[CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

Thu Jul 7 13:39:33 UTC 2016

Matthew,

How would you suggest revising my proposed language?

Thanks!

Greg

On Thu, Jul 7, 2016 at 3:00 AM, matthew shears <mshears at cdt.org> wrote:

> Thanks Greg.  But, why would we not use the langugage we've agreed in the
> new Bylaws as it relates to GPI?
>
> 2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles
> of Incorporation will be amended to clarify that *the global public
> interest will be determined through a bottom-up, multistakeholder process*.
>
> 2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values)
> 2: Seeking and supporting broad, informed participation reflecting the
> functional, geographic, and cultural diversity of the Internet at all
> levels of policy development and decision-making *to ensure that the
> bottom-up, multistakeholder policy development process is used to ascertain
> the global public interest *and that those processes are accountable and
> transparent.
>
> Thanks.
> Matthew
>
> On 07/07/2016 06:05, Greg Shatan wrote:
>
> All,
>
> For added clarity, I propose the following change:
>
> *Original Language in Revised Bylaws:*
>
> the Corporation shall, except as limited by Article 54 hereof, pursue the
> charitable and public purposes of lessening the burdens of government and
> promoting the global public interest in the operational stability of the
> Internet*,* as such global public interest may be determined from time to
> time by the multistakeholder community through an inclusive bottom-up
> multistakeholder community process*,* by carrying out the mission set
> forth in the bylaws of the Corporation (“*Bylaws*”).
>
> *Proposed Language:*
>
> the Corporation shall, except as limited by Article 54 hereof, pursue the
> charitable and public purposes of lessening the burdens of government and
> promoting the global public interest in the operational stability of the
> Internet by carrying out the mission set forth in the bylaws of the
> Corporation (“*Bylaws*”). *Such global public interest may be determined
> from time to time.  Any determination of such global public interest shall
> be made by the multistakeholder community through an inclusive bottom-up
> multistakeholder community process.*
>
> Basically, what I've done is to remove the long inserted phrase about
> determining the GPI (between the two red commas in the original language
> above) and then try to "unpack" that phrase into sentences.  Thrusting this
> phrase in the middle of the sentence was clearly causing two comprehension
> problems, even though the drafting was technically correct.  In addition to
> the previously discussed comprehension problem around the word "may," the
> mid-sentence insertion of the phrase obscured the connection between the
> final words ("by carrying out the mission...") and the thought that it was
> completing ("the Corporation shall ... pursue the charitable and public
> purposes of [x] and [y]...").  Removing the inserted phrase makes the
> primary narrative thrust of the sentence clear: "*the Corporation shall
> ... pursue the charitable and public purposes of [x] and [y] by by carrying
> out the mission set forth in the bylaws.*"
>
> [Note: I'm using "x" and "y" instead of the actual language to make the
> sentence shorter and easier to follow.]
>
> Lawyers love long sentences (I've seen some go on for 20 lines or more),
> and they love inserting explanatory or qualifying phrases in the middle of
> the sentences, such as this phrase inserted solely to show how such phrases
> are inserted, so that such sentences can run on.  Lawyers will also use the
> word "such" in a somewhat futile effort to indicate that the word following
> (in this case, "sentences") was already used in the sentence and is being
> referred to again with the same meaning.  These drafting habits
> unfortunately make following the main thread of a sentence increasingly
> difficult. They also force awkward phrasing of the inserted clauses, since
> these clauses have to be drafted as referential fragments, rather than
> self-sufficient sentences.  Ultimately, readability and clarity of meaning
> suffers.
>
> I hope that my suggested change clarifies the main thread of the sentence,
> and also clarifies the meaning of the inserted phrase.
>
> Greg
>
> On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen at icann.org>
