Hi Ayden,

Responding to a specific point you raised on the membership of the review team:

> On Dec 15, 2016, at 10:23 PM, Ayden Férdeline <[log in to unmask]> wrote:
> 

[SNIP]

> There is certainly value in having a Review team filled with those with a strong understanding of how policy is set within ICANN, and with a deep knowledge of the historical evolution of WHOIS policy and the operational issues which effect those tasked with implementing it. That said, I find it problematic limiting membership to those who “have either participated in, or tracked closely, the 1st Review Team’s Recommendations”, as it suggests to me that we want a similar outcome to the first review rather than a fresh pair of sufficiently-qualified eyes re-reading relevant material and drawing fact-based conclusions. This, in my opinion, is inconsistent with the idea of the Affirmation of Commitments being a framework for keeping ICANN accountable, transparent, and operating in the global public interest.

For better or for worse, it will be necessary to constitute the various upcoming review teams in accordance with the newly adopted bylaws. Check Article 4, Section 4.6 (a), which outlined the “Operating Standards” applicable to periodic reviews of ICANN structure and operations: https://www.icann.org/resources/pages/governance/bylaws-en/#article4. I’ve also pasted it below this email for easy reference.

The short version of all this is that each review team will consist of up to 21 members, with each SO/AC nominating up to 7 potential members. Additionally, each SO/AC is guaranteed a minimum of 3 of its candidates being appointed. Additionally, although membership is limited to 21, there may be an open number of observers to any of the reviews, but being an observer is not the same thing as being a participant. So observers will likely not be able to post to the review team email list or attend calls. That isn’t to say that live audio streams may not be available, and in some instances in the past, ICANN even set up an additional AC room for observers to use.

Having said all that, I agree that limiting membership to those you specified above (as was the case in earlier scoping document) may not be the best approach — although my reasons are probably not due to any perceived conflict with ICANN's accountability, transparency or any notion related to the global public interest. More practically, IMHO, there has been a considerable amount of work done on whois since the last review, and having members of the second review team who have been involved in that work may be useful.

I hope that helps.

Thanks.

Amr

From the bylaws:

>> Article 4, Section 4.6. SPECIFIC REVIEWS
>> (a) Review Teams and Reports
>> 
>> (i) Review teams will be established for each applicable review, which will include both a limited number of members and an open number of observers. The chairs of the Supporting Organizationsand Advisory Committees participating in the applicable review shall select a group of up to 21 review team members from among the prospective members nominated by the Supporting Organizations and Advisory Committees, balanced for diversity and skill. In addition, the Board may designate one Director or Liaison to serve as a member of the review team. Specific guidance on the selection process is provided within the operating standards developed for the conduct of reviews under this Section 4.6 (the "Operating Standards"). The Operating Standards shall be developed through community consultation, including public comment opportunities as necessary that comply with the designated practice for public comment periods within ICANN. The Operating Standards must be aligned with the following guidelines:
>> 
>> (A)Each Supporting Organization and Advisory Committee participating in the applicable review may nominate up to seven prospective members for the review team;
>> 
>> (B)Any Supporting Organization or Advisory Committee nominating at least one, two or three prospective review team members shall be entitled to have those one, two or three nominees selected as members to the review team, so long as the nominees meet any applicable criteria for service on the team; and
>> 
>> (C)If any Supporting Organization or Advisory Committee has not nominated at least three prospective review team members, the Chairs of the Supporting Organizations and Advisory Committees shall be responsible for the determination of whether all 21 SO/AC member seats shall be filled and, if so, how the seats should be allocated from among those nominated.
>> 
>> (ii) Members and liaisons of review teams shall disclose to ICANN and their applicable review team any conflicts of interest with a specific matter or issue under review in accordance with the most recent Board-approved practices and Operating Standards. The applicable review team may exclude from the discussion of a specific complaint or issue any member deemed by the majority of review team members to have a conflict of interest. Further details on the conflict of interest practices are included in the Operating Standards.
>> 
>> (iii) Review team decision-making practices shall be specified in the Operating Standards, with the expectation that review teams shall try to operate on a consensus basis. In the event a consensus cannot be found among the members of a review team, a majority vote of the members may be taken.
>> 
>> (iv) Review teams may also solicit and select independent experts to render advice as requested by the review team. ICANN shall pay the reasonable fees and expenses of such experts for each review contemplated by this Section 4.6 to the extent such fees and costs are consistent with the budget assigned for such review. Guidelines on how review teams are to work with and consider independent expert advice are specified in the Operating Standards.
>> 
>> (v) Each review team may recommend that the applicable type of review should no longer be conducted or should be amended.
>> 
>> (vi) Confidential Disclosure to Review Teams
>> 
>> (A) To facilitate transparency and openness regarding ICANN's deliberations and operations, the review teams, or a subset thereof, shall have access to ICANN internal information and documents pursuant to the Confidential Disclosure Framework set forth in the Operating Standards (the "Confidential Disclosure Framework"). The Confidential Disclosure Framework must be aligned with the following guidelines:
>> 
>> (1) ICANN must provide a justification for any refusal to reveal requested information. ICANN's refusal can be appealed to the Ombudsman and/or the ICANN Board for a ruling on the disclosure request.
>> 
>> (2) ICANN may designate certain documents and information as "for review team members only" or for a subset of the review team members based on conflict of interest. ICANN's designation of documents may also be appealed to the Ombudsman and/or the ICANN Board.
>> 
>> (3) ICANN may require review team members to sign a non-disclosure agreement before accessing documents.
>> 
>> (vii) Reports
>> 
>> (A) Each report of the review team shall describe the degree of consensus or agreement reached by the review team on each recommendation contained in such report. Any member of a review team not in favor of a recommendation of its review team (whether as a result of voting against a matter or objecting to the consensus position) may record a minority dissent to such recommendation, which shall be included in the report of the review team. The review team shall attempt to prioritize each of its recommendations and provide a rationale for such prioritization. 
>> 
>> (B) At least one draft report of the review team shall be posted on the Website for public review and comment. The review team must consider the public comments received in response to any posted draft report and shall amend the report as the review team deems appropriate and in the public interest before submitting its final report to the Board. The final report should include an explanation of how public comments were considered as well as a summary of changes made in response to public comments.
>> 
>> (C) Each final report of a review team shall be published for public comment in advance of the Board's consideration. Within six months of receipt of a final report, the Board shall consider such final report and the public comments on the final report, and determine whether to approve the recommendations in the final report. If the Board does not approve any or all of the recommendations, the written rationale supporting the Board's decision shall include an explanation for the decision on each recommendation that was not approved. The Board shall promptly direct implementation of the recommendations that were approved.