ASO AC Teleconference
6 September 2017
Minutes

Attendees

AFRINIC
Fiona Asonga, FA
Omo Oaiya, OO
Douglas Onyango, DO

APNIC
Brajesh Jain, BJ
Tomohiro Fujisaki, TF

ARIN
Kevin Blumberg, KB
Jason Schiller, JS

LACNIC
Hartmut Glaser, HG
Ricardo Patara, RP (Vice-Chair)
Jorge Villa, JV

RIPE NCC
Nurani Nimpuno, NN
Filiz Yilmaz, FY (Chair)

Secretariat
German Valdez, GV (Executive Secretary)
Susannah Gray, SG (Scribe)

Observers
Ernest Byaruhanga, EB
John Curran, JC
Nate Davis, ND
Adam Gosling, AG
Sean Hopkins, SH
Gianina Pensky, GP
Carlos Reyes, CR
Apologies
Louie Lee
Aftab Siddiqui
Wilfried Woeber

Agenda

0. Welcome
1. Roll call
2. Agenda review
3. Approval of minutes
a) 14 June 2017
b) 5 July 2017
4. Review open actions
5. CCWG-Accountability-WS2-Good Faith report
6. ICANN Board Election QRC confirmation
7. ICANN 60 Preparations
8. AOB
9. Adjourn

Minutes

0. Welcome

FY welcomed everyone to the call.

1. Roll call

GV went through the roll call and declared Quorum.

2. Agenda review

FY outlined the agenda and asked for any additions or changes. No additions were noted.

3. Approval of minutes

• Minutes Teleconference 14 June 2017:

Motion to approve by TF, seconded by KB.

No abstentions: minutes approved.

• Minutes Teleconference 5 July 2017:

Motion to approve by TF, seconded by JS.

No abstentions: minutes approved.

FY asked GV to publish both sets of minutes.

4. Review open actions

• Action item 20170705-01: BJ to review the description of the Shultz method for clarity.

BJ asked for further clarifications in case of a tie.

JS explained that a tie-breaking algorithm or random process would be needed. He noted that this random process has not yet been specified but it could be something like a coin toss that could be verified by more than one person.

FY added that the random process could be defined later to allow for some flexibility.

Action: CLOSED

• Action item 20170705-02: JC to ask legal representatives from RIPE NCC and ARIN to participate in the ICANN EC powers subgroup.

JC noted that the NRO EC had discussed this action item during its teleconference on 15 August 2017. The NRO EC agreed that the ASO AC Subgroup on ICANN Empowered Community should have access to the legal support it needs. He requested that the Subgroup send queries in question form and the NRO EC will pass them on to the RIRs’ legal teams and ensure a prompt response.

KB asked if the NRO EC would be approving the charter for the Subgroup.

JC noted that the NRO EC does not see the need to approve the charter and that it is up to the ASO AC to decide whether it wants to approve it or not.

FY noted that when the Subgroup was formed, it had a specific purpose and that it was suggested by JC that a charter be formed.

NN commented that the subgroup has drifted from its original purpose as was discussed at ICANN59 in Johannesburg, which was to ensure clearly defined roles and responsibilities and to facilitate better coordination between various groups – NRO EC, the CCWG Accountability representatives, legal teams and the ASO AC – to ensure a quick and efficient response to Empowered Community requests.

NN continued that the Subgroup was initially asked to create a charter specifying what kind of legal advice it would need but this has now changed into the ASO AC subgroup being directed to ask specific legal questions to the NRO EC/RIR legal staff. She asked for clarification from the NRO EC about this change and asked the ASO AC whether the Subgroup should continue.

BJ agreed with NN.

JC noted that the NRO EC had asked for a charter in order to understand what resources the ASO AC needed. The charter the NRO EC received did not mention the involvement of the NRO EC or the legal staff in the Subgroup. JC noted that the Subgroup as described by NN seems to have a different purpose than what is stated in the charter the NRO EC received.

KB commented that the charter has changed from the initial discussion at ICANN59 due to subsequent discussions with the Subgroup and with JC. The key point of the charter was to document what work the Subgroup was able to do and to keep it as open and transparent as possible.

KB wondered if the Subgroup should be folded if the ASO AC does not approve the Charter or whether the Subgroup should continue working on Phase 1 of the charter: Procedures for Director Removal and Board Recall.

FY (speaking as an ASO AC member) noted that the Subgroup’s remit has changed and the current charter points towards working on Procedures for Director Removal and Board Recall. The decision to initiate or support director removal or board recall is made by the NRO EC, which is the legal body in charge of exercising the enhanced community powers. She asked why the ASO AC is being asked to develop procedures when it has no responsibility and wondered why the NRO EC is not drafting these procedures instead.

