. I do want to echo what Peter said. Alice Jansen did a tremendous amount of work. We have something for you. >>CHERYL LANGDON-ORR: Come on up. We'll go down. Go down. Go down. Ladies and gentlemen, while we embarrass the living daylights out of Alice, I have had the honor and privilege of working with some pretty amazing staff in ICANN and Alice jumped in the deep end with us as a very new staff member. She hasn't even shown that she's had difficulty swimming in the deep end of the tank. She has been nothing short of phenomenal. And if there is ever a keeper, if anyone is noticing, this is one of them, okay? She has been brilliant. And thank you, Alice. [Applause] >>CHRIS DISSPAIN: On behalf of Brian, I close up. Thanks, everybody.