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

Fri Jul 8 20:48:59 UTC 2016

Dear all,
I keep trying to figure out how ICANN is supposed to operate on Day 1 of the amended By-Laws given that actions must be taken by the Board and further given that the bottom-up multistakeholder process to determine the Global Public Interest on particular issues takes years.  Is Global Public Interest to be considered in connection with each PDP?  Is there to be a separate PDP on defining  Global Public Interest?

Could  the Board frozen from acting on issues, e.g. the Red Cross, unless and until the GPI is finally determined in this regard?  Would they be in violation of the new By-Laws for voting one way or the other on this?  Same question as to geo names.

To my mind there is still a massive fiction going on to the effect that the Board does not make policy decisions or determine the Global Public Interest.  It is absolutely inherent in the very structure of ICANN that the Board will receive potentially conflicting policy advice and will have to be the arbiter of such advice.  Why have any “thresholds” for overturning either GNSO or GAC advice if this were untrue?  The Board also receives advice directly from ALAC and from other sources, e.g. the European Commission.  Nothing about the Accountabilty work changes this basic fact. The work just says that if enough people object to action taken by the Board, there is a mechanism for addressing that.  Are we to suppose that it is in fact the processes available in the Empowered Community as a result of the Accountability work that will define the Global Public Interest “from time to time”?

I am especially confused by the use of this  language “from time to time’ with respect to determinations of the Global Public  Interest.  Although the community is making efforts to cooperate and communicate early as to policy matters, there really is not a set mechanism at present (nor will there be at the time of the IANA Transition) to measure Board action or hold the Board accountable to acting in the Global Public Interest because no one has defined it.  In this regard, it is actually unfair to Board members to expect them to act in the absence of an express standard that has been developed by the Community.    I think that if I were a Board member, I might refuse to act or to vote on an issue by simply saying, “well, I have to comply with the By-Laws but the GPI with respect to this issue has not yet been determined by the bottom-up Multistakeholder process.”   Everyone acknowledges no definition of GPI is agreed at present.  Why does anyone assume that ICANN can operate effectively on Day 1 of the new By-Laws?

Lastly, I think it would be a  “darned shame” if Holly and Rosemary did not opine on the final language that is recommended around the GPI, if only to prevent lawsuits against the SOs and ACs and their officers.

Bedazzled,
Anne
Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Thursday, July 07, 2016 6:40 AM
To: matthew shears
Cc: Accountability Cross Community; Thomas Rickert
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

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<mailto: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<mailto: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<mailto:james at cyberinvasion.net>>
Date: Wednesday, July 6, 2016 at 2:24 PM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Cc: "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, "leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>, Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, Bernard Turcotte <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>>, Trang Nguyen <trang.nguyen at icann.org<mailto:trang.nguyen at icann.org>>, Yuko Green <yuko.green at icann.org<mailto: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<mailto:gregshatanipc at gmail.com>>
Date: Wednesday 6 July 2016 at 21:45
To: James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>
Cc: "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, "leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>, Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, Bernard Turcotte <turcotte.bernard at gmail.com<mailto: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<mailto: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<mailto: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<mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Wednesday 6 July 2016 at 20:32
To: Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, "leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>, Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, Bernard Turcotte <turcotte.bernard at gmail.com<mailto: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<tel:%2B1%20212%20839%205853>
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: 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 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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Global Internet Policy and Human Rights

Center for Democracy & Technology (CDT)

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