> wrote:
>
>> All,
>>
>> The ICANN restated articles of incorporation is not on the critical path
>> so we are able to accommodate an extension of the public comment period.
>> The close of the public comment period has been extended to 13 July.
>>
>> Trang
>>
>> From: James Gannon <james at cyberinvasion.net>
>> Date: Wednesday, July 6, 2016 at 2:24 PM
>> To: Greg Shatan <gregshatanipc at gmail.com>
>> Cc: "Gregory, Holly" <holly.gregory at sidley.com>, Thomas Rickert <
>> thomas at rickert.net>, Mathieu Weill <mathieu.weill at afnic.fr>, "
>> leonfelipe at sanchez.mx" <leonfelipe at sanchez.mx>, Accountability Cross
>> Community <accountability-cross-community at icann.org>, Bernard Turcotte <
>> turcotte.bernard at gmail.com>, Trang Nguyen <trang.nguyen at icann.org>, Yuko
>> Green <yuko.green at icann.org>
>>
>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
>> Consultation on Articles of Incorporation (AOC)
>>
>> Hi All,
>> In light of this and some other conversations I think that we need to
>> take at least 24hours to review this comment and ensure that it is a
>> consensus comment of the CCWG before we file it, Im not sure if a 24-48hr
>> delay in the filing of the CCWG comment would have a major impact
>> downstream in the timelines, I have cc’d Trang and Yuko who may be able to
>> respond to that.
>>
>> I think that we may have let the AoI slip under our radar a little with
>> all of the parallel work that is going on and we need to make sure that we
>> get this comment correct first time and to do that we nee to do it with a
>> full set of inputs and considerations by the CCWG members and I don’t feel
>> we have this yet. I know that we are working to tight deadlines, but we
>> need to make sure that we do this right.
>>
>> -JG
>>
>> From: Greg Shatan <gregshatanipc at gmail.com>
>> Date: Wednesday 6 July 2016 at 21:45
>> To: James Gannon <james at cyberinvasion.net>
>> Cc: "Gregory, Holly" <holly.gregory at sidley.com>, Thomas Rickert <
>> thomas at rickert.net>, Mathieu Weill <mathieu.weill at afnic.fr>, "
>> leonfelipe at sanchez.mx" <leonfelipe at sanchez.mx>, Accountability Cross
>> Community <accountability-cross-community at icann.org>, Bernard Turcotte <
>> turcotte.bernard at gmail.com>
>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
>> Consultation on Articles of Incorporation (AOC)
>>
>> It's unfortunate that we don't have time to run this by our counsel, as I
>> would be interested in their views.  Here are mine.
>>
>> I would recommend against filing these comments.
>>
>> FIRST, I disagree with the second point raised.  Substituting "shall" for
>> "may" would incorrectly imply that there is a *requirement* that a
>> determination of the global public interest *must* take place.  We have
>> not asked for such a requirement and we have not specified any such
>> requirement, which would render this statement nebulous, ambiguous and
>> undefined.  As currently drafted, *if* a determination of the global
>> public interest takes place it will be done by the multistakeholder
>> community using a bottom-up multistakeholder process, but there is
>> (properly) no language *requiring* that such a determination be made.
>>
>> If anyone believes that Final Recommendation 1, para 51 *requires* the
>> initiation of a process to determine the global public interest, that
>> should either be a part of Work Stream 2 or a huge implementation item for
>> Work Stream 1.  As far as I can see, it is neither -- which further proves
>> that changing "may" to "shall" goes beyond the recommendations of the CCWG.
>>
>> SECOND, I also disagree with the third point raised. "Organized" is
>> commonly used in Articles of Incorporation (indeed, in some states, such as
>> Massachusetts, a non-profit corporation files Articles of Organization
>> rather than Articles of Incorporation).  As our counsel pointed out on the
>> last call, the California official form for Articles of Incorporation uses
>> the term "organized." (See attached)  It is a best practice to stick
>> closely to the official language provided by the jurisdiction -- here it is
>> "organized."  This is demonstrated in model California Articles of
>> Incorporation prepared by Public Counsel, a pro bono law firm, and
>> available online (see attached or
>> http://www.publiccounsel.org/publications?id=0059).  It would be far
>> preferable if we were to accept the clarification that "organized" is