JC noted that there already is a procedure in place. He explained that in the interim ASO procedures for the use of Empowered Community Powers, the NRO EC takes all the actions of the Empowered Community. This procedure calls on the NRO EC to ask the ASO AC what its recommendation is if the director to be removed was appointed by the ASO AC. JC added that it would be good for the ASO AC to have procedures on how to give advice to the NRO EC.

FY agreed and asked for further clarification on what procedures now need to be written.

JS explained that the current process to remove seats 9 or 10 on ICANN Board calls for the majority of the ASO AC to ask for a vote to consider the matter and then have a vote with at least half of the ASO AC participating and no one objecting to the removal. He noted that this is incompatible with the Empowered Community Powers and the NRO EC’s current procedure. At the very least, the ASO AC’s operational procedures should be modified so that the output is to send a recommendation to the NRO EC.

JS added that there should also be a formal process to enable any individual, as per the Empowered Community rules, to contact the ASO AC to request the removal of directors in seats 9 or 10.

FY commented that it will be difficult for the ASO AC to give its opinion to the NRO EC as per the current procedures. She noted that the ASO AC will not fully understand what is being petitioned as it is not involved in the NRO EC’s decision-making process and will therefore lack information. This could put the ASO AC in a dangerous position. She noted that, as the NRO EC is the sole decision maker, it should make the decision and, in her opinion, the ASO AC should not be provide any input.

KB noted that, based on the current procedures and on the assumption that the ASO AC needs to provide advice to the NRO EC, current procedures will not work. He explained that timelines are an issue and would need to be adjusted to meet the timelines for providing advice as noted in the ICANN Bylaws.

KB continued that he did not agree with FY that the ASO AC should not give advice to the NRO EC. He noted that the ASO AC might be in a position in the future where it wants to provide advice to the NRO EC. If there is no procedure to do so, it will not be possible for the ASO AC to give input within the timelines and it is therefore necessary to have a procedure that allows for this.

FY clarified that the ASO AC can provide advice to the NRO EC at any time it sees fit. She noted that if there is a specific procedure, there might be legal implications for the ASO AC if it gives an opinion on something that it has very limited information about and this is worrying.

JC offered further clarifications and explained that, under the Empowered Community, anyone in the ICANN community can initiate a petition for removal of a director or to spill the whole board. In cases where an ASO AC appointed director is involved, the NRO EC will ask for the ASO AC’s opinion before acting. He added that the NRO EC is obligated to respond to a petition request within the timelines outlined in the ICANN Bylaws with or without input from the ASO AC.

JC further noted that he thought that the Subgroup was going to write a procedure for this. If this is not the case, the ASO AC should provide clear details about what the Subgroup will actually be doing.

NN noted that she agreed with FY in principal but thought that the scenarios were still very abstract. She suggested that what KB and JS were trying to do is define a procedure so that the ASO AC does not find itself, in the future, unable to provide the NRO EC with a response in a timely manner. She noted that she also sympathised with KB an JS’s position as well as with FY’s stance regarding making a recommendation without sufficient information.

NN added that, if the ASO AC-appointed Board member does not perform well, they will not be appointed for a second term. As the situation is so theoretical, NN asked exactly what kind of advice would the ASO AC have to give to the NRO EC? She added that the NRO EC are the ones most affected by the behaviour of the ICANN Board and that it was fair that the NRO EC is representing the ASO AC on this matter.

NN then called on the CCWG Accountability WS2 representatives present for their opinion on this matter.

FA thought that the ASO AC might need to put a hold on the Subgroup because the work that needs to be done is not finalised yet: some of the recommendations in the CCWG WS2 document might have an impact on whatever procedures are eventually put in place.

FA continued that as the NRO EC is the legal entity for the Empowered Community, then existing procedures for ASO AC activities will need to be reconsidered. She noted that there has to be a clear understanding between the ASO AC and the NRO EC about what remains within the ASO AC mandate. If everything has moved over to the NRO EC and the ASO AC’s role is to simply provide recommendations then this will need to be resolved.

NN noted that most were in agreement with the points that FA raised. She clarified that the ASO AC must decide whether to give a recommendation to the NRO EC and, if so, how to give it.

FA responded that this is not something the CCWG representatives can give input or guidance on. It must be a discussion between the ASO AC and the NRO EC.

BJ commented that during the Subgroup meeting, the NRO EC interim procedures were discussed. He noted that, according to the procedure, the NRO secretariat must arrange a teleconference for the ASO AC three days prior to the NRO EC teleconference. The Subgroup discussed what should happen during thius meeting BJ said that there is limited information and the ASO AC must respond within seven days. BJ noted that this is the point the Subgroup is considering.

KB noted that the use of the word ‘interim’ for the procedures did not mean that the document isn’t done: the current Empowered Communities document is the one that the NRO EC is using. He notes that in this document, the ASO AC has been called out to provide advice, and it does not currently have a way of doing this.

