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| * Support and enhance the multistakeholder model; | | * Support and enhance the multistakeholder model; |
| * Maintain the security, stability, and resiliency of the Internet DNS; | | * Maintain the security, stability, and resiliency of the Internet DNS; |
| * Meet the needs and expectation of the global customers and partners of the IANA services; and | | * Meet the needs and expectations of the global customers and partners of the IANA services; and |
| * Maintain the openness of the Internet.<ref name="ntiapr" /> | | * Maintain the openness of the Internet.<ref name="ntiapr" /> |
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| ICANN initiated discussion with the community around the topic of enhancing ICANN accountability, and proposed a working group to respond to accountability issues, in May 2014. Before the CCWG was officially formed, public comment was sought on ICANN's "Enhancing ICANN Accountability" brief on its website.<ref>[https://www.icann.org/resources/pages/enhancing-accountability-2014-05-06-en ICANN.org - Enhancing ICANN Accountability], May 6, 2014</ref> A second round of public comment occurred regarding ICANN's posting on process and next steps in August 2014.<ref>[https://www.icann.org/resources/pages/process-next-steps-2014-08-14-en ICANN.org - Enhancing ICANN Accountability - Process and Next Steps], August 14, 2014</ref> In addition, the (Second Accountability and Transparency Review) presented its final report and recommendations in 2014, adding to the volume of community input and policy recommendations regarding accountability. | | ICANN initiated a discussion with the community around the topic of enhancing ICANN accountability and proposed a working group to respond to accountability issues, in May 2014. Before the CCWG was officially formed, public comment was sought on ICANN's "Enhancing ICANN Accountability" brief on its website.<ref>[https://www.icann.org/resources/pages/enhancing-accountability-2014-05-06-en ICANN.org - Enhancing ICANN Accountability], May 6, 2014</ref> A second round of public comment occurred regarding ICANN's posting on the process and next steps in August 2014.<ref>[https://www.icann.org/resources/pages/process-next-steps-2014-08-14-en ICANN.org - Enhancing ICANN Accountability - Process and Next Steps], August 14, 2014</ref> In addition, the (Second Accountability and Transparency Review) presented its final report and recommendations in 2014, adding to the volume of community input and policy recommendations regarding accountability. |
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| The CCWG-Accountability was established to develop ICANN-level accountability mechanisms to ensure that the NTIA's criteria were met, as well as to validate and strengthen ICANN's accountability to its stakeholders. As the CCWG's charter makes clear, community support for any transition proposal required improved accountability measures: | | The CCWG-Accountability was established to develop ICANN-level accountability mechanisms to ensure that the NTIA's criteria were met, as well as to validate and strengthen ICANN's accountability to its stakeholders. As the CCWG's charter makes clear, community support for any transition proposal required improved accountability measures: |
| <blockquote>During discussions around the transition process, the community raised the broader topic of the impact of the change on ICANN's accountability given its historical contractual relationship with the United States and NTIA. Accountability in this context is defined, according to the [[NETmundial]] multistakeholder statement, as the existence of mechanisms for independent checks and balances as well as for review and redress. | | <blockquote>During discussions around the transition process, the community raised the broader topic of the impact of the change on ICANN's accountability given its historical contractual relationship with the United States and NTIA. Accountability in this context is defined, according to the [[NETmundial]] multistakeholder statement, as the existence of mechanisms for independent checks and balances as well as for review and redress. |
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| The concerns raised during these discussions around the transition process indicate that the existing ICANN accountability mechanisms do not yet meet stakeholder expectations. Recent statements made by various stakeholders suggest that current accountability mechanisms need to be reviewed and, if need be, improved, amended, replaced, or supplemented with new mechanisms (see for instance ATRT recommendations) in light of the changing historic contractual relationship with the U.S. Government.Considering that the NTIA has stressed that it is expecting community consensus regarding the transition, a failure to meet stakeholder expectations with regards to accountability may create a situation where NTIA does not accept the IANA transition proposal as meeting its conditions. Thus reviewing ICANN’s accountability mechanisms was considered to be crucial for the transition process.<ref name="charter">[https://community.icann.org/display/acctcrosscomm/Charter CCWG-Accountability Workspace - Charter], last modified February 17, 2016</ref></blockquote> | | The concerns raised during these discussions around the transition process indicate that the existing ICANN accountability mechanisms do not yet meet stakeholder expectations. Recent statements made by various stakeholders suggest that current accountability mechanisms need to be reviewed and, if need be, improved, amended, replaced, or supplemented with new mechanisms (see for instance ATRT recommendations) in light of the changing historic contractual relationship with the U.S. Government. Considering that the NTIA has stressed that it is expecting community consensus regarding the transition, a failure to meet stakeholder expectations with regards to accountability may create a situation where NTIA does not accept the IANA transition proposal as meeting its conditions. Thus reviewing ICANN’s accountability mechanisms was considered to be crucial for the transition process.<ref name="charter">[https://community.icann.org/display/acctcrosscomm/Charter CCWG-Accountability Workspace - Charter], last modified February 17, 2016</ref></blockquote> |
