[bylaws-coord] Amendments to Articles of Incorporation

[Mueller, Milton L]

Let me echo Andrew's concerns here and broaden them. It seems that the proposed Article 2 (i) - (iv) are still premised on the assumption that ICANN is the sole IANA functions operator rather than an entity that happens to have been selected to do them for three independent communities. This needs to be changed quite significantly to be consistent with the new mission statement.

The three functions that ICANN will always do are:
(i) coordinate global policies related to the Internet Protocol ("IP") address space;
(ii) develop policies for DNS (phrasing here should be drawn from the new mission statement)
(iii) overseeing operation of the authoritative Internet DNS root server system

That's all. I don't think you need the protocol parameter statement at all. Insofar as it does anything related to protocol parameters, ICANN is merely a contractor of IETF and this is not an inherent function of the corporation. 

Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology

> -----Original Message-----
> From: bylaws-coord-bounces at icann.org [mailto:bylaws-coord-
> bounces at icann.org] On Behalf Of Andrew Sullivan via bylaws-coord
> Sent: Friday, April 1, 2016 8:28 AM
> To: bylaws-coord at icann.org
> Subject: Re: [bylaws-coord] Amendments to Articles of Incorporation
> 
> Hi,
> 
> If there is a consistency problem with the Mission statement and it needs to
> be resolved, then I believe this text will need to change:
> 
>     (i) coordinating the assignment of Internet technical parameters
>     as needed to maintain universal connectivity on the Internet;
> 
> I think we have already agreed -- certainly, the CCWG's proposal says
> -- that ICANN does not "coordinate" this function.  It publishes the registries.
> The text in the CCWG proposal is in Recommendation 5, ¶44, number 4:
> 
>     Collaborates with other bodies as appropriate to publish core
>     registries needed for the functioning of the Internet. In this
>     role, with respect to protocol ports and parameters, ICANN's scope
>     is to provide registration services and open access for registries
>     in the public domain requested by Internet protocol development
>     organizations.
> 
> I am not totally convinced that the other descriptions in the Articles are
> perfectly consistent with the CCWG Recommendation 5, either.
> 
> Because of past sins, I didn't become a lawyer, and therefore I am unsure
> whether it would be a problem were the Mission to be more tightly
> circumscribed than the Articles of Incorporation would permit.
> In my lay understanding, the Articles set a legal outer bound on what the
> bylaws could possibly do, but do not require the corporation to undertake
> everything that could possibly fall under the Articles'
> description.  If that's right, then the apparent inconsistency may not be a
> problem, because in my reading the text in question in the Articiles is broader
> than the Mission is supposed to be.
> 
> Best regards,
> 
> A
> 
> On Fri, Apr 01, 2016 at 07:49:10AM +0000, Rosemary E. Fei via bylaws-coord
> wrote:
> > Dear Sam:
> >
> > I attach an update version of proposed edits to the Articles of Incorporation
> of ICANN.  The version attached:
> >
> >
> > *        Implements the four numbered changes recommended in our email of
> March 12 below; and
> >
> >
> >
> > *        Inserts a specific reference to Article 24.2 of the ICANN Bylaws for
> procedures for the Empowered Community to approve either an Articles
> amendment or the sale of substantially all of ICANN's assets.
> >
> > Please note that we would like ICANN Legal's attention to the highlighted
> description of ICANN's Mission.  Due to the technical terminology used here,
> we prefer that you review the highlighted text and suggest edits to ensure that
> the new Bylaws provisions found in Article 1 will be fully covered by and
> consistent with the purpose description in the Articles; if any changes are
> required, then, as noted below, the Articles language should be changed.
> >
> > I attach a clean version, but despite my earnest efforts, I don't seem to be
> able to produce a version redlined to the current ICANN Articles right now, so
> we will have to send you that tomorrow.  If you would find it helpful to have a
> redline showing changes from the March 12 version attached to my email
> below, we can provide that tomorrow as well.
> >
> > Rosemary
> > Please be aware that this email is intended to provide a short response to
> the questions posed, without the benefit of legal research.  If you would like a
> more thoroughly considered and researched response, please let us know.
> > Rosemary E. Fei
> > Adler & Colvin
> > 235 Montgomery Street, Suite 1220
> > San Francisco, CA 94104
> > 415/421-7555 (phone)
> > 415/421-0712 (fax)
> > rfei at adlercolvin.com
> > www.adlercolvin.com
> >
> >
> >
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> > From: Rosemary E. Fei
> > Sent: Saturday, March 12, 2016 5:39 PM
> > To: bylaws-coord at icann.org
> > Cc: ICANN-Adler; Sidley ICANN CCWG (sidleyicannccwg at sidley.com)
> > Subject: Amendments to Articles of Incorporation
> >
> > Dear John and Sam:
> >
> > We're pleased to distribute proposed amendments to the Articles of
