[CCWG-ACCT] CCWG-Accountability - V2.0 of comments on draft Bylaws - 24 hour Final Feedback by CCWG-Accountability

Fri May 13 06:33:43 UTC 2016

Greg, All,

We have confirmed with lawyers that your formulation is ok. We will fix it. 
Apologies for the misunderstanding.

Best

Mathieu

De : Seun Ojedeji [mailto:seun.ojedeji at gmail.com]
Envoyé : vendredi 13 mai 2016 07:37
À : Greg Shatan
Cc : accountability-cross-community at icann.org; Mathieu Weill
Objet : Re: [CCWG-ACCT] CCWG-Accountability - V2.0 of comments on draft 
Bylaws - 24 hour Final Feedback by CCWG-Accountability

>From the minutes
"Bylaws section 1.1.(c), issue with language - Suggested fix GShatan: 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. TR supported. General agreement to include this 
point in CCWG comments."

Please can you help me understand what part of the above is not implemented. 
I like to state that *unless* the legal team confirms otherwise, we stick to 
what they have recommended.

Regards

Sent from my LG G4
Kindly excuse brevity and typos

On 13 May 2016 06:01, "Greg Shatan" <gregshatanipc at gmail.com> wrote:

Mathieu,

I don't believe you are correct on this point.  I looked back at the both 
mark-ups provided by Sidley/Adler and there was no substantive comment on 
this point in either draft.  The fix in my email reflects the outcome of the 
last CCWG call.  The origin of the Recommendation in the draft is obscure, 
and does not come from the CCWG.  Furthermore, the Recommendation as drafted 
does not make sense.  The appropriate action to take is to execute what was 
agreed on the call, which is what's reflected in my email.

Greg

On Thu, May 12, 2016 at 2:53 AM, Mathieu Weill <mathieu.weill at afnic.fr> 
wrote:

Greg,

I believe we also received a comment on this from our lawyers, and we felt 
safer to go with our lawyer’s version.

The difference seems to be in specifically mentioning “governmentally 
authorized regulatory” authority.

Mathieu

De : accountability-cross-community-bounces at icann.org 
[mailto:accountability-cross-community-bounces at icann.org] De la part de Greg 
Shatan
Envoyé : mercredi 11 mai 2016 21:02
À : Bernard Turcotte
Cc : Accountability Cross Community
Objet : Re: [CCWG-ACCT] CCWG-Accountability - V2.0 of comments on draft 
Bylaws - 24 hour Final Feedback by CCWG-Accountability

This version fails to take into account my comment of May 9, which I will 
copy and paste here for ease of reference. Simply put, the Recommendation in 
this draft (as in the first draft) is not what we agreed to in the meeting. 
It also fails to solve the problem.  Please correct the Comment as set forth 
below in blue.  Thanks!

Greg

There's a problem with the recommendation for Section 1.1(c).  Specifically, 
the "Recommendation" is incorrect (based on both the "Issue" stated just 
above it and the call we had last week).  The decision of the group was to 
eliminate the second clause (beginning with "and nothing..."), leaving only 
the first clause "For the avoidance of doubt, ICANN does not hold any 
governmentally authorized regulatory authority."  The proposed 
Recommendation gets this almost exactly backward, deleting the first clause 
and leaving the second.  This needs to be fixed as set forth below.

Currently the section reads as follows:

1. Draft Bylaws section 1.1 (c)
1.1. Text from the Bylaws: “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.”
1.2. Issue: 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" Appears to create some ambiguity.
1.3. Recommendation: Remove this clause and end the sentence with 
"authority." The text would now read: “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, nothing in the 
preceding sentence should be construed to suggest that ICANN does have such 
authority.”

Instead, the Recommendation should be changed to read as follows:

1.3. Recommendation: Remove this clause and end the sentence with 
"authority." The text would now read: “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.”

On Wed, May 11, 2016 at 2:53 PM, Bernard Turcotte 
<turcotte.bernard at gmail.com> wrote:

All,

Please find attached V2.0 of the CCWG-Accountability comments to be 
submitted to the ICANN public consultation on the New Bylaws.

Modifications since V1.0 was circulated (There is no red-line comparison as 
too many things have changed. Rather we are providing a high level summary 
of changes here and are providing both versions V1.0 and 2.0 for ease of 
comparison):

*	V1.0 items 9 and 10 have been removed following consideration of legal 
counsel advice.

*	9. Draft Bylaws Annex D Section 1.4(b)
*	10. Draft Bylaws Annex D Section 2.2 (c) (i) (A)

*	V2.0 new item 9 is  - Draft Bylaws Section 1.2(b)(viii) which was in the 
initial comments but not included in V1.0
*	V2.0 new items 10 to 14. These are a selection by the leadership from the 
list of issues submitted by Alan Greenberg this past weekend

*	10. Draft Bylaws Section 7.12 (b)
*	11. Draft Bylaws Section 4.6(b)(ii)
*	12. Draft Bylaws Section 7.4(d)
*	13. Draft Bylaws Section 7.11(a)(i)(B)
*	14. Draft Bylaws Annex D, Section 1.4(b)(i-ii)

*	V2.0 New - Conclusion - short recap of Introduction

The Final Feedback period is only intended to provide the 
CCWG-Accountability participants the opportunity to confirm there are no 
significant issues or gaps in this version and is not intended as an 
opportunity to raise new issues.

The Feedback period will begin 20:00UTC today Wednesday May 11th and close 
20:00UTC Thursday May 12th.

Please reply to the list using the Subject line of this message to 
facilitate identifying your input (or simply REPLY to this email).

The objective of the leadership is to finalize these and submit them before 
the weekend.

Documents attached.

Bernard Turcotte

ICANN Staff Support for the CCWG-Accountability Co-Chairs - Mathieu Weill, 
Thomas Rickert, Leon Sanchez

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