All,

Attached (and duplicated in the text of this email are my comments to the Summary.  Sorry for missing the deadline by 2 hours, 12 minutes, but I've been working on this all afternoon and into the evening.  The most significant comments are in bold.  Some of the other comments are substantive, even if they look like proofreading, because they change (for the better) the sense of the sentence they are modifying.  The remaining comments are more copy-editing/proofreading in nature (though I stopped myself from dealing with commas).  In retrospect, it would have been nice to have an editable copy of the document, but that's life.  If it would help, I can borrow the Sidley word doc and put my changes in, but not right away since I am very late for dinner....

Greg

Global Comment: Overall, I found the Summary extremely repetitive, with the Escalation path described generically on pages 11-13 and then repeated virtually in full no less than 5 times, between pages 18 and 30 (and taking up most of these pages).  This is mind-numbing.  It would be better to describe it once in full and then describe the variations more briefly for each power.  Somehow, even with this massive repetition, the mechanics of rejecting an ICANN Budget/Operating Plan/Strategic Plan or rejecting a change to a Standard Bylaw are barely described at all. Then we seem to run out of steam on the remaining pages, where much of the descriptions are rushed and incomplete.

Specific Comments:

Table of Contents: Major sections on pp. 17-26 need to be bolded and pulled to the margin

p. 3: Item 1, first full paragraph, second line: replace “is” with “to be.”

Bottom of p. 4 to top of p. 5: I think these are only partially true.  However, saying anything less would upset the delicate balance of our work.

p. 5: second bullet, last parenthetical: replace “s” with “ACs”.  I note that even though we define the abbreviations SO and AC here, the full terms are used every single time in pages 18-30, which are already mindnumbing.

p. 5, “Set of Recommendations”: I don’t believe it’s entirely true that our recommendations will “in no way modify the day-to-day operations of ICANN.” We may not have made a specific recommendation that requires a specific change, but one would hope that day-to-day operations change somewhat as a result of enhanced accountability to the community. If there is no change whatsoever, I think we’ve failed.

p. 7, Enhancing the Multistakeