May 2016 - Accountability-Cross-Community

Re: [CCWG-ACCT] Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a)
by Niels ten Oever May 2, 2016

May 2, 2016

Hi all, Response to Greg inline (TL;DR - disagree with Seun and agree with Seth and Greg for removal of 'unless or'): On 05/02/2016 04:10 AM, Greg Shatan wrote: > I support the changes proposed by counsel, and I believe they make this > section consistent with the intent of the CCWG Proposal. > > You're entitled to your opinion, Seun, but stating it as if it were a > fact doesn't make it a fact -- it's still your opinion that "what we > have done is NOT in-line with the interpretation of what was written in > the report." I disagree with your opinion. > > In my opinion, what we had before was "NOT in-line with the > interpretation of what was written in the report," and I've provided the > basis for that in prior emails. What we have now -- suggested by > counsel -- brings the Draft Bylaws in line with the CCWG Proposal. > > I don't think what we had in the report was a "mistake" (and I don't > think anyone actually said that even though you seem to think > otherwise); rather what we had was an ambiguous phrase in the so-called > "draft bylaw" in the Proposal (which was never meant to be used verbatim > in the actual Bylaws), which was then clarified by repeated statements > that the review of the FoI in WS2 would proceed the same way as the > review and approval of the Proposal in WS1. The only "mistake" was what > was in the Draft Bylaw circulated by comment, and that has now been > corrected by the language proposed by counsel. > +1 > Speaking to the other comments in this thread: > > The review by the Chartering Organizations is covered by the clause > "using the same process and criteria as for Work Stream 1 > Recommendations." We don't need to spell that process out here. > > "Unless and until" is a conjunctive clause commonly used in legal > drafting. Like many of these "legal twins," it is a set phrase that > often tends to be used without a second thought as to the slightly > different meanings of the two words. Its use can tend to be reflexive > by those who draft a lot of bylaws, contracts or similar legal > documents. There's something comfortable about seeing these types of > phrases. That said, in this instance, we would probably be fine with > "until." > +1 Best, Niels > Greg > > > > On Sun, May 1, 2016 at 6:38 PM, Seth Johnson <seth.p.johnson(a)gmail.com > <mailto:seth.p.johnson@gmail.com>> wrote: > > Any reason why the Core Value is not in force "unless" (and until) > the FoI is done, when the CCWG Report only says "until"? The FoI's > presence in the By-laws is not conditional. That is, it's not as if > it's only in force *if* we work it out -- it *has* to be worked > out! :-) > > If you make it conditional, the process could be forced to choose > between a weak compromise or no FoI at all, which is really not a > choice or compromise. We don't want to set it up that that kind of > brinksmanship is where the process ends up running aground. The > process should be one where we know we have to address the nature > and role of the HR commitment and discuss it in terms of the > *substance* of the issue, and reach compromises only on that basis > -- and not run up against choices between unappealing compromises or > nothing. > > I asked this before, and it may be that there is a rationale, or > perhaps this language somehow does not put us in this position. > > I'd think that simply deleting the words "unless and" would be the > best thing. > > > > Seth > > On Sun, May 1, 2016 at 4:42 PM, Mathieu Weill > <mathieu.weill(a)afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote: > > Dear colleagues, > > Please find below for your consideration some suggestions from > our lawyers for clarification of the bylaw language regarding > the Human rights FoI. This follows our request during the > previous call. > > Best, > > Mathieu Weill > --------------- > Depuis mon mobile, désolé pour le style > > Début du message transféré : > >> *Expéditeur:* "Gregory, Holly" <holly.gregory(a)sidley.com >> <mailto:holly.gregory@sidley.com>> >> *Date:* 1 mai 2016 19:10:53 UTC+2 >> *Destinataire:* "'Mathieu Weill'" <mathieu.weill(a)afnic.fr >> <mailto:mathieu.weill@afnic.fr>>, "'Thomas Rickert'" >> <thomas(a)rickert.net <mailto:thomas@rickert.net>>, León Felipe >> Sánchez Ambía <leonfelipe(a)sanchez.mx >> <mailto:leonfelipe@sanchez.mx>>, "bylaws-coord(a)icann.org >> <mailto:bylaws-coord@icann.org>" <bylaws-coord(a)icann.org >> <mailto:bylaws-coord@icann.org>> >> *Cc:* ACCT-Staff <acct-staff(a)icann.org >> <mailto:acct-staff@icann.org>>, "Rosemary E. Fei" >> <rfei(a)adlercolvin.com <mailto:rfei@adlercolvin.com>>, >> "ICANN(a)adlercolvin.com <mailto:ICANN@adlercolvin.com>" >> <ICANN(a)adlercolvin.com <mailto:ICANN@adlercolvin.com>>, Sidley >> ICANN CCWG <sidleyicannccwg(a)sidley.com >> <mailto:sidleyicannccwg@sidley.com>>, >> "Samantha.Eisner(a)icann.org <mailto:Samantha.Eisner@icann.org>" >> <Samantha.Eisner(a)icann.org <mailto:Samantha.Eisner@icann.org>> >> *Objet:* *Human Rights Transition Provision: Bylaws Section >> 27.3(a)* >> >> Dear Co-Chairs and Bylaws Coordinating Group: >> >> On the CCWG call last week, there was a discussion of the >> Bylaws language regarding the transition provision on Human >> Rights*//*[27.3(a)] and it was suggested that the language be >> clarified to ensure that the same approval process used for >> Work Stream 1 would apply. We propose the following >> clarifying edits. We suggest that you share this with the >> CCWG and if there is agreement, the following proposed edit >> should be included in the CCWG’s public comment:____ >> >> Redline:____ >> >> *Section 27.3. HUMAN RIGHTS____* >> >> __ __ >> >> (a) The Core Value set forth in Section 1.2(b)(viii) shall >> have no force or effect unless and until a framework of >> interpretation for human rights (“*FOI-HR*”) is approved by >> (i) approved for submission to the Board by the >> CCWG-Accountability as a consensus recommendation in Work >> Stream 2, and (ii) approved by each of the >> CCWG-Accountability’s chartering organizations and (iii) the >> Board, (in each thecase of the Board, using the same process >> and criteria used by the Boardto consider the as for Work >> Stream 1 Recommendations).____ >> >> __ __ >> >> (b) No person or entity shall be entitled to invoke the >> reconsideration process provided in Section 4.2, or the >> independent review process provided in Section 4.3, based >> solely on the inclusion of the Core Value set forth in Section >> 1.2(b)(viii) (i) until after the FOI-HR contemplated by >> Section 27.3(a) is in place or (ii) for actions of ICANN or >> the Board that occurred prior to the____ >> >> effectiveness of the FOI-HR.____ >> >> Clean:____ >> >> *Section 27.3. HUMAN RIGHTS____* >> >> __ __ >> >> (a) The Core Value set forth in Section 1.2(b)(viii) shall >> have no force or effect unless and until a framework of >> interpretation for human rights (“*FOI-HR*”) is (i) approved >> for submission to the Board by the CCWG-Accountability as a >> consensus recommendation in Work Stream 2 and (ii) approved by >> the Board, in each case, using the same process and criteria >> as for Work Stream 1 Recommendations.____ >> >> __ __ >> >> (b) No person or entity shall be entitled to invoke the >> reconsideration process provided in Section 4.2, or the >> independent review process provided in Section 4.3, based >> solely on the inclusion of the Core Value set forth in Section >> 1.2(b)(viii) (i) until after the FOI-HR contemplated by >> Section 27.3(a) is in place or (ii) for actions of ICANN or >> the Board that occurred prior to the____ >> >> effectiveness of the FOI-HR.____ >> >> Kind regards, ____ >> >> __ __ >> >> Holly and Rosemary____ >> >> __ __ >> >> __ __ >> >> *HOLLY* *J. GREGORY* >> Partner and Co-Chair >> Corporate Governance & Executive Compensation Practice Group____ >> >> *Sidley Austin LLP* >> 787 Seventh Avenue >> New York, NY 10019 >> +1 212 839 5853 <tel:%2B1%20212%20839%205853> >> holly.gregory(a)sidley.com <mailto:holly.gregory@sidley.com> >> www.sidley.com <http://www.sidley.com/>____ >> >> http://www.sidley.com/files/upload/signatures/SA-autosig.png >> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*____ >> >> __ __ >> >> >> >> **************************************************************************************************** >> This e-mail is sent by a law firm and may contain information >> that is privileged or confidential. >> If you are not the intended recipient, please delete the >> e-mail and any attachments and notify us >> immediately. >> >> **************************************************************************************************** >> > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Re: [CCWG-ACCT] Bylaws Issue: Section 1.1(c)
by Seun Ojedeji May 2, 2016