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| The chartering organizations for the working group were the [[ALAC]], the [[ASO]], the [[ccNSO]], the [[GAC]], the [[GNSO]], and the [[SSAC]].<ref name="charter" /> | | The chartering organizations for the working group were the [[ALAC]], the [[ASO]], the [[ccNSO]], the [[GAC]], the [[GNSO]], and the [[SSAC]].<ref name="charter" /> |
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| ===Dependencies and Work Streams=== | | ===Dependencies and Work Streams=== |
| The IANA Transition was coordinated by the IANA Stewardship Transition Coordination Group (ICG), whose job was to gather, assess, and consolidate proposals from the three operational communities affected by the work performed by IANA: names, numbers, and protocols. The IETF's IANAPLAN Working Group created the protocol proposal; the Regional Internet Registries assembled the CRISP Team to draft the proposal for the numbers community, and a number of chartering organizations within the ICANN community chartered the IANA Stewardship Transition Cross Community Working Group (CWG-Stewardship) for the development of a proposal for the names community. The functions surrounding numbers and protocols were, in the eyes of the respective operating communities, comparatively straightforward, as were the requirements for oversight. In the names operational community, however, there were multiple larger issues, including ICANN's accountability to fulfill its commitments to stakeholders and the global public interest. As a result, the CWG-Stewardship's transition proposal included both accountability proposals as they related to IANA functions, and a number of dependencies upon actions or decisions of the CCWG-Accountability working group. The CCWG-Accountability charter described the interrelationship between the two working groups in this way: | | The IANA Transition was coordinated by the IANA Stewardship Transition Coordination Group (ICG), whose job was to gather, assess, and consolidate proposals from the three operational communities affected by the work performed by IANA: names, numbers, and protocols. The IETF's IANAPLAN Working Group created the protocol proposal; the Regional Internet Registries assembled the CRISP Team to draft the proposal for the numbers community, and a number of chartering organizations within the ICANN community chartered the IANA Stewardship Transition Cross Community Working Group (CWG-Stewardship) for the development of a proposal for the names community. The functions surrounding numbers and protocols were, in the eyes of the respective operating communities, comparatively straightforward, as were the requirements for oversight. In the names operational community, however, there were multiple larger issues, including ICANN's accountability to fulfill its commitments to stakeholders and the global public interest. As a result, the CWG-Stewardship's transition proposal included both accountability proposals as they related to IANA functions and a number of dependencies upon actions or decisions of the CCWG-Accountability working group. The CCWG-Accountability charter described the interrelationship between the two working groups in this way: |
| <blockquote>This process on Enhancing ICANN Accountability is taking place alongside a parallel and related process on the transition of the stewardship of the IANA functions through the CWG to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (hereinafter CWG-Stewardship). The CWG-Stewardship’s scope is focused on the arrangements required for the continuance of IANA functions in an accountable and widely accepted manner after the expiry of the IANA Functions Contract. Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship. Nevertheless, the two processes are interrelated and interdependent and should appropriately coordinate their work.<ref name="charter" /></blockquote> | | <blockquote>This process on Enhancing ICANN Accountability is taking place alongside a parallel and related process on the transition of the stewardship of the IANA functions through the CWG to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (hereinafter CWG-Stewardship). The CWG-Stewardship’s scope is focused on the arrangements required for the continuance of IANA functions in an accountable and widely accepted manner after the expiry of the IANA Functions Contract. Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship. Nevertheless, the two processes are interrelated and interdependent and should appropriately coordinate their work.<ref name="charter" /></blockquote> |
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| ==Work Stream 1== | | ==Work Stream 1== |
| Work Stream 1 (WS1) held its first meeting in December 2014.<ref name="ws1mtgs">[https://community.icann.org/display/acctcrosscomm/Meetings CCWG-Accountability Work Stream 1 Workspace - Meetings Archive]</ref> The group had a distinction between ''members'' and ''participants.'' All members were participants, but not all participants were members. The ''members'' of WS1 were appointed from the working group's chartering organizations: | | :''main article: [[CCWG-Accountability Work Stream 1]]'' |
