[CCWG-ACCT] Lawyers' Comments on CCWG Comments on Draft New ICANN Bylaws

Sun May 8 17:20:18 UTC 2016

The problem is that the premise of the edits to the comments in 2.3 is incorrect.

The implementation phase is not a time to come up with new provisions that were not in the proposals. It is the time to implement what is in the proposals. Creating new provisions and then inviting the affected parties to comment on them implies that the authority derived from the consensus that backed the proposals doesn’t exist. There was a time when the communities’ input was sought about what they needed in order to proceed with the transition — that was the proposal development phase, and that phase is over.

It is important to realize the precedent that the bylaws process is setting for the rest of the implementation phase. If the bylaws do get approved by the Board at the end of this month, it will probably be the first legal document to get finalized in the implementation phase. The SLAs with the RIRs and the IETF have not yet been agreed by the parties; the IPR commitments are in the works; the RZMA contract has yet to be published; the PTI doesn’t exist nor does the ICANN-PTI contract. So if the precedent that gets set with the bylaws is that each of these document processes opens a new opportunity to add provisions or deviate from the consensus proposals, that strikes me as a rather dangerous precedent given that what we’ve all been driving toward is finalization of everything by mid-August. I do not believe there is either the time or the will to re-open the consensus positions as established in the proposals. 

It may be that the CCWG is not highly concerned about the precedent being set for any of these other documents since its main piece of implementation work is the bylaws. But thus far I have felt that the operational communities, the ICG, and the CCWG have mutually benefited from supporting the same tenets to legitimize the processes we’ve followed. Respect for hard-fought consensus is probably the most important of those tenets. So I think it would be a shame for the CCWG to signal at this point that community consensus as reflected in the proposals is not important, and that is indeed what the edits to the comments in 2.3 signal.

Alissa  

> On May 8, 2016, at 9:16 AM, Mueller, Milton L <milton at gatech.edu> wrote:
> 
> I mostly agree with Andrew's comments, but take a slightly more moderate stance. 
> 
> Regarding the Lawyer's Comments on comment 2.2, I am gratified to see that the Lawyers have made the same point I did: [We do not understand what is meant by a new term that is “based on previously agreed language.”]
> 
> Regarding the additions to 2.3, I agree with Andrew that it is not congruent with the sense of the CCWG to ask for more input from "the groups more directly involved." Let me provide a scorecard regarding who those groups would be: 
> 
> 	B. The IETF, the ASO and the NRO. 
> 	C. ICANN and the Root Zone Maintainer, presumably Verisign
> 	D. ICANN and PTI
> 	E. ICANN 
> 
> In the case of B, these are communities independent of ICANN who are contracting with it for IANA functions. Yes, it makes sense to get input from them, but we already have input from the IETF and there is no ambiguity about their perspective. I suspect that the ASO/NRO will have a similar perspective - I don't think they will be willing to give a blanket exemption from challenges to a contract that is not signed yet. I do hope the ASO weighs in.
> 
> In the cases of C, D and E, we are dealing primarily with ICANN itself. And since the mission limitations are intended to constrain ICANN, I don't think ICANN corporate's input should be determinative. Input from Verisign would be valuable, but since as RZM Verisign will be a paid contractor of ICANN, and not the other way around, I do not understand why its views would have a special status here. 
> 
> 
> 
>> -----Original Message-----
>> From: accountability-cross-community-bounces at icann.org
>> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
>> Andrew Sullivan
>> Sent: Sunday, May 8, 2016 10:11 AM
>> To: accountability-cross-community at icann.org
>> Subject: Re: [CCWG-ACCT] Lawyers' Comments on CCWG Comments on Draft
>> New ICANN Bylaws
>> 
>> Hi,
>> 
>> I do not understand the reasons for the proposed additions to comment 2.  In
>> particular, the changes to 2.3 appear to miss the point of the WG's remarks.
>> 
>> That some as-yet unwritten document will exist in the future is completely
>> irrelevant to whether it ought to be protected from challenge under the
>> Mission.  It wouldn'r even matter if that document were only to say "A=A" (or
>> some other necessary truth).  The document is being protected from challenge
>> under the Mission, and (1) nobody knows _now_ what it will say in the future
>> and (2) it shouldn't even possibly be inconsistent with the Mission.  If it's not
>> inconsistent with the Mission, it can't be challenged effectively.  If it _is_
>> inconsistent with the Mission, it _ought_ to be subject to such a challenge
>> anyway.
>> 
>> Moreover, asking "the groups most directly involved" for their opinion is not
>> the right thing to do.  These grandfathering clauses were not in the ICG report,
>> and were not in the CCWG-Accountability report.
>> There is no basis in any request by anyone for the grandfathering in
>> subsections (B) through (E).  The lawyers were supposed to implement the
>> reports, not come up with things that people might want and implement those
>> things.  These clauses should be deleted, _point finale_, full stop, period.
>> There is no basis for them in the reports, so they're not allowed.  This isn't an
>> obscure point, and the previous justifications offered by the lawyers do not
>> address it.
>> 
>> Best regards,
>> 
>> A
>> 
>> On Sat, May 07, 2016 at 05:27:53PM +0000, Grapsas, Rebecca wrote:
>>> Holly Gregory asked that I forward the email below.  Please post to the
>> CCWG and BCG lists on her behalf.
>>> 
>>> 
>>> Dear CCWG-ACCT Co-Chairs, Members, Participants, and ICANN Staff,
>>> 
>>> Attached please find comments from Sidley and Adler on the CCWG’s
>> Comments on Draft New ICANN Bylaws (tracked changes in Word and PDF).
>>> 
>>> Please note that we have serious concerns around comments 9 and 10 and
>> believe that, as currently stated, they are based on misreadings of the draft
>> Bylaws in the relation to the CCWG Proposal.
>>> 
>>> Kind regards,
>>> 
>>> Holly and Rosemary
>>> 
>>> HOLLY J. GREGORY
>>> Partner and Co-Chair
>>> Corporate Governance & Executive Compensation Practice Group Sidley
>>> Austin LLP
>>> 787 Seventh Avenue
>>> New York, NY 10019
>>> +1 212 839 5853
>>> holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>
>>> www.sidley.com<http://www.sidley.com/>
>>> 
>>> 
>>> 
>>> 
>>> 
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>> 
>> --
>> Andrew Sullivan
>> ajs at anvilwalrusden.com
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