KB continued that there are two issues: one is the issue of procedures and the other is the whether the ASO AC should actually be providing advice to the NRO EC or not. The Subgroup focused on writing procedures and did not consider anything else. He outlined the three phases of the Subgroup charter:

1. Write procedures specific to the areas specific to the ASO AC responsibilities on giving advice.
2. Make recommendations on or adjustments to these procedures.
3. Look at all of the Empowered Communities and see if there are any areas that the ASO AC should be part of.

JC clarified again that the NRO EC is happy for the ASO AC to change the interim procedures currently used by the NRO EC for the Empowered Community Powers. Procedures currently state that the NRO EC shall ask for recommendations from the ASO AC regarding whether or not to support a petition for removal of board members. JC noted that this could be changed to “the NRO EC shall refer to the ASO AC and shall only act as the ASO AC directs” in order to provide an absolute delegation.

JC explained that the reason this is not the case is that the NRO EC is legally obliged to follow the procedures adopted for Empowered Community Powers within the given timelines, which are quite short. He noted that currently, the NRO EC can respond to the petition whether the ASO AC gives a recommendation or not. If the process states that the ASO AC must give, rather than that they can give a recommendation, and the ASO AC does not come to a decision, then the NRO EC can’t fulfill its obligations.

JC further noted that he personally supported the ASO AC being able to make decisions regarding removal of Board members going forward since it is the body that appoints them. He cautioned that the ASO AC must be able to comply with any procedures that it puts in place.

FY noted that she appreciated the NRO EC’s flexibility but that it is late to make changes at this stage. She continued (speaking as a member of the ASO AC) that it had already been decided that the NRO EC is the deciding party and that the question to be answered now is whether the ASO AC wants to give its opinion or not, and if it does, then a procedure will be needed on how to do this.

JC noted that the interim procedures were written to enable a response to the first petition that was occurring a few months ago. If these had not been written, the ASO would have been unable to respond to the fundamental Bylaws changes as an Empowered Community Member. He noted that he ultimately agrees with FY: the ASO AC should consider its role in removal of directors from the ICANN Board and exercise of other powers and tell the NRO EC what it wants. Procedures can then be changed but the NRO EC needs to be able to respond and act as per the Bylaws while the ASO AC is debating what decisions need to be made.

FY noted that the ASO AC has been discussing its role for a while and that there is agreement that the NRO EC should be the responding body. She wondered whether the Subgroup should be dismantled since the discussion has now changed direction.

KB commented that the current procedures that the ASO AC has are not valid in regard to the Empowered Community. He expressed concern that, after several months, the ASO AC seems to be backtracking. The point of the Subgroup was to enable the ASO AC to work faster and more efficiently. He noted that if the ASO AC feels that it needs to refocus on other aspects then this should be discussed but that he did not agree that the ASO AC should just dismiss the Subgroup.

KB also noted that he agreed with FY’s previous comments regarding the ASO AC’s liability and stated that he also has concerns about this.

BJ noted that he agreed with KB that the ASO AC needs to have procedures. Whatever method is adopted is something that could be discussed in the Subgroup or in the ASO AC calls.

JS explained that only the Empowered Community representative can evoke an Empowered Community action and this representative is the Chair of the SO. As per the NRO MoU, the NRO acts on behalf of the ASO, meaning the NRO EC Chair is the Chair of the ASO. Based on this, the NRO EC Chair would invoke the power on behalf of ASO.
He continued that, as per NRO operating rules, the NRO EC Chair can only evoke powers if there is unanimous agreement between all five NRO EC members.

JS noted that the NRO EC wants the ASO AC’s input in the case of removal of seats 9 or 10 or a full board spillage. The ASO AC therefore needs to create procedures to do this. He added that the most critical thing to consider is timelines; the ASO AC needs to ensure it can act within the required timelines in order to provide this advice.

JS continued that the ASO AC needs to ensure that the mechanisms used meet ICANN’s requirements, one of which is that a 3/4 majority is required to move forward with a petition for removal of a director. He added that another issue that the ASO AC needed to deal with was the confusion about what 3/4 of the ASO is. He noted that it does not make sense to use 3/4 of the ASO AC or the NRO EC, as the latter only works by unanimous consent.

NN noted that perhaps ASO AC members had different expectations of what needed to be done and that there would always be coordination challenges in a volunteer group spread across many different time zones.

NN further noted that there is overall agreement that the ASO AC needs to have a procedure that corresponds to the NRO EC’s procedure, which asks for the ASO AC’s input. The question that the ASO AC needs to answer is how much of a role does the ASO AC need to play. The ASO AC’s liability also needs to be considered. She said that she would like to see a procedure that has a very clear separation of responsibilities.

KB proposed the motion to approve the Subgroup Charter as published in the AC-COORD list on 14 August 2017 in order to move ahead with phase 1.