| | Work Stream 1 (CCWG-Accountability WS1) was a process for [[ICANN]] to facilitate a smooth and swift transition of the IANA functions stewardship. The [[CCWG-Accountability]] divided work into two streams. WS1 addressed accountability issues prior to the transition of the IANA stewardship from NTIA to the global multistakeholder community. Work Stream 1 held its first meeting in December 2014.<ref name="ws1mtgs">[https://community.icann.org/display/acctcrosscomm/Meetings CCWG-Accountability Work Stream 1 Workspace - Meetings Archive]</ref> |
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| '''ALAC'''<br />
| | ==Work Stream 2== |
| '''[[Leon Sanchez]] (Latin America) – Co-Chair'''<br />
| | :''main article: [[CCWG-Accountability Work Stream 2]]'' |
| [[Sebastien Bachollet]] (Europe)<br />
| | Work Stream 2 focuses on mechanisms that could be implemented after the completion of the [[IANA Functions Stewardship Transition]] and began in 2016.<ref>[https://www.icann.org/en/blogs/details/update-on-icann-work-stream-2-implementation-02-05-2022-en Update on ICANN Work Stream 2 Implementation, End of 2022 Q1, ICANN Blogs]</ref> |
| [[Tijani Ben Jemaa]] (Africa)<br />
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| [[Alan Greenberg]] (North America)<br />
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| [[Cheryl Langdon-Orr]] (Asia/Asia Pacific)<br />
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| '''ASO'''<br />
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| [[Fiona Asonga]] <br />
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| [[Athina Fragkouli]] <br />
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| [[Izumi Okutani]] <br />
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| [[Jorge Villa]]<br />
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| '''ccNSO'''<br />
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| '''[[Mathieu Weill]] (.FR, European Region) – Co-Chair'''<br />
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| [[Jordan Carter]] (.NZ, AP Region)<br />
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| [[Eberhard Lisse]] (.NA, African Region)<br />
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| [[Roelof Meijer]] (.NL, European Region)<br />
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| [[Giovanni Seppia]] (.EU, European Region)<br />
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| '''GAC'''<br />
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| [[Par Brumark]] (Niue)<br />
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| [[Olga Cavalli]] (Agentina)<br />
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| [[Alice Munyua]] (African Union Commission) <br />
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| [[Suzanne Radell]] (USA)<br />
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| [[Julia Wolman]] (Denmark)<br />
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| '''GNSO'''<br />
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| '''[[Thomas Rickert]] (GNSO Council, Europe Region) – Co-Chair'''<br />
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| [[James Bladel]] (RrSG, North America Region)<br />
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| [[Becky Burr]] (RySG, North America Region)<br />
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| [[Steve DelBianco]] (CSG, North America Region)<br />
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| [[Robin Gross]] (NCSG, North America Region)<br />
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| '''SSAC'''<br />
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| [[Lyman Chapin]]<br />
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| [[Julie Hammer]]<br />
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| '''Others'''<br />
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| [[Bruce Tonkin]] - ICANN Board Liaison<br />
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| [[Samantha Eisner]] - ICANN Staff Representative<ref name="ws1members">[https://community.icann.org/pages/viewpage.action?pageId=50823968 CCWG-Accountability Work Stream 1 Workspace - Members & Participants], last updated May 31, 2017</ref>
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| ''Participants'' were defined as anyone with an interest in the work of the CCWG-Accountability:
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| <blockquote>Anyone interested can volunteer to join the CCWG as a "participant," regardless of whether they are members of the ICANN community. Participants are expected to actively contribute to mailing list conversations as well as meetings. It is anticipated that participants will provide essential input to the process. They will participate similarly to ICANN chartering organization-appointed members and will be required to provide a Statement of Interest (SOI).<ref name="ws1members" /></blockquote>
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| 199 individuals submitted SOIs as participants. The distinction between appointed members and participants was a source of contention on a few occasions, including the submission of minority statements to CCWG drafts. Faced with a number of issues to address, the WS1 team divided into several work parties: legal, [[IRP]] implementation oversight, community empowerment, review & redress, emerging issues, and stress testing. Each group addressed facets of the identified work areas for the CCWG-Accountability project as a whole. During the course of its work, it became apparent that a work party should also be devoted to human rights issues.
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| Work Stream 1 drafts, meetings, work party activities, and other information can be found in their [https://community.icann.org/display/acctcrosscomm workspace archive].
