[CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws

Tue Aug 9 18:03:54 UTC 2016

A few brief thoughts in response.

1.  Don't let the perfect be the enemy of the good. PTI is a necessary
element of the transaction and the Board is a element of the transition.
What's suggested here would pull the entire Transition over to the side, at
least until some workaround was developed.  Initial Directors are
commonplace in setting up new corporations.  I trust that Jonathan and
Lise, both with significant experience in senior management and board
matters, will withstand whatever apocryphal pressure might be put upon them.

2.  I'm not sure what a "very interested stakeholder" is.  If this means a
very dedicated stakeholder, who is very interested in assisting the
community in achieving its goals and who will work on these matters in
spite of personal and professional interests in doing other things, I'll
admit to that.  If this means someone who is operating in this CWG at the
behest of "special interests" and whose actions are designed to advancing
the undisclosed goals of those special interests, I categorically reject
and resent that.  (The latter description might apply to others, and that's
reasonable; it's just not my position, and if you are referring to others,
then I withdraw my sense of umbrage.)

3.  Personally, I don't have any particular affinity for the PTI solution,
and I was opposed to removing the IANA IPR from ICANN.  Both of these were
supported by the consensus of this group, as was the overall concept of
enhancing "separability."  On the latter point, I could have chosen to sulk
and withdraw (or insist I was right long after it became an annoyance to
the group).  I chose neither; rather, I pitched in and worked on
accomplishing the CWG's chosen goal to the best of my ability.  I felt this
was and is the right approach as a good community member and
"multistakeholder."  I won't speak for CWG counsel, but any counsel's role
is to advise and caution on risks and concerns, and when the path is
chosen, to assist the client in seeing it through.  The fact that CWG's
counsel is facilitating the chosen approach of the CWG is manifestly
unexceptional; anything other than that would be peculiar, to say the
least.  Finally, to see in this some grand and concerted plan to dismantle
ICANN (as the IANA) seems rather hypervigilant, to say the least.  If
someone has such a grand plan, I'm no better than a "useful idiot" in that
regard.  I wouldn't discount it entirely as someone's plan or goal (and I
have had my own musings on that front, without naming names), but I do not
ascribe it to some larger group (and certainly not any group of which I am
a part).

4.  The fact that legal documents (Bylaws, Articles of Incorporation,
Agreements) contain legal language should not be shocking.  "Legalese" is
often a pejorative term, and I avoid it here to avoid misinterpretation.
These documents are in fact necessary to implement the transition as
designed.  If anyone finds the documents "impenetrable" in whole or in
part, I'm sure that Sidley would be more than happy to walk through the
documents line by line and explain them all to you (at their usual hourly
rate).  (I might volunteer to do the same, but I've learned repeatedly that
some who need such assistance are reject advice from a "participant" out of
fear that the participant is "very interested" and thus would manipulate
their explanations to serve some unseen agenda or master.)

5.  At the risk of repeating myself, the idea of a simple transition, with
no separability or designed-in anticipation of separation, was rejected in
this group a long time ago, and after months of arduous discussion.  I have
not heard widespread discontent with that choice.  Making a more complex
choice obviously led to more complex implementation.  I happen to think
it's going quite well, though not without occasional bumps and hurdles.
It's certainly not gone so pear-shaped that it should be scrapped.  I will
grant that for those "less interested" (in the non-pejorative sense of
being less involved) may feel they have lost the thread a bit.  If there
are webinars or recap meetings that could help those who feel that way, it
might be a good thing.  Those who are lost, perplexed or confused often
tend to imagine monsters around every bend where there's nothing to behold,
and that should be avoided to the extent possible through explanation and
edification.

6.  The fact that various bodies have no experience with something that
doesn't exist yet also seems rather obvious, but not one to engender
massive changes at the last minute.  That was rather to be expected, wasn't
it?  An alternate reality without reorganization and separability (or one
where any work on that is shelved) has a certain charm and attraction in
its relative simplicity.  However, I see nothing in our current state of
affairs that would support in any way a plan drastically dismantle
something that has been approved by every community, the ICANN Board and
the NTIA just for the sake of taking a deep breath and looking around a
bit.  On the other hand, I can imagine quite a number of negative
consequences from doing so at this late date, or even attempting to do so.
It's far better to make sure that we are "socializing" this plan as often
as possible so that "monsters under the bed" of mistrust and opportunism
can be pointed out to be mere dust balls that disintegrate just by blowing
on them.

Apologies for breaking my promise of brevity.

Greg

On Tue, Aug 9, 2016 at 1:01 PM, Christopher Wilkinson <
lists at christopherwilkinson.eu> wrote:

