[OFB-WG] Draft Comment on Bylaw Amendment

[Alan Greenberg]

See embedded replies

On Fri, Mar 22, 2024 at 9:57 AM Eduardo Diaz <eduardodiazrivera at gmail.com>
wrote:

> Alan:
>
>
> I must emphasize the critical concern that incorporating URLs into the
> ICANN bylaws fundamentally undermines their integrity and purpose. In this
> instance, the reliance on a URL is particularly problematic. The inherent
> nature of URLs allows for the content they direct to be altered at any
> moment. Why include them at all if not to signify potential change?
>

Yes, in theory the content of the web page could be altered on purpose or
accidentally.  But that would not alter the use of the Bylaw limitation.
For the limitation to kick in, the actual conditions need to be satisfied,
not just appear falsely on a web page. Presumably the web page would have
an appropriate disclaimer.

>
>
> I want to draw your attention to the URL precedence mentioned in the ICANN
> bylaw 4.2(h) URL, which directs users to a page detailing the process for a
> “Reconsideration Request,” including a form for submission. It guides to a
> procedural aspect rather than to "…specific cases where the accountability
> mechanisms shall be limited or unavailable…"
>

Of course. It is there for a different purpose than the one being
suggested. But it does set a precedent for having a web pointer in the
Bylaws.

This is not at all optimal, but the problem I raised is real and needs to
be addressed. How do you alert someone who is reading the Bylaws to exactly
what cases the limitation applies. *Do you have a better way to address
this real problem?*


> As I've previously mentioned, the fact that you can change online content
> means that these "specific cases" could be added, modified, or removed
> without notice, thereby affecting the stability and reliability of the
> ICANN bylaws.
>

No, for the limitation/unavailability to apply, being on a web page is not
sufficient.  The three stringent conditions listed in the proposed Bylaw
must have been met.

>
>
> I think instances warranting limited or unavailable accountability
> mechanisms should be explicitly stated within the bylaw rather than
> referenced through a mutable online source. This approach ensures the
> permanence and clarity of our bylaws and safeguards against any changes
> that could compromise their intended mandate.
>

That is what was originally proposed. We do not know if there will ever be
mose limitations (I personally believe that there will be - one was
discussed during the failed discussions on Closed Generics). But if there
is, that would require a new Fundamental Bylaw amendment and the process to
do that is an awkward and time-consuming process. See Bylaws Annex D,
Article 1. It takes several pages just to describe the process.

Avoiding having to do that while NOT making it any easier to enact
accountability limitation is why I suggested commending the Board for its
idea.

Alan

>
> -ed
>
> On Thu, Mar 21, 2024 at 6:39 PM Alan Greenberg via OFB-WG <
> ofb-wg at icann.org> wrote:
>
>> I have drafted a comment on Proposed Bylaws Updates to Limit Access to
>> Accountability Mechanisms.
>>
>> The Wiki page is https://community.icann.org/x/PoDyEg
>> and the Comment Google Doc is
>> https://docs.google.com/document/d/1CzW_U6nA7GSdwX5z6eu3EFn8FE-uh0Z1ZDGIgez2q7c/
>> <https://docs.google.com/document/d/1CzW_U6nA7GSdwX5z6eu3EFn8FE-uh0Z1ZDGIgez2q7c/edit?usp=sharing>
>> .
>>
>> Alan
>> _______________________________________________
>> OFB-WG mailing list
>> OFB-WG at icann.org
>> https://mm.icann.org/mailman/listinfo/ofb-wg
>>
>> _______________________________________________
>> By submitting your personal data, you consent to the processing of your
>> personal data for purposes of subscribing to this mailing list accordance
>> with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and
>> the website Terms of Service (https://www.icann.org/privacy/tos). You
>> can visit the Mailman link above to change your membership status or
>> configuration, including unsubscribing, setting digest-style delivery or
>> disabling delivery altogether (e.g., for a vacation), and so on.
>
>
>
> --
> *Notice*: This email may contain confidential information, is subject to
> legal privilege, and is intended for the use of the named addressee only.
> If you are not the intended recipient, you must not use, disclose or copy
> any part of this email. If you have received this email by mistake, please
> notify the sender and delete this message immediately.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://mm.icann.org/pipermail/ofb-wg/attachments/20240322/b66e50f2/attachment.html>