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| ==WS 1 Drafts and Public Comments==
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| The first draft of the WS 1 Report was published for public comment in May 2015.<ref>[https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-2015-05-04-en ICANN.org Archive - Public Comment Proceeding, CCWG-Accountability Draft Proposal], May 4 - June 29, 2015</ref> The draft emphasized that the proposals were not the result of consensus; rather, they were a snapshot of the working group's thinking to date. The proposal sought community feedback on the direction of Work Stream 1, as well as ideas or suggestions that may not have been covered.<ref name="ws1draft1" /> The draft proposal contained the following principal recommendations:
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| * Revise the Mission, Core Values, and Commitments sections of the Bylaws;
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| * Designate certain Bylaws as "Fundamental" and require a 75% supermajority to change those Bylaws;
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| * Improvements the Independent Review Panel process;
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| * Improvements to the reconsideration process;
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| * Create a mechanism (using an SO/AC "membership" model) to empower the ICANN community, and imbue the community with the power to:
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| ** reconsider/reject budget or strategy/operating plans;
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| ** reconsider/reject changes to non-Fundamental Bylaws;
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| ** approve changes to Fundamental Bylaws;
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| ** recall individual ICANN directors; and
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| ** recall the entire ICANN Board;
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| * Incorporate the commitments contained in the [[Affirmation of Commitments]] into the ICANN Bylaws; and
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| * Revise the Bylaws to ameliorate problems discovered via stress testing (specifically, require the Board to respond to Advisory Committee advice, and to consult with the GAC and find mutually acceptable solutions for consensus-based GAC advice).<ref name="ws1draft1">[https://community.icann.org/download/attachments/49348770/CCWG-Draft-Proposal-clean.pdf CCWG-Accountability Work Stream 1 Workspace - Draft Proposal 1], May 4, 2015</ref> The draft proposal sought responses to specific aspects of the proposal, as well as general comments and feedback regarding the direction of the working group's efforts and work product to date.<ref name="ws1draft1" />
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| ===Empowered Community: Mechanisms===
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| The question of exactly how to empower the community to support and enforce ICANN's mission and core values was a subject of discussion during the creation of the first draft. In the lead-up to [[ICANN 52]] in Singapore, Work Party 1 had generated a number of model mechanisms for consideration:
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| * A "community veto" utilizing the existing SO/AC structures, as proposed by [[Robin Gross]] in a [https://circleid.com/posts/20150203_proposal_for_creation_of_community_veto_for_key_icann_decisions post on CircleID].<ref name="commveto">Robin Gross on [https://circleid.com/posts/20150203_proposal_for_creation_of_community_veto_for_key_icann_decisions CircleID - "A Proposal for Creation of 'Community Veto' Process on ICANN Board's Key Decisions"], February 3, 2015</ref> The proposal suggested that an "empowered community" could be established by leveraging each of the existing SO and AC decision-making procedures, allowing those organizations to collect a vote of its membership and cast an organizational vote accordingly, with the majority of SOs and ACs required to overturn a board decision, recall a member, and other enumerated powers.<ref name="commveto" />
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| * A permanent cross community working group, with elected or appointed members from each SO and AC, "that stands ready to vote on challenges or initiatives filed by any AC/SO/SG."
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| * Appointed delegates: under the laws of California governing nonprofit organizations, a corporation may provide in its bylaws for delegates having some or all of the authority of members (as defined by statute) without actually having named members (or being a "membership" non-profit organization as defined). The delegates would act as a council similar to the permanent CCWG.
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| * Amendment of the ICANN Bylaws to name each SO, AC, and SG as a "member" of the corporation (as defined by California statute), which would, among other things, permit stakeholders to file member derivative lawsuits against ICANN for decisions made in contravention of its core mission or values. Grant members, through consensus or some specific majority, powers to veto certain board decisions or actions, recall board members, or contest policy.
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| * Create a two-tiered board structure where the ICANN community's representatives sit as a Supervisory Board and have specific powers of review or recall, and the ICANN Board as currently composed maintains its role of strategic and fiscal governance.<ref>[https://community.icann.org/display/acctcrosscomm/WP1+Draft+Documents?preview=/52888421/53281113/CCWG-ACCT%20-%20WP1%20-%20Scope%20Measures%20Mechanisms%20-%20draft2.pdf CCWG-Accountability Work Stream 1 Workspace - Scope, Powers, and Mechanism Working Paper], Work Party 1 (Community Empowerment), Feb. 3, 2015</ref>