> Incorporation of ICANN, to conform the Articles to the CCWG Final Proposal.
> We have two comments that may be helpful in your review.
> >
> >
> > *        You will note some highlighted text in Article 3.  Since the Articles
> govern the Bylaws in the event of any inconsistency between them, this text
> needs to be reviewed to ensure that proposed new Bylaws provisions in Annex
> 5, Paras. 72, 77, 80, and 83, are fully consistent with this description.  In the
> event of any inconsistency, changes should be made to this text in the Articles.
> >
> >
> >
> > *        The minor edits to Article 4 are intended to make the Articles track
> more closely language in Annex 5, Para. 109, on the same subject.  (Note that
> the quote from the Articles on this subject found in Annex 5, Para. 5, is slightly
> inaccurate.)
> >
> > In addition to the edits required to conform the Articles to the CCWG Final
> Proposal, you may wish to consider recommending to the ICANN Board
> making some additional edits now, in anticipation of the scrutiny this
> document may shortly be receiving outside of ICANN.  These amendments
> could be made by the Board alone, before the CCWG Final Proposal
> amendments are adopted.
> >
> >
> > 1.      Article 2, naming the corporation's agent, is required to be included
> when Articles of Incorporation are initially filed with the Secretary of State.  If
> the agent changes after that, the information in this provision is obsolete, but
> it cannot be amended to update the name of the agent.  Section 5810(b) of the
> California Nonprofit Public Benefit Corporation Law does permit this provision
> to be deleted once the corporation has filed its initial biennial Statement of
> Information, and it is standard corporate practice to do so whenever the
> Articles are amended for other reasons.
> >
> >
> >
> > 2.      The third sentence in Article 3 refers to the possibility of future
> versions of the Internal Revenue Code ("IRC").  While referring to a "further"
> law is not entirely wrong, we think substituting "future" would be a more
> common and easily understood usage.
> >
> >
> >
> > 3.      Subsection (e) of Article 5 prohibits control of ICANN by "disqualified
> persons" as defined in IRC Section 4946,  or by a specific subset of 501(c)(3)
> tax-exempt organizations.  There is no legal requirement that ICANN's Articles
> include this prohibition, so we assume it is a matter of ICANN internal policy.
> The reference to the IRC section defining "disqualified persons" is to the
> definition that applies for private foundations; the applicable definition for a
> public charity like ICANN is Section 4958, so if this subsection is retained, you
> may wish to correct that reference.  However, we would be hard-pressed to
> explain why this prohibition appears in ICANN's Articles at all now, and
> especially, if control over ICANN is a concern, why control by only a subset of
> 501(c)(3) nonprofits is prohibited, but not control by other types of tax-
> exempt organizations or for-profit entities.  Moreover, we think it is unlikely
> that ICANN has any disqualified persons under IRC Section 4946 other than its
> foundation managers (directors, officers, and senior executive staff); does
> ICANN maintain a list of such other disqualified persons, or otherwise monitor
> compliance with this subsection?  Given all these concerns, we would
> recommend deleting subsection (e) of Article 5.
> >
> >
> >
> > 4.      Article 8 addresses the possibility that ICANN might some day convert
> from 501(c)(3) public charity status to exemption as a trade or professional
> association under IRC Section 501(c)(6).  Since ICANN's assets are now
> irrevocably dedicated to charitable purposes by both federal tax law and
> California charitable trust law, any such conversion would require all ICANN's
> assets prior to the conversion to be distributed to or for 501(c)(3)
> organizations or purposes, making the cost of any such conversion
> prohibitive.  Keeping this provision at this point serves no practical function,
> and could confuse a reader regarding ICANN's long-standing and on-going tax-
> exempt status under IRC 501(c)(3).  We suggest deleting Article 8.
> >
> > With the exception of item 2 above (which is a one-word substitution), our
> recommendations are all deletions, shortening and simplifying the document,
> and eliminating confusing or no longer applicable provisions.  We think these
> changes would facilitate review by NTIA and Congressional staff.
> >
> > Holly and Rosemary
> >
> > Rosemary E. Fei
> > Adler & Colvin
> > 235 Montgomery Street, Suite 1220
> > San Francisco, CA 94104
> > 415/421-7555 (phone)
> > 415/421-0712 (fax)
> > rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
> > www.adlercolvin.com<http://www.adlercolvin.com>
> >
> >
> >
> > _____________________________
> > Adler & Colvin is a San Francisco Green Business certified by the City and
> County of San Francisco. Please consider the environment before you print
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> >
> 
> 
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> 
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
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