[CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws
matthew shears
mshears at cdt.org
Tue Aug 9 18:36:45 UTC 2016
+ 1 Chuck and Greg. In response to your question Chuck - no, I do not
support the objection.
Matthew
On 09/08/2016 19:30, Gomes, Chuck wrote:
>
> + 1 Greg, noting of course that I am probably classified as one of the
> “few very interested stakeholders”. Actually, I think most of us or
> ‘very interested stakeholders’ or we wouldn’t have spent such
> inordinate amounts of time for the last nearly two years.
>
> My question of the WG is this: is this a one-off objection or is there
> support from others in the CWG for it?
>
> It is very disturbing that this objection is coming at this late time
> regardless of whether it was expressed previously or not. Unless I
> missed something, there was no significant objection in the CWG to
> seating Lise and Jonathan on the PTI Board initially. If I am
> correct, this seems like a case of someone trying to get another bite
> at the apple when they failed previously.
>
> p
>
> I fully respect Christopher’s opinion and his right to express it but
> I strongly disagree with it, especially at this terribly late stage in
> the process.
>
> Chuck
>
> *From:*cwg-stewardship-bounces at icann.org
> [mailto:cwg-stewardship-bounces at icann.org] *On Behalf Of *Greg Shatan
> *Sent:* Tuesday, August 09, 2016 2:04 PM
> *To:* Christopher Wilkinson
> *Cc:* cwg-stewardship at icann.org IANA
> *Subject:* Re: [CWG-Stewardship] [client com] CWG Comment Letter - PTI
> Bylaws
>
> 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 <mailto: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
> <mailto: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@
> <mailto:sflanagan@>sidley.com <http://sidley.com>]
> *Sent:* 09 August 2016 06:12
> *To:* Client Committee <cwg-client at icann.org
> <mailto: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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--
--------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987
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