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| In addition, outside legal counsel for the working group provided another option based on the California corporations code. Section 5220 of the code provides for designated board seats, to be selected by one or more "designators."<ref name="ccc5220">[https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5220&lawCode=CORP California Corporations Code, Section 5220], as amended January 2019</ref> Directors can be seated on the board by a designator without a vote of the members.<ref name="ccc5220" /> Outside counsel noted, however, that the designator model would not be able to fulfill all the goals of the empowered community outlined by Work party 1.<ref>[https://community.icann.org/display/acctcrosscomm/WP1+Draft+Documents?preview=/52888421/53283081/WP1-%20Cover%20Memo%20(CCWG%20Powers).pdf CCWG-Accountability Workspace - Sidley Austin memo re: community powers], April 16, 2015</ref> The first draft proposal focused on a "Reference Mechanism" based on the membership model when presenting its plan for the ICANN empowered community.<ref name="ws1draft1" /> It acknowledged and briefly discussed each of the other models, as well as a proposal from outside legal counsel regarding the creation of designated board seats, with SOs and ACs appointed as "designators" for those seats.<ref name="ws1draft1" /> After its discussion of the options, the report provided the following conclusion:
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| <blockquote>None of the mechanism possibilities should be considered “off the table”. The work of the CCWG-Accountability has proceeded quickly, and our counsel are rapidly becoming familiar with the complexities of ICANN’s history and current approach to dealing with many of these matters.<br />
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| That said, the CCWG-Accountability is clearly of the view that the SO/AC Membership Model is the currently preferred approach, and relies on this in much of what follows.<br />
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| How the Reference Mechanism operates (e.g., whether the votes are “cast” by the SOs and ACs as organized through a Membership model, whether there is some community group where there are representatives, how the community’s decisions are implemented through those SOs and ACs that are Members, and/or model rules for the unincorporated associations) is an important implementation detail that will be developed by the CCWG-Accountability and open for thorough community consultation in our second Public Comment report.<ref name="ws1draft1" /></blockquote>
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| ===Public Comment on the First Draft===
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| Public comment on the draft was substantial.<ref name="ws1d1pc">[https://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/ ICANN.org Listserv Archive - Public Comment, CCWG-Accountability Draft Proposal], May 4 - June 23, 2015</ref> The time period for comment was extended to accommodate for delays in delivering translations of the draft proposal.<ref>[https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-2015-05-04-en ICANN.org Public Comment Archive - CCWG-Accountability Draft Proposal]</ref> The comments were largely supportive of the direction the CCWG was taking, although there were concerns raised regarding certain aspects of the draft, as well as new ideas and input that the working group had not yet considered in the course of its work to date. Some commenters did disagree with specific portions of the proposal, although it was notable that those dissenting voices were in the minority in each issue area.<ref>[https://community.icann.org/display/acctcrosscomm/First+Public+Comment+Review+Tool+-+comprehensive+version+-+18+August+2015 CCWG-Accountability Work Stream 1 Workspace - Public Comment Review Tool, Draft Proposal], last modified August 20, 2015</ref> The ICANN board's comment applauded the broad themes of the document, but had many questions and concerns about implementation:
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| <blockquote>One of the analyses that we do not see within the report is a something akin to a regulatory impact analysis, where the costs, benefits and alternatives to proposals are weighed to assure that the design of the solution for each issue is the most efficient, least burdensome on the community, and most cost-effective solution. This seems a separate exercise from the stress test work that is reflected in the report. That stress test, or contingency planning, work builds from the identification of stressors or situations that ICANN may face, and then considers how the proposed solutions assist ICANN in being more accountable when those situations arise, however unlikely. This is valuable work in considering that the CCWG-Accountability is working towards the crucial issues. What seems to be the necessary next step, however, is considering whether the mechanisms that are proposed as solutions are themselves capable of withstanding contingencies and stressors. In this regard, the Board presumes there will be an impact analysis. It is currently working on a series of questions to assist in performing that impact analysis.<ref name="draft1board">[https://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/pdfnzvFMc9grs.pdf ICANN Board Comments - CCWG-Accountability], June 2, 2015</ref></blockquote>
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| The board went on to highlight the report's Reference Mechanism for the empowered community, expressing doubts that such a radical change would have only the intended consequences, and advocating for a comprehensive review of the risks associated with such a change.<ref name="draft1board" />
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| ===ICANN 53===
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| The public comment period on the first draft proposal closed a week before [[ICANN 53]] in Buenos Aires. Much of the programming at the meeting was directed at the IANA transition. At its first work session at ICANN 53, the CCWG discussed the promised impact analysis questions that were received from the board the night before.<ref>[https://mm.icann.org/pipermail/accountability-cross-community/2015-June/003437.html ICANN.org Listserv Archive - Bruce Tonkin to CCWG-Accountability], June 19, 2015</ref> During the lead-up to the conference, the CCWG-Accountability listserv had grown increasingly contentious around issues of accountability and the ICANN Board's self-interests in responding to the first draft. [[Steve Crocker]] stepped into one such conversation and made some remarks regarding what he perceived as misplaced animosity toward the board.<ref>[https://mm.icann.org/pipermail/accountability-cross-community/2015-May/003186.html ICANN Listserv Archive - Steve Crocker to CCWG-Accountability], May 30, 2015</ref> At the beginning of June, [[Jonathan Zuck]] pleaded for a level-headed, task-oriented approach to continuing the work of the working group.