>> what's used in this circumstance, rather than to recommend a change that is
>> at best meaningless and at worst creates the potential for confusion (since
>> one always looks for meaning in any change, and confusion could fill the
>> void created by the meaninglessness of this change).  To paraphrase
>> Shakespeare, I don't think the confusion is in the document, it is in
>> ourselves (or at least in some of us) -- and it would be better for us to
>> adjust our understanding of the document, rather than to adjust the
>> document to suit our misunderstanding.
>>
>> Of course, the language of the CCWG comment is relatively undemanding --
>> we only ask that "counsel" (whose counsel?  ICANN's?) or "the drafters"
>> (why the difference?) review the language.  We do not justify our
>> quasi-recommendations of changes, other than by saying that we are confused
>> by the word "organized" and by demonstrating that we are confused about
>> what is permissive and what is required.
>>
>> Frankly, I'm far from sure that this comment is widely supported, other
>> than by apathy or lack of time.  I think it would be a mistake for either
>> of these two recommendations (?) to be adopted, and I hope that counsel/the
>> drafters, upon further review, let the original drafting stand.
>>
>> The only thing I agree with is the trivial change from "further" to
>> "future," which at least does not make matters worse.  This is hardly worth
>> a comment by itself.
>>
>> In sum, I reiterate that I would recommend against filing these comments.
>>
>> Best regards,
>>
>> Greg
>>
>> On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc at gmail.com>
>> wrote:
>>
>>> I agree.  This is a legal document, and we should have the benefit of
>>> counsel on this.
>>>
>>> Greg
>>>
>>> On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james at cyberinvasion.net>
>>> wrote:
>>>
>>>> While not able to certify anything, if there are issues that our
>>>> counsel see I think its important that they are raised.
>>>>
>>>> -James
>>>>
>>>> From: <accountability-cross-community-bounces at icann.org> on behalf of
>>>> "Gregory, Holly" <holly.gregory at sidley.com>
>>>> Date: Wednesday 6 July 2016 at 20:32
>>>> To: Thomas Rickert <thomas at rickert.net>, Mathieu Weill <
>>>> mathieu.weill at afnic.fr>, "leonfelipe at sanchez.mx" <leonfelipe at sanchez.mx>,
>>>> Accountability Cross Community <
>>>> accountability-cross-community at icann.org>, Bernard Turcotte <
>>>> turcotte.bernard at gmail.com>
>>>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for
>>>> Public Consultation on Articles of Incorporation (AOC)
>>>>
>>>> Dear Co-Chairs and CCWG-Accountability Members and Participants,
>>>> Please let us know if you want Sidley and/or Adler to comment on this
>>>> before you post it.  We will not do so unless instructed to.  Holly
>>>>
>>>>
>>>>
>>>> *HOLLY J. GREGORY*
>>>> Partner and Co-Chair, Global Corporate Governance & Executive
>>>> Compensation Practice
>>>>
>>>>
>>>> *SIDLEY AUSTIN LLP *+1 212 839 5853 <%2B1%20212%20839%205853>
>>>> holly.gregory at sidley.com
>>>>
>>>>
>>>>
>>>> *From:* accountability-cross-community-bounces at icann.org [
>>>> mailto:accountability-cross-community-bounces at icann.org
>>>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Bernard
>>>> Turcotte
>>>> *Sent:* Wednesday, July 06, 2016 3:27 PM
>>>> *To:* Accountability Cross Community
>>>> *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public
>>>> Consultation on Articles of Incorporation (AOC)
>>>>
>>>>
>>>>
>>>> All,
>>>>
>>>>
>>>>
>>>> Please find attached the draft comment to the ICANN public consultation
>>>> on the Articles of Incorporation from the leadership.
>>>>
>>>>
>>>>
>>>> These comments are based on the questions raised during the CCWG
>>>> meeting on the AOC and in consideration of Sam Eisner's response to those
>>>> questions.
>>>>
>>>>
>>>>
>>>> Please respond to the list ASAP if you have comments as this public
>>>> consultation closes in a few hours.
>>>>
>>>>
>>>>
>>>> Bernard Turcotte
>>>>
>>>> ICANN Staff Support for the CCWG Co-Chairs.
>>>>
>>>>
>>>>
>>>>
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>>>>
>>>
>>
>
>
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>
> --
>
> --------------
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)+ 44 771 2472987
>
>
>
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