[CCWG-ACCT] Adler & Colvin Comments on Executive Summary Draft

Matthew Shears mshears at cdt.org
Thu Nov 12 00:03:07 UTC 2015


Agree this needs to be thoroughly addressed in the summary.

On 11/11/2015 15:25, Brenden Kuerbis wrote:
>
>
> On Wed, Nov 11, 2015 at 12:13 AM, Avri Doria <avri at acm.org 
> <mailto:avri at acm.org>> wrote:
>
>     Hi,
>
>     Thanks for this review.
>
>     I have just had the opportunity to read the so-clle "Executive
>     summary"
>     and appreciate many of the comments that are being made. I am
>     obviously
>     too late to review this in any detail and did a quick read through of
>     this commented version. I do want to add to the impression that is a
>     long way from being ready for distribution.
>
>     Some areas that troubled me in my quick read:
>
>     - the absence of any discussion of how these changes complete the
>     requirements for transition in terms of separability and enforcing
>     separability decisions by the empowered community.
>
>
>
> Thanks Avri for noting this and to both counsel for highlighting it. 
> The abscence of discussion of this community power in the draft, with 
> only a single line mentioning it and no explanation (or even a 
> reference) of how it is proposed to work is a huge gap.
>
> Thank you,
>
> Brenden Kuerbis
>
>     - the lack of discussion of how, without statutory authority, the
>     empowered community still has recourse to the courts if necessary that
>     can withstand the withering influence of so-called fiduciary decisions
>     by the board
>     - the absence of any discussion of how the statutory membership
>     right of
>     inspection is to be included under the empowered community model
>     - a reference in regard to human rights that while there were no
>     statutory obligations on ICANN, the backstop of NTIA was assurance
>     that
>     human rights, especially those for freedom of expression and free flow
>     in information on the Internet, would be respected, and that the bylaw
>     is a way to attempt to replace that NTIA backstop.
>
>     As this document stands I do not see it as explaining why these
>     accountability issues are necessary when, and if, the NTIA backstop is
>     lost.  I think that is essential in an "executive summary", not matter
>     what its length.
>
>     Thanks
>
>     avri
>
>
>     On 10-Nov-15 22:53, Rosemary E. Fei wrote:
>     >
>     > Dear Co-Chairs:
>     >
>     > Adler & Colvin’s comments on the Executive Summary are attached; our
>     > apologies for missing the deadline (by 110 minutes).  As Holly
>     noted,
>     > these comments have not been reviewed by or coordinated with Sidley.
>     > Similarly, we have not had time to go back through proposals,
>     emails,
>     > and meeting notes to confirm our recollection of how various
>     decisions
>     > have been made to date, so some comments may reflect the wrong
>     > understanding and should be ignored.  The mark-up includes both some
>     > line edits, and comments in bubbles.  We attach a PDF, to ensure the
>     > comment bubbles will be visible regardless of users’ software.
>     >
>     > We agree with Sidley’s overall comments on length and
>     duplication, and
>     > more substantively on how particular community powers will be
>     > exercised.  Given that this is an Executive Summary, you might
>     > consider presenting a single full escalation pathway as an
>     > illustration only, and then note that the paths will vary as
>     > appropriate for the exercise of other community powers.  A chart
>     > comparing escalation pathways across powers and noting the differing
>     > required thresholds for approval at each stage by power, might
>     be more
>     > useful to understanding than the separate detailed descriptions of
>     > each escalation path provided in this draft.
>     >
>     > Please let us know how we may assist you further.
>     >
>     > Rosemary
>     >
>     > Rosemary E. Fei
>     > Adler & Colvin
>     > 235 Montgomery Street, Suite 1220
>     > San Francisco, CA 94104
>     > 415/421-7555 <tel:415%2F421-7555> (phone)
>     > 415/421-0712 <tel:415%2F421-0712> (fax)
>     > rfei at adlercolvin.com <mailto:rfei at adlercolvin.com>
>     > www.adlercolvin.com <http://www.adlercolvin.com>
>     >
>     >
>     >
>     >
>     >
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>     >
>     > *From: *<accountability-cross-community-bounces at icann.org
>     <mailto:accountability-cross-community-bounces at icann.org>
>     > <mailto:accountability-cross-community-bounces at icann.org
>     <mailto:accountability-cross-community-bounces at icann.org>>> on behalf