<ref>[https://mm.icann.org/pipermail/accountability-cross-community/2015-June/003188.html ICANN Listserv Archive - Jonathan Zuck to CCWG-Accountability], June 1, 2015</ref> The temperature was not exactly lowered during the first work session at the conference. There were exasperated exchanges around the impact analysis questions posed by the board.<ref name="53ws1ts">[https://archive.icann.org/meetings/buenosaires2015/en/schedule/fri-ccwg-accountability/transcript-ccwg-accountability-1-19jun15-en.html ICANN 53 Archive - Transcript, CCWG Accountability Work Session 1], June 19, 2015</ref> One outcome of the first working session was the abandonment of the "membership" reference model.<ref name="53ws1ts" /> The working group drafted language for its report to the community in the aftermath of the meeting to that effect.<ref>[https://www.icann.org/en/announcements/details/statement-from-the-ccwg-accountability-after-face-to-face-meeting-in-buenos-aires-20-6-2015-en ICANN.org Announcement - Statement from the CCWG-Accountability After Face-to-Face Meeting in Buenos Aires], June 20, 2015</ref>
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| Also during the lead-up to the main meeting content, the CCWG met with the ICANN Board to discuss their draft proposal.<ref>[https://archive.icann.org/meetings/buenosaires2015/en/schedule/sun-board-ccwg-accountability.html ICANN 53 Archive - CCWG-Accountability Meeting with the ICANN Board], June 21, 2015</ref> The conversation addressed the board's public comments on the draft report, the questions that were subsequently submitted by the board as part of their proposed impact analysis, and the CCWG's internal conversations regarding the comments.<ref name="53boardccwg">[https://archive.icann.org/meetings/buenosaires2015/en/schedule/sun-board-ccwg-accountability/transcript-board-ccwg-accountability-21jun15-en.html ICANN 53 Archive - Transcript, CCWG-Accountability Meeting with the ICANN Board], June 21, 2015</ref> Thomas Rickert also reported that, after the team's working session on the previous Friday, the Reference Mechanism membership model had been scrapped:
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| <blockquote>So what we did last Friday was sit together and there were multiple opportunities options on the table on how we could move forward. All those individuals in our group that wanted to present their vision of how we could operationalize accountability [got] their time slot to briefly be as persuasive as they could in terms of what they would like us to do.<br />
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| So everybody was heard, no interruptions, no criticism. They would talk one after the other and could do their sales pitch, basically; or elevator pitch or whatever you might call it. After that we said, okay, there’s a lot of common ground in this. Let’s revisit our list of requirements for an accountability architecture and see whether this still stands after the public comment period has been conducted. We found out that there were some points that we could clearly rule out, some options that we could clearly rule out. So this reference model is off the table. We’re not doing it. We’ve listened to you. We’ve read the comments that we got. It’s off the table. Forget about it. So we’ve now entered our discussions into a new phase where we had other models and we’re now in the process of merging the other options and take the best of our words, if you wish.<ref name="53boardccwg" /></blockquote>
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| Also at ICANN 53, the CWG-Stewardship and CCWG-Accountability held a joint town hall on June 22, 2015 to provide updates to and receive input from the community.<ref>[https://archive.icann.org/meetings/buenosaires2015/en/schedule/mon-cwg-stewardship-ccwg-accountability.html ICANN 53 Archive - CWG-Stewardship and CCWG-Accountability Joint Town Hall], June 22, 2015</ref> Questions about the membership model were raised, as well as other aspects of the draft proposal.<ref>[https://archive.icann.org/meetings/buenosaires2015/en/schedule/mon-cwg-stewardship-ccwg-accountability/presentation-joint-townhall-22jun15-en.html ICANN 53 Archive - Transcript, CWG-Stewardship & CCWG-Accountability Joint Town Hall], June 22, 2015</ref>
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| ===Paris Meeting of the CCWG===
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| The CCWG met in Paris in July 2015 to resolve and refine issues identified at ICANN 53 and the public comment period.<ref>[https://community.icann.org/pages/viewpage.action?pageId=53778863 CCWG-Accountability Work Stream 1 Workspace - CCWG-Accountability in Paris], July 17-18, 2015</ref> Over two days, many topics were discussed regarding the response to the first draft proposal.<ref>[https://community.icann.org/pages/viewpage.action?pageId=54690689 CCWG-Accountability Work Stream 1 Workspace - Paris Face-to-Face Meeting Agenda], July 17-18, 2015</ref>
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| ===Second Draft Proposal===
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| Work Stream 1's second draft proposal was published in August 2015.<ref name="ws1draft2">[https://www.icann.org/en/system/files/files/ccwg-draft-2-proposal-work-stream-1-recs-03aug15-en.pdf ICANN.org Archive - CCWG-Accountability WS1 Second Draft Proposal], August 2, 2015</ref><ref name="ws1d2pc" /> The second draft acknowledged community support for the building blocks of the WS 1 proposals - principles (commitments and core values), empowered community, structure and accountability of the ICANN Board of Directors, and independent appeals and review mechanisms. The proposed improvements and changes were structured along these building blocks.<ref name="ws1draft2" />
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| {| class="wikitable"
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| |-
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| ! Proposal<br />
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| ! Associated Building Blocks
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| ! Changes from First Draft Proposal
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| | Amendments to ICANN Bylaws<br />
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| | Principles; ICANN Board