May 2, 2016

Sent from my LG G4 Kindly excuse brevity and typos On 29 Apr 2016 6:52 p.m., "Greg Shatan" <gregshatanipc(a)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(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community >

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Fwd: Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a)
by Greg Shatan May 2, 2016

May 2, 2016

Resending, since this seems to have been caught in some filter. Greg ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Sun, May 1, 2016 at 10:10 PM Subject: Re: [CCWG-ACCT] Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a) To: Seth Johnson <seth.p.johnson(a)gmail.com> Cc: Mathieu Weill <mathieu.weill(a)afnic.fr>, Accountability Cross Community < accountability-cross-community(a)icann.org>, "Dr. Tatiana Tropina" < t.tropina(a)mpicc.de>, Niels ten Oever <lists(a)nielstenoever.net>, "Mueller, Milton L" <milton(a)gatech.edu>, Nigel Roberts <nigel(a)channelisles.net>, James Gannon <james(a)cyberinvasion.net>, Edward Morris <egmorris1(a)toast.net>, Eberhard Lisse <el(a)lisse.na>, Seun Ojedeji <seun.ojedeji(a)gmail.com>, Thomas Rickert <thomas(a)rickert.net>, León Felipe Sánchez Ambía < leonfelipe(a)sanchez.mx>, "bylaws-coord(a)icann.org" <bylaws-coord(a)icann.org>, ACCT-Staff <acct-staff(a)icann.org>, "Rosemary E. Fei" <rfei(a)adlercolvin.com>, "ICANN(a)adlercolvin.com" <ICANN(a)adlercolvin.com>, Sidley ICANN CCWG < sidleyicannccwg(a)sidley.com>, "Samantha.Eisner(a)icann.org" < Samantha.Eisner(a)icann.org>, "Gregory, Holly" <holly.gregory(a)sidley.com> I support the changes proposed by counsel, and I believe they make this section consistent with the intent of the CCWG Proposal. You're entitled to your opinion, Seun, but stating it as if it were a fact doesn't make it a fact -- it's still your opinion that "what we have done is NOT in-line with the interpretation of what was written in the report." I disagree with your opinion. In my opinion, what we had before was "NOT in-line with the interpretation of what was written in the report," and I've provided the basis for that in prior emails. What we have now -- suggested by counsel -- brings the Draft Bylaws in line with the CCWG Proposal. I don't think what we had in the report was a "mistake" (and I don't think anyone actually said that even though you seem to think otherwise); rather what we had was an ambiguous phrase in the so-called "draft bylaw" in the Proposal (which was never meant to be used verbatim in the actual Bylaws), which was then clarified by repeated statements that the review of the FoI in WS2 would proceed the same way as the review and approval of the Proposal in WS1. The only "mistake" was what was in the Draft Bylaw circulated by comment, and that has now been corrected by the language proposed by counsel. Speaking to the other comments in this thread: The review by the Chartering Organizations is covered by the clause "using the same process and criteria as for Work Stream 1 Recommendations." We don't need to spell that process out here. "Unless and until" is a conjunctive clause commonly used in legal drafting. Like many of these "legal twins," it is a set phrase that often tends to be used without a second thought as to the slightly different meanings of the two words. Its use can tend to be reflexive by those who draft a lot of bylaws, contracts or similar legal documents. There's something comfortable about seeing these types of phrases. That said, in this instance, we would probably be fine with "until." Greg On Sun, May 1, 2016 at 6:38 PM, Seth Johnson <seth.p.johnson(a)gmail.com> wrote: > Any reason why the Core Value is not in force "unless" (and until) the FoI > is done, when the CCWG Report only says "until"? The FoI's presence in the > By-laws is not conditional. That is, it's not as if it's only in force > *if* we work it out -- it *has* to be worked out! :-) > > If you make it conditional, the process could be forced to choose between > a weak compromise or no FoI at all, which is really not a choice or > compromise. We don't want to set it up that that kind of brinksmanship is > where the process ends up running aground. The process should be one where > we know we have to address the nature and role of the HR commitment and > discuss it in terms of the *substance* of the issue, and reach compromises > only on that basis -- and not run up against choices between unappealing > compromises or nothing. > > I asked this before, and it may be that there is a rationale, or perhaps > this language somehow does not put us in this position. > > I'd think that simply deleting the