>     > of "Gregory, Holly" <holly.gregory at sidley.com
>     <mailto:holly.gregory at sidley.com>
>     > <mailto:holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>>>
>     > *Date: *Tuesday 10 November 2015 at 8:37 p.m.
>     > *To: *"mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>     <mailto:mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>>"
>     > <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>     <mailto:mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>>>,
>     > "thomas at rickert.net <mailto:thomas at rickert.net>
>     <mailto:thomas at rickert.net <mailto:thomas at rickert.net>>"
>     <thomas at rickert.net <mailto:thomas at rickert.net>
>     > <mailto:thomas at rickert.net <mailto:thomas at rickert.net>>>,
>     "leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>
>     > <mailto:leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>>"
>     <leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>
>     > <mailto:leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>>>
>     > *Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com
>     <mailto:sidleyicannccwg at sidley.com>
>     > <mailto:sidleyicannccwg at sidley.com
>     <mailto:sidleyicannccwg at sidley.com>>>, "ACCT-Staff
>     > (acct-staff at icann.org <mailto:acct-staff at icann.org>
>     <mailto:acct-staff at icann.org <mailto:acct-staff at icann.org>>)"
>     > <acct-staff at icann.org <mailto:acct-staff at icann.org>
>     <mailto:acct-staff at icann.org <mailto:acct-staff at icann.org>>>,
>     > "ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>
>     <mailto:ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>"
>     > <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>
>     <mailto:ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>>,
>     Accountability
>     > Cross Community <accountability-cross-community at icann.org
>     <mailto:accountability-cross-community at icann.org>
>     > <mailto:accountability-cross-community at icann.org
>     <mailto:accountability-cross-community at icann.org>>>
>     > *Subject: *[CCWG-ACCT] Sidley Comments on Executive Summary Draft
>     >
>     >
>     >
>     > Dear Co-Chairs and CCWG,
>     >
>     >
>     >
>     > Attached please find Sidley’s comments on the draft Executive
>     > Summary.  Given the very short window for review we have not had
>     time
>     > to coordinate  our comments with the Adler firm and apologize for
>     > that.  Adler will be sending their comments separately.  Please note
>     > also that given the very short time frame we have not been able
>     to go
>     > back and check against the transcripts of the various meetings and
>     > therefore are relying on memory for our understanding of where the
>     > CCWG has formed consensus (or near consensus) on various issues.
>     >
>     >
>     >
>     > Overall we find the Executive Summary overly long with significant
>     > redundancies.  We think it would benefit from  a thorough edit
>     by your
>     > professional writers.  We also believe that the summary is
>     inaccurate
>     > in its description of the community processes with respect to the
>     > decisions to:  (1) remove individual directors and (2) approve
>     > Fundamental Bylaws. (We agree with Jordan’s comments on the
>     > Fundamental Bylaws.) We also recommend that a more pointed
>     discussion
>     > of the CWG dependencies be added so that the reader can
>     understand the
>     > broader context in which the Proposal has been developed.  We have
>     > also edited errors in the description of the legal framework that
>     > applies.  We have noted these comments in the draft.
>     >
>     >
>     >
>     > Please let us know if you would like to discuss or if we can be of
>     > further assistance with this draft.
>     >
>     >
>     >
>     > Kind regards,
>     >
>     > Holly
>     >
>     >
>     >
>     > *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 <tel:%2B1%20212%20839%205853>
>     > holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>
>     <mailto:holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>>
>     > www.sidley.com <http://www.sidley.com> <http://www.sidley.com/>
>     >
>     > http://www.sidley.com/files/upload/signatures/SA-autosig.png
>     > <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
>     >
>     >
>     >
>     >
>     >
>     >
>     >
>     >
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-- 

Matthew Shears
Director - Global Internet Policy and Human Rights
Center for Democracy & Technology
mshears at cdt.org
+ 44 771 247 2987



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