[CCWG-ACCT] Bylaws Issue: Section 1.1(c)

[Greg Shatan]

​All,

There is an issue with Section 1.1(c), which (while relatively minor)
should be corrected.  (There may also be more significant issues, but I'm
not going to go there.  I'm just dealing with the question of whether the
Bylaws carry out the intent of the Proposal.)

This section currently reads:

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 Section 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.

There was a lot of discussion of this provision during the drafting
process, and this particular formulation did not emerge until just before
the document went out for public comment.​

My concern is with the last clause of the last sentence: "*nothing in the
preceding sentence should be construed to suggest that it does have
authority to impose such regulations.*"  The particular problem is the
phrase "such regulations."  When lawyers use "such" like this, it replaces
"the" when referring to a thing that's already been referred to by that
term (or that term with adjectives). ("The door to the bedroom is 3 feet
wide. ... Such door will remain open at all times.")  Here, however,
there's been no prior reference to "regulations," so it's completely
unclear what this is referring to.

*The simplest solution would be to remove this clause and end the sentence
with "authority."  That removes the issue of "What does "such regulations"
refer to?"  I support this fix.*

If we want to save the last clause, things get more complicated.  It could
be changed to say "nothing in the preceding sentence should be construed to
suggest that it does have such authority."  Now it's clear that "such
authority" refers to "governmentally authorized regulatory authority."  It
could also be changed to say "nothing in the preceding sentence should be
construed to suggest that it does have authority to impose governmentally
authorized regulations."  However, I'm not sure that either of these are
particularly useful statements or add any clarity to the situation.  (The
first is modestly more useful than the second.)

I look forward to any thoughts.

Greg
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