> Dear Jonathan, Dear Lise:
>
> I do not support this option. I consider that the constitution of PTI
> should be deferred until the Nominating Committee has made its appointments.
> Although I respect and admire the offer from the Co-Chairs to act as
> temporary alternates for the - not-yet-appointed - NomCom Directors, I
> would be concerned that you - as PTI Board members - would be subject to
> unreasonable and unmanageable pressures meanwhile, including in the
> election of a Chair of the PTI Board.
>
> In the light of recent experience, I note that CWG has been driven by a
> few very interested stakeholders towards a position that would facilitate,
> if not anticipate, an early separation of PTI from ICANN and its probable
> severance into two or three distinct entities, and that this orientation
> has been facilitated, if not explicitly supported, by CWG counsel. Whereas
> I am reasonable certain that this does not represent the opinion of a wide
> range of other stakeholders.
>
> Also, I suggest that it is time to call a halt to the vast volume of
> impenetrable legalese that has been generated in the matters of the PTI
> Bylaws, the licensing of IANA IPR, and the so-called Annexe C. Most of
> which is unnecessary for the Transition at this stage when  - apparently -
> time is of the essence. Particularly as some of this material purports to
> address aspects of Internet management about which there are  - to the best
> of my knowledge - no current concerns. Specifically, all discussion of the
> legal aspects of eventual separation, severance or separability, should be
> deferred until the Empowered Community has effectively taken a decision
> that we wish to move in that direction, the procedures for which having
> been defined in the Transition proposal.
>
> More generally, the Empowered Community, the PTI Board, and - dare I say
> so - CWG's Legal Counsel have, perforce to date, no experience in the
> implementation of the proposed Transition.
> I suggest that it would be prudent to let the Transition function, as
> proposed and approved, for 12 to 18 months before going any further.
> Meanwhile we should avoid proposals that are so detailed and abstract that
> they engender at best mistrust and at worst a fear of opportunism.
>
> Regards
>
> Christopher Wilkinson
>
>
>
> On 09 Aug 2016, at 17:30, Jonathan Robinson <jrobinson at afilias.info>
> wrote:
>
> Hi Sharon.
>
> The IOTF was simply put in place to provide a high-frequency touch point
> for ICANN staff as they worked on the implementation. The context for the
> introduction of the IOTF was the “secondment issue” whereby ICANN staff got
> too far ahead of the community in their implementation work. The IOTF had
> no decision making capabilities, these remained reserved for the CWG.
> Therefore, I am not sure it is necessary to reference the IOTF.
>
> Accordingly, I would suggest rewording the below as:
>
> ·       *CWG-Stewardship Comment*:  The CWG recognized that the
> Nominating Committee process for selecting the PTI Nominating Committee
> Directors would not be in place prior to the transition and therefore recommended
> that the two directors be identified prior to the transition to serve in
> the interim until the first election of PTI directors.  It was proposed that
> the Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson,
> serve as the initial Nominating Committee Directors until the first
> election of the PTI directors.  The CWG-Stewardship supports this proposal.
> Should these individuals be unable to serve, the CWG-Stewardship would
> select qualified alternate nominees, and appointment of these alternate
> nominees would be subject to ICANN’s approval (not to be unreasonably
> withheld, conditioned or delayed).  The CWG-Stewardship proposes that
> Section 5.5.1 of the Draft PTI Bylaws be modified as set forth below to
> describe the process for selecting the initial Nominating Committee
> Directors to be in place at the time of transition.
>
> Any comment from others?
>
> Thanks,
>
> Jonathan
>
> *From:* Flanagan, Sharon [mailto:sflanagan at sidley.com]
> *Sent:* 09 August 2016 06:12
> *To:* Client Committee <cwg-client at icann.org>
> *Subject:* [client com] FW: CWG Comment Letter - PTI Bylaws
>
> Dear Client Committee,
>
> Attached is a revised draft of the CWG comment letter to the PTI bylaws.
> This reflects revisions to #4 and #5 of the comment letter.  Specifically,
> we have revised the draft to address the appointment of Lise and Jonathan
> as the initial non-ICANN PTI directors.
>
> In particular, we would appreciate a review of the description of the IOTF
> work below for accuracy since we were not directly involved in those
> discussions.
>
> Given the tight timing (comments are due on Thursday), we are sending this
> to you and ICANN legal simultaneously, and they may have further comments.
>
> Best regards,
> Sharon
>
>
> *1.     **Initial Directors (Section 5.5.1)*
>
> ·       *Text from Draft PTI Bylaws**: *For the appointment of the
> initial directors of PTI, Section 5.5.1 of the Draft PTI Bylaws provides as
> follows: “Other than Directors initially appointed by the incorporator of
> the Corporation (which Directors shall hold office until the first election
> of Directors) and the President of the Corporation, the Directors shall be
> elected by the Member at the annual meeting of the Corporation….”
>
> ·       *CWG-Stewardship Comment*:  In connection with the work of the
> Implementation Oversight Task Force, it was noted that the Nominating
> Committee process for selecting the PTI Nominating Committee Directors
> would not be in place prior to the transition and recommended that the two
> directors be identified prior to the transition to serve in the interim
> until the first election of PTI directors.  It was recommended that the
> Co-chairs of the CWG-Stewardship, Lise Fuhr and Jonathan Robinson, serve as
> the initial Nominating Committee Directors until the first election of the
> PTI directors.  The CWG-Stewardship supports this recommendation.  Should
> these individuals be unable to serve, the CWG-Stewardship would select
> qualified alternate nominees, and appointment of these alternate nominees
> would be subject to ICANN’s approval (not to be unreasonably withheld,
> conditioned or delayed).  The CWG-Stewardship proposes that Section 5.5.1
> of the Draft PTI Bylaws be modified as set forth below to describe the
> process for selecting the initial Nominating Committee Directors to be in
> place at the time of transition.
>
> “*Each initial Director of the Corporation shall hold office until the
> first election of Directors for such Director’s seat.  *Other than *The
> initial *Directors initially *shall be* appointed by the*Member* incorporator
> of the Corporation (which Directors shall hold office until the first
> election of Directors)*, with the Cross Community Working Group to
> Develop an IANA Stewardship Transition Proposal on Naming Related Functions
> selecting two qualified nominees for appointment as the initial Nominating
> Committee Directors by the Member.  Other than the initial Directors* and
> the President of the Corporation, the Directors shall be elected by the
> Member at the annual meeting....”
>
>
>
>
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