BJ seconded the motion.

There were no objections.

FY concluded that Subgroup’s Charter was approved by the ASO AC and it is now up to the Subgroup to formulate the next steps.

KB asked the ASO AC to inform the Subgroup of any questions or concerns they may have. He added that the Subgroup would now focus on timelines and how the ASO AC can react within such rigid timelines.

FY asked KB to ensure that the Subgroup produced regular reports for the ASO AC.

KB noted that only the first few meeting minutes were published to the AC-COORD mailing list but going forward, minutes will be published after each Subgroup meeting.

FY noted that if the Subgroup needs legal advice, they should contact the NRO EC directly.

Action: CLOSED

• Action item 20170705-03: ICANN EC Powers Subgroup members to arrange to meet and establish scope within three week.

Action: CLOSED

• Action item: 20170705-04 – GV to create a timeline for the NomCom election and share it with the list. This list can be shared among the RIR communities as well.
Action: CLOSED

• Action item: 20170705-05: GV to create doodle poll to schedule a teleconference for the empowered community’s subgroup.

Action: CLOSED

• Action item 20170412-02: GV and JS to conduct another mock up election with different scenarios, for example, where there is close competition between candidates.

GV noted that this action was postponed, as he didn’t want to have two elections running in parallel. He noted that he would send this mock up to the ASO AC Chair and Vice Chairs within the coming week.

Action: OPEN

• Action Item 20170208-03: JC and NRO EC to review the issues of an editorial change to a global policy and whether such a change is within the scope of the global PDP.

JC noted that the NRO EC had discussed this. He explained that there is no separate process for making editorial changes to global policy and that the normal editorial change process, as anchored in the five RIRs’ change processes, would need to be used. If the ASO AC would like to have a global policy editorial change process, it needs to let the NRO EC know what it wants. He noted that this will be formally communicated to the ASO AC by the NRO EC shortly.

NN noted that this makes sense and that she does not believe a separate process is necessary.

KB agreed with NN and thanked JC for the clarification.

Action: CLOSED

Tabled Actions Items:

• Action item 20170503-04: Reminder for the AC to consider the status of observers for further discussion in NN’s thread. [TABLED]. “we were waiting for the ITEMS review, and because of lack of discussion. We should resolve this prior to next ASO AC face-to-face”.

• Action Item 20161012-06: FY to Prepare Discussion Points on Grey Areas of Responsibilities between the ASO AC and the NRO EC. [TABLED]

GV noted that the tabled action items remain tabled until the ASO AC decides to move forward with them.

5. CCWG-Accountability-WS2-Good Faith Report

FY noted that she had forwarded the latest communiqué about the Good Faith Report to the mailing list. She asked if there was anything in it that the ASO AC needed to respond to or whether a response should be sent thanking the CCWG WS2 team for the information.

JC noted that if the ASO AC is happy with the guidelines, then the action suggested by FY is fine. He further noted that the guidelines could be read three different ways: as applying to the recommendation vote of the ASO AC or as applying to the NRO EC’s vote to initiate a petition or not applying to either of these things. He suggested that the Subgroup could formally ask for these guidelines to be reviewed by the RIRs’ legal teams to get a better overview.

FY noted that she would respond to the requestor. She asked the Subgroup to let the ASO AC know if it saw a need to take further action on the Good Faith Guidelines and/or whether it would like to seek legal advice.

New Action Item 20170906-01 KB and ASO AC subgroup on ICANN EC. Confirm to the ASO AC if they need to take further action on the Good Faith Guidelines and/or whether it would require legal advice from the NRO EC.

New Action item 20170906-02: FY to send a response to the CCWG WS2 regarding the Good Faith Guidelines.

6. ICANN Board Election QRC Confirmation

GV noted that the ASO AC needs to confirm the members of the Qualification Review Committee (QRC) before the election process commences on 2 October 2017. The following representatives were subsequently confirmed:

• AFRINIC: Omo Oaiya
• APNIC: Tomohiro Fujisaki
• ARIN Kevin Blumberg
• LACNIC: Ricardo Patara
• RIPE: Wilfried Woeber

FY noted that the RIPE representative would serve until his term is over and a replacement would be communicated at a later date.

7. ICANN 60 Preparations

FY noted that there has been discussion about holding a face-to-face meeting among those present at ICANN 60 and confirmed that the ASO AC will not be holding any public sessions at ICANN 60.

GV noted that he would send a mail to the list to ask who will be present. He noted that the deadline for requesting meeting rooms is 15 September 2017.

New Action item 20170906-03: GV to send a mail to the ASO AC to confirm who will be attending the ICANN 60 Meeting.

8. AoB

There was no other business.

9. Adjourn

Motion to adjourn by KB.

Motion seconded by TF and FA.

Meeting adjourned 12:39 PM (UTC).