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

[Greg Shatan]

I don't see the issue.

There is no requirement in the revised Bylaws that the Global Public
Interest be determined, or that such a determination is needed (or even
desirable) for ICANN (the Board, the Corporation and/or the Community) to
make decisions..

There is a requirement that *if* the Global Public Interest is determined,
it will be done by the multistakeholder community through an inclusive
bottom-up multistakeholder community process.

There is no requirement that that the Global Public Interest be determined
at a given time or that (if it is) that it be re-examined at fixed periods:
therefore, it may be determined "from time to time."  This is a phrase I
have commonly seen in legal documents, used to indicate that something can
happen at any time, and may be repeated at any time.  Contrast it with
"periodically," which strongly implies periodicity -- that something will
happen at fixed intervals and not "from time to time."

Acting in the Global Public Interest does not require an exhaustive
determination of what the "Global Public Interest" is before actions are
taken.  Every non-profit that acts as a public benefit or public charity is
required to act in the "public interest," yet I would be surprised if more
than a few (if any) have gone through a process to make a determination of
the "public interest."  ICANN is no exception.  The "Global Public
Interest" standard has been in ICANN's Bylaws since the beginning; this is
nothing new.  It has functioned up until now and it will continue to
function pretty much as it has in this regard, though mindful of the
clarifications and changes brought about by the new Bylaws.

If the multistakeholder community believes it is necessary or appropriate
to take on the task of determining the Global Public Interest, it is now
clear how that must be done -- by the multistakeholder community through an
inclusive bottom-up multistakeholder community process.
If the ICANN Board or staff believes it is appropriate for there to be a
determination of the Global Public Interest, they can't do it themselves;
they must turn to the multistakeholder community to make that determination
through an inclusive bottom-up multistakeholder community process.

Until that time, ICANN will go on as it has.

Greg

P.S. (and a tip o' the homburg hat to CW): There is also the question of
what "Global Public Interest" we are determining.  Strictly speaking, the
Bylaws (old and new) refer to acting in the "global public interest in the
operational stability of the Internet," which is to be done by carrying out
the mission (once stated in the Articles but now only in the Bylaws).  What
does the "operational stability of the Internet" mean?  Based on 17 years
of experience, that should not be narrowly defined.  If ICANN's interest
was truly limited to keeping the pipes open and flowing, the whole New gTLD
Program would be outside the mission.  Any innovation would be aimed solely
at keeping the trains running (e.g., IPv6) but not to making a market in
domain names (at any level).  I'm not proposing that this is a correct
reading of the scope of ICANN's global public interest.  Indeed, I think it
should be clear that ICANN's mission is part of the equation, not merely
the phrase about "operational staiblity."  Unfortunately, that has been
made less clear by removing the enumeration of the mission from the
Articles; while reference is made to the mission as stated in the Bylaws,
distance makes the connection seem attenuated even if it is not.

In any event, any serious discussion of the Global Public Interest would
have to start with the question of "The Global Public Interest in what?"









*Gregory S. Shatan | Partner *McCARTER & ENGLISH, LLP

245 Park Avenue, 27th Floor | New York, New York 10167
T: 212-609-6873
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gshatan at mccarter.com | www.mccarter.com

BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK
EAST BRUNSWICK | PHILADELPHIA  | WILMINGTON | WASHINGTON, DC

On Fri, Jul 8, 2016 at 4:48 PM, Aikman-Scalese, Anne <AAikman at lrrc.com>
wrote:

> 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
>
> _____________________________
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 700
>
> Tucson, Arizona 85701-1611
>
> lrrc.com
>
>
>
> *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> 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
> 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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