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

[Greg Shatan]

That still doesn't work.  The preceding sentence does not refer to
"regulations."  It refers to the act of regulating.  And the second
sentence is not"buttressing" the first sentence; rather, it is attempting
to alleviate confusion that might come from reading the first sentence
alone (hence, the introductory phrase "For the avoidance of doubt").
Unfortunately, I don't think it succeeds, because the second sentence
itself is not clear.

A simple test for whether "such" works as a substitute for "the" is to try
putting the word "the" back in:

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 the regulations.

That doesn't hang together for me.  But we could go round and round on
this.  I suggest we go back to counsel  -- who drafted this sentence in the
first place -- and ask them to clarify it, since it was supposed to be "for
the avoidance of doubt."

Looking at it now, I think another possibility would be just to remove the
word "such" (or "the," in the example above), so the second sentence reads:
 "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
regulations."  However, I still prefer to end the sentence after
"authority," which I think removes all doubt without adding more.

Greg

On Sun, May 1, 2016 at 7:37 PM, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:

> The statement says "...nothing in the *preceding* sentence...."
>
> The word preceding refers to the sentence prior to that which talks about
> regulation and it's simply buttressing that first sentence by saying
> because "ICANN does not hold any governmentally authorized regulatory
> authority" hence it does not have the authority to regulate (confirming the
> phrase used in the first sentence "ICANN shall not regulate...")
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
> On 2 May 2016 12:14 a.m., "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
>> That doesn't work.  "Regulatory authority" is not the same as
>> "regulations."  So "such regulations" can't refer back to "regulatory
>> authority.'  It can only refer back to an earlier reference to some type of
>> "regulations."
>>
>> Greg
>>
>> On Sun, May 1, 2016 at 8:40 AM, Seun Ojedeji <seun.ojedeji at gmail.com>
>> wrote:
>>
>>> Sent from my LG G4
>>> Kindly excuse brevity and typos
>>> On 29 Apr 2016 6:52 p.m., "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>>>
>>> > "What does "such regulations" refer to?"
>>> >
>>> SO: It seem to refer to "governmentally authorized regulatory
>>> authority,..." which is appropriately noted in the section referenced.
>>>
>>> For clarity (better put, "for avoidance of doubt"), I don't think see
>>> any lack of clarity to resolve here.
>>>
>>> Regards
>>>
>>> > 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
>>> >
>>> > _______________________________________________
>>> > Accountability-Cross-Community mailing list
>>> > Accountability-Cross-Community at icann.org
>>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>> >
>>>
>>
>>
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