[bylaws-coord] Report on Agreed Text in Four Areas

Tue Apr 19 14:22:44 UTC 2016

Thanks.  Mission and Reconsideration look good to me.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: <Gregory>, Holly <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Tuesday, April 19, 2016 at 1:47 AM
To: "bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>" <bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>>
Cc: "ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>" <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, Daniel Halloran <daniel.halloran at icann.org<mailto:daniel.halloran at icann.org>>, Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>, Amy Stathos <amy.stathos at icann.org<mailto:amy.stathos at icann.org>>
Subject: [bylaws-coord] Report on Agreed Text in Four Areas

Dear Bylaws Coordination Group,

We are writing to draw your attention to the following edits that

Sidley, Adler, and ICANN Legal all support on the four items below. Unless you let us know otherwise, this is the language that will appear in the draft Bylaws.

Kind regards,

Holly, Rosemary, John and Sam

I.  Mission/ “Regulate”
 1.1(c)   ICANN shall not regulate (i.e.,  impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of ICANN’s Article 1.1(a).  For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority, and nothing in the preceding sentence should be construed to suggest that it does have authority to impose such regulations.

II.  Human Rights Core Value

1.2(b)(viii)  Subject to the limitations set forth in Section 27.3, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create and shall not be interpreted to create any additional obligations for ICANN and shall not obligate ICANN to respond to or consider any complaint, request or demand seeking the enforcement of human rights by ICANN, except as provided in these Bylaws.

27.3(a) The Core Value set forth in Section 1.2(b)(viii) shall have no force or effect unless and until a framework of interpretation for human rights (“FOI-HR”) is approved by (i) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations, and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).
(b) No person or entity shall be entitled to invoke the reconsideration process provided in Section 4.2, or the independent review process provided in Section 4.3, based solely on the inclusion of  the Core Value set forth in Section 1.2(b)(viii) in these Bylaws(i) until after the FOI-HR contemplated by subsection (a) above is in place, or (ii)for actions of ICANN or the Board that occurred prior to the effectiveness of the FOI-HR.

III.  Reconsideration/ Recording and Transcript of Board Discussion/ Redaction/ Recourse for Inappropriate Redaction

4.2(r)       The Board shall not be bound to follow the recommendations of the Board Governance Committee.  The final decision of the Board and its rationale shall be made public as part of the preliminary report and minutes of the Board meeting at which action is taken.  The Board shall issue its decision on the recommendation of the Board Governance Committee within 45 days of receipt of the Board Governance Committee’s recommendation or as soon thereafter as feasible.  Any circumstances that delay the Board from acting within this timeframe must be identified and posted on the Website.  In any event, the Board’s final decision shall be made within 135 days of receipt of the Reconsideration Request was initially received by the Board Governance Committee.  The Board’s decision on the recommendation shall be posted on the Website in accordance with the Board’s posting obligations as set forth in Article 3 of these Bylaws. If the party seeking reconsideration so requests, the Board shall post both a recording and a transcript of the substantive Board discussion from the meeting at which the Board considers the Board Governance Committee’s recommendation.  The Board may redact the recording and transcript on the basis that such information (i) relates to confidential personnel matters, (ii) is covered by attorney-client privilege, work product doctrine or other recognized legal privilege, (iii) is subject to a legal obligation that ICANN maintain its confidentiality, (iv) would disclose trade secrets, or (v) would present a material risk of negative impact to the security, stability or resiliency of the Internet.  In the case of any redaction, ICANN will provide the Requestor a written rationale for such redaction.  If a Requestor believes that a redaction was improper, the Requestor may use an appropriate accountability mechanism to challenge the scope of ICANN’s redaction.

IV.  SSR Review

4.6(c)(i)  The Board shall cause a periodic review of ICANN’s execution of its commitment to enhance the operational stability, reliability, resiliency, security, and global interoperability of the systems and processes, both internal and external, that directly affect and/or are affected by the Internet's system of unique identifiers that ICANN coordinates (“SSR Review”).

(ii)  The issues that the review team for the SSR Review (“SSR Review Team”) may assess are the following:
A) security, operational stability and resiliency matters, both physical and network, relating to the coordination of the Internet's system of unique identifiers;
B) conformance with appropriate security contingency planning framework for the Internet’s system of unique identifiers; and
C) maintaining clear and globally interoperable security processes for those portions of the Internet's system of unique identifiers that it coordinates
 [for convenience please see comparison to the relevant language of the Final Supplemental Proposal, Annex 9, copied below in chart form]

SSR Review
Proposal:  Annex 9

SSR Review
Proposed Bylaw Language

102 The Board shall cause a periodic review of
ICANN’s execution of its commitment to
enhance the operational stability, reliability,
resiliency, security, and global
interoperability of the DNS.

The Board shall cause a periodic review of ICANN’s execution of its commitment to enhance the operational stability, reliability, resiliency, security, and global interoperability of the systems and processes, both internal and external, that directly affect and/or are affected by the Internet's system of unique identifiers that ICANN coordinates (“SSR Review”).

103 In this review, particular attention will bepaid to:

The issues that the review team for the SSR Review (“SSR Review Team”) may assess are the following:

104 (a) security, stability, and resiliency matters,
both physical and network, relating to the
secure and stable coordination of the
Internet DNS;

A) security, operational stability and resiliency matters, both physical and network, relating to the coordination of the Internet's system of unique identifiers;

105 (b) ensuring appropriate contingency
planning; and

B) conformance with appropriate security contingency planning framework for the Internet’s system of unique identifiers; and

106 (c) maintaining clear processes.

C) maintaining clear and globally interoperable security processes for those portions of the Internet's system of unique identifiers that it coordinates.

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>
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