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| | Minimal - still focused on incorporating [[Affirmation of Commitments]] into bylaws and other amendments to accommodate other proposals and reforms. "Fundamental" Bylaws proposal still intact.<br />
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| |-
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| | Empowered Community: Powers
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| | Empowered Community
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| | Community can reject operating plan and budget (strategic plan no longer included); refinement on recall of individual directors (appointing body may recall their director)
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| |-
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| | Empowered Community: Mechanism<br />
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| | Empowered Community
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| | New model, still focused on a "membership" nonprofit organization but with a single member, the ICANN community, rather than SO/AC/SGs as members;
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| | Reforms to IRP and Reconsideration Process
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| | Independent Appeals/Review
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| | Minimal
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| |-
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| | Work Steam 2 Elements
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| | All
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| | Added some topics for consideration for WS 2 post-IANA transition
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| |}
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| The second draft described 37 scenarios that were utilized for stress testing the proposals in the draft, both as they related to accountability mechanisms, and to the NTIA criteria for the ICG's transition proposal.<ref name="ws1draft2" />
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| ====Revised Model for the Empowered Community====
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| In its deliberations around the EC model, Work Party 1 devised another membership-based structural change to ICANN's organization and bylaws. In the new reference model, the empowered community would be represented by a single entity (the "Community Mechanism") that was a member of ICANN org. ICANN's bylaws would be amended to allow for members, and to describe and define the Community Mechanism's powers and processes.<ref name="ws1draft2" /> As the draft proposal explains:
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| <blockquote>As required by law, the Sole Member in the Community Mechanism as Sole Member Model would be a legal person created through the ICANN Bylaws as an unincorporated association. The Community Mechanism as Sole Member Model would rely on direct participation by SOs and ACs in this sole member for exercise of community powers but would not require any of them to have legal personhood. The Sole Member would have no officers or directors and no assets.<br />
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| ICANN’s SOs and ACs would participate in this Sole Member. Participating in the Sole Member would allow the participating SOs and ACs, as a group, to provide instructions to the Sole Member to use its member powers to exercise the community powers only as directed by the SOs and ACs (for example, to approve change to the Fundamental Bylaws). Participating SOs and ACs would not meet as the Member, and no representatives would cast votes. The directions for voting would come from the SOs and ACs themselves. No SO or AC, or any individual, has to 'join' ICANN or the Sole Member in order to exercise their rights, and no new legal obligations arise for any stakeholder.<ref name="ws1draft2" /></blockquote>
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| This model was adopted after deliberation and discussion of three different options: an "empowered SO/AC" membership model, which modified the first draft's membership model to allow direct participation of SOs and ACs in the exercise of community powers, but which would not require SOs and ACs to incorporate or use some other means of obtaining legal status as entities; the "designator" model proposed by outside counsel (described above); and the Community Mechanism as Sole Member model. The Community Mechanism was selected as the new reference mechanism because it ensured that the community's powers would have a statutory basis for enforcement, while avoiding some of the complications intrinsic to the initial draft's membership model.<ref name="ws1draft2" />
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| The proposed Community Mechanism would have a voting structure that granted five votes to each of the ALAC, ASO, ccNSO, GAC, and GNSO, and two votes apiece to the RSSAC and SSAC. The proposal acknowledged that some of the ACs had already indicated that they would not participate in such a mechanism, but suggested including the full participant list in the bylaws. Under the mechanism, none of community powers could be exercised until there was an opportunity for the full community to engage in a discussion regarding the issue. The draft proposal stated that this was in part to ensure that all members of the community could make an informed decision.<ref name="ws1draft2" />
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| ====Minority Statements & Dissents====
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| The second draft report included minority statements from both members and participants. Three minority statements were received. [[Sebastian Bachollet]]'s objections were almost entirely focused on the proposed community powers. In his opinion, all of the enumerated powers introduced more and more substantial risks to ICANN's governance than they provided certainty and accountability. [[Edward Morris]] had objections to the Community Mechanism's proposed voting and decision-making model. [[Eberhard Lisse]] had a variety of objections to both the direction and the processes employed by the working group, and urged his fellow ccTLD managers and the NTIA to reject the proposal as drafted.<ref name="ws1draft2" />
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| The proposal also noted "dissenting opinions" within each section of the draft, allowing individuals to state differences of opinion on particular issues or details of the proposal.