words "unless and" would be the best > thing. > > > > Seth > > On Sun, May 1, 2016 at 4:42 PM, Mathieu Weill <mathieu.weill(a)afnic.fr> > wrote: > >> Dear colleagues, >> >> Please find below for your consideration some suggestions from our >> lawyers for clarification of the bylaw language regarding the Human rights >> FoI. This follows our request during the previous call. >> >> Best, >> >> Mathieu Weill >> --------------- >> Depuis mon mobile, désolé pour le style >> >> Début du message transféré : >> >> *Expéditeur:* "Gregory, Holly" <holly.gregory(a)sidley.com> >> *Date:* 1 mai 2016 19:10:53 UTC+2 >> *Destinataire:* "'Mathieu Weill'" <mathieu.weill(a)afnic.fr>, "'Thomas >> Rickert'" <thomas(a)rickert.net>, León Felipe Sánchez Ambía < >> leonfelipe(a)sanchez.mx>, "bylaws-coord(a)icann.org" <bylaws-coord(a)icann.org> >> *Cc:* ACCT-Staff <acct-staff(a)icann.org>, "Rosemary E. Fei" < >> rfei(a)adlercolvin.com>, "ICANN(a)adlercolvin.com" <ICANN(a)adlercolvin.com>, >> Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, " >> Samantha.Eisner(a)icann.org" <Samantha.Eisner(a)icann.org> >> *Objet:* *Human Rights Transition Provision: Bylaws Section 27.3(a)* >> >> Dear Co-Chairs and Bylaws Coordinating Group: >> >> On the CCWG call last week, there was a discussion of the Bylaws language >> regarding the transition provision on Human Rights [27.3(a)] and it was >> suggested that the language be clarified to ensure that the same approval >> process used for Work Stream 1 would apply. We propose the following >> clarifying edits. We suggest that you share this with the CCWG and if >> there is agreement, the following proposed edit should be included in the >> CCWG’s public comment: >> >> Redline: >> >> *Section 27.3. HUMAN RIGHTS* >> >> >> >> (a) The Core Value set forth in Section 1.2(b)(viii) shall have no force >> or effect unless and until a framework of interpretation for human rights (“ >> *FOI-HR*”) is approved by (i) approved for submission to the Board by the >> CCWG-Accountability as a consensus recommendation in Work Stream 2, and (ii) >> approved by each of the CCWG-Accountability’s chartering organizations >> and (iii) the Board, (in each the case of the Board, using the same >> process and criteria used by the Board to consider the as for Work >> Stream 1 Recommendations). >> >> >> >> (b) No person or entity shall be entitled to invoke the reconsideration >> process provided in Section 4.2, or the independent review process provided >> in Section 4.3, based solely on the inclusion of the Core Value set forth >> in Section 1.2(b)(viii) (i) until after the FOI-HR contemplated by Section >> 27.3(a) is in place or (ii) for actions of ICANN or the Board that occurred >> prior to the >> >> effectiveness of the FOI-HR. >> >> Clean: >> >> *Section 27.3. HUMAN RIGHTS* >> >> >> >> (a) The Core Value set forth in Section 1.2(b)(viii) shall have no force >> or effect unless and until a framework of interpretation for human rights (“ >> *FOI-HR*”) is (i) approved for submission to the Board by the >> CCWG-Accountability as a consensus recommendation in Work Stream 2 and (ii) >> approved by the Board, in each case, using the same process and criteria as >> for Work Stream 1 Recommendations. >> >> >> >> (b) No person or entity shall be entitled to invoke the reconsideration >> process provided in Section 4.2, or the independent review process provided >> in Section 4.3, based solely on the inclusion of the Core Value set forth >> in Section 1.2(b)(viii) (i) until after the FOI-HR contemplated by Section >> 27.3(a) is in place or (ii) for actions of ICANN or the Board that occurred >> prior to the >> >> effectiveness of the FOI-HR. >> >> Kind regards, >> >> >> >> Holly and Rosemary >> >> >> >> >> >> *HOLLY* *J. GREGORY* >> Partner and Co-Chair >> Corporate Governance & Executive Compensation Practice Group >> >> *Sidley Austin LLP* >> 787 Seventh Avenue >> New York, NY 10019 >> +1 212 839 5853 >> holly.gregory(a)sidley.com >> www.sidley.com >> >> [image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] >> <http://www.sidley.com/> *SIDLEY AUSTIN LLP* >> >> >> >> >> >> >> **************************************************************************************************** >> This e-mail is sent by a law firm and may contain information that is >> privileged or confidential. >> If you are not the intended recipient, please delete the e-mail and any >> attachments and notify us >> immediately. >> >> >> **************************************************************************************************** >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >

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Re: [CCWG-ACCT] Bylaws Issue: Section 1.1(c)
by Kavouss Arasteh May 1, 2016

May 1, 2016

Dear All, I replied to the entire team Sorry for misunderstanding I do not agree with these change except the clear deletion to any document which has not been yet agreed . NO BLANKET AGREEMENT Rergards Kavouss 2016-05-01 19:02 GMT+02:00 Seun Ojedeji <seun.ojedeji(a)gmail.com>: > You replied to my text as if you disagree with what I say when indeed we > seem to be saying the same thing; which is that the current wording is > sufficient. > > Regards > > Sent from my LG G4 > Kindly excuse brevity and typos > On 1 May 2016 17:58, "Kavouss Arasteh" <kavouss.arasteh(a)gmail.com> wrote: > >> Dear All, >> I do not believe to start drafting at this stage., >> " For avoidance of any doubt" and " for the sake of clarity" are the >> same and serve the porpoises equally. >> As for the phrase " "*nothing in the preceding sentence should be >> construed to suggest that it does have authority to impose such >> regulations.*" >> It also is clear and I see no reason to use any other words or terms as >> those suggested. It make the sentence more heavy in reading and opneded the >> door for interpretation's >> Pls keep the texts it they were without any changes >> Kavouss >> >> >> 2016-05-01 14:40 GMT+02:00 Seun Ojedeji <seun.ojedeji(a)gmail.com>: >> >>> Sent from my LG G4 >>> Kindly excuse brevity and typos >>> On 29 Apr 2016 6:52 p.m., "Greg Shatan" <gregshatanipc(a)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(a)icann.org >>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> > >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community(a)icann.org >>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>

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Bylaws Issue: Section 1.1(c)
by Greg Shatan May 1, 2016

May 1, 2016

All, There is an issue with Section 1.1(c), which (while relatively minor) should be corrected. (There may also be more significant issues, but I'm not going to go there. I'm just dealing with the question of whether the Bylaws carry out the intent of the Proposal.) This section currently reads: 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. There was a lot of discussion of this provision during the drafting process, and this particular formulation did not emerge until just before the document went out for public comment. My concern is with 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.*" The particular problem is the phrase "such regulations." When lawyers use "such" like this, it replaces "the" when referring to a thing that's already been referred to by that term (or that term with adjectives). ("The door to the bedroom is 3 feet wide. ... Such door will remain open at all times.") Here, however, there's been no prior reference to "regulations," so it's completely unclear what this is referring to. *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.* 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

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