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| ====Public Comment====
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| Many public comments were received regarding the second draft proposal.<ref>[https://www.icann.org/public-comments/ccwg-accountability-2015-08-03-en ICANN.org Public Comment Archive - CCWG-Accountability Second Draft Proposal]</ref><ref name="ws1d2pc">[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/index.html ICANN.org Listserv Archive - Public Comments on CCWG-Accountability's Second Draft Proposal]</ref> The ICANN Board submitted two comments: an initial comment providing initial reactions and describing the board's intended process of review;<ref>[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00006.html ICANN.org Listserv Archive - Submission on Behalf of the ICANN Board], August 21, 2015</ref> and then "final and supplemental comments"<ref>[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00045.html ICANN.org Listserv Archive - ICANN Board Submission of Final and Supplementary Comments], September 11, 2015</ref> that included a summary chart of board responses to the CCWG-Accountability proposals,<ref>[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfjEvds8QWke.pdf CCWG-Accountability Draft 2 - Board Comments Matrix and Notes on Proposed Elements], September 11, 2015</ref> an memo describing an alternative empowered community mechanism called the "Multistakeholder Enforcement Mechanism,"<ref>[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfrqjmsiI7VM.pdf CCWG-Accountability Draft 2 - Board Memo on Proposed Approach for Community Enforceability], September 11, 2015</ref> a FAQ regarding the MEM,<ref>[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfWioCio9t5O.pdf CCWG-Accountability Draft 2 - FAQ Regarding the Board's Proposed Approach for Community Enforceability], September 11, 2015</ref> and a written summary of the board's input.<ref>[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfvJv50Ep7dU.pdf CCWG-Accountability Draft 2 - Summary of Board Input], September 11, 2015</ref> Most of the board's comments agreed with the CCWG-Accountability proposals or agreed in principle with proposed modifications. However, the board did not agree with the proposed Community Mechanism in the second draft proposal. The board also submitted a memo from law firm Jones Day<ref name="jonesday">[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdf6XLSDNuLUM.pdf CCWG-Accountability Draft 2 - Jones Day Impact Analysis], August 27, 2015</ref> that provided an impact analysis on the proposals contained in the second draft report.<ref>[https://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00007.html ICANN.org Listserv Archive - ICANN Board Submission of Jones Day Impact Analysis Regarding CCWG-Accountability Second Draft Proposal], August 27, 2015</ref> The Jones Day analysis raised several issues that had the potential to destabilize the governance of ICANN, including the apparent lack of interest in participating in the Community Mechanism decision process.<ref name="jonesday" /> In its impact analysis, Jones Day suggested that the regulatory and legal consequences of the model had not been fully explored:
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| <blockquote>It does not appear that the CCWG has conducted a comprehensive regulatory impact analysis, as suggested by the Board, which would be helpful in identifying and mitigating potential unintended consequences and risks of capture. The move to a membership model is a significant governance shift that should be approached carefully and pursued only when the details of the model are fully defined, completed and tested.<br />
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| California law provides the Sole Member with significant statutory rights. These rights include, among other things, (1) the right to amend the Bylaws without Board approval, (2) the ability to initiate litigation against ICANN and the Board, and (3) the ability to remove directors without cause. In many cases, it is unclear whether ICANN could enforce provisions of the Bylaws that attempt to waive or modify many of the Sole Member’s statutory rights. A review of the revised Bylaws implementing the Proposal will be needed to fully assess this item.<ref name="jonesday" /></blockquote>
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| The implications of the shift, Jones Day opined, were magnified by the inexperience of the ICANN board, org, and community in managing a membership non-profit model. Without such experience, substantial and comprehensive testing was recommended to ensure that the Community Mechanism would work as intended. The analysis also recommended that the rules of procedure for the Community Mechanism should be fully defined, and that such work should be a Work Stream 1 task to ensure that the community had an opportunity to review and comment on the proposed rules of procedure. Again, because it did not appear that all SOs and ACs would exercise voting rights in the Community Mechanism as proposed, the establishment of explicit rules prior to adoption presented an opportunity to risk-proof the Community Mechanism from capture and avoid the disenfranchisement of non-participating SOs and ACs.<ref name="jonesday" />
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| The board's response, and subsequent discussions, caused some concern among the members of the IANA Functions Stewardship Transition Coordination Group, who feared that substantial differences of opinion on a fundamental element of the accountability proposals could delay or even halt progress on the development of a transition proposal.<ref>[https://www.icann.org/en/system/files/files/transcript-icg-08oct15-en.pdf ICG Meeting Archive - Transcript, ICG Call #24], October 8, 2015</ref>
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| ===ICANN 54===
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| At [[ICANN 54]] in Dublin, the CCWG-Accountability group met with a variety of stakeholder groups, as well as holding a public engagement session and open work sessions.<ref>[https://community.icann.org/pages/viewpage.action?pageId=56134263 CCWG-Accountability WS 1 Workspace - ICANN 54 Dublin meetings], last modified October 21, 2015</ref> The first meeting, held in the lead-up to the main programming of the conference, focused on the feedback received from the public comment period on the group's second draft proposal.<ref name="54f2f">[https://meetings.icann.org/en/dublin54/schedule/fri-ccwg-accountability ICANN 54 Archive - CCWG-Accountability Face to Face Meeting], October 16, 2015</ref>
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| The working group's public engagement session was held on October 19, 2015.<ref>[https://community.icann.org/pages/viewpage.action?pageId=56143659 CCWG-Accountability WS 1 Workspace - Engagement Session, ICANN 54], October 19, 2015</ref> Working group chair Leon Sanchez updated the audience on the status of the working group's progress after the comments on the second draft:
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| <blockquote>We then published our second draft document, we held a second public comment period, and as I speak, we have concluded the comments analysis phase and we are ready to adjust or tweak our proposal so that it is in line with requests and concerns raised by different members of the community.<ref name="54engage">[https://community.icann.org/download/attachments/56143659/transcript-enhancing-accountability-19oct15-en.pdf ICANN 54 Archive - Transcript, CCWG-Accountability Engagement Session], October 19, 2021</ref></blockquote>
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| ===Third Draft===
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| ==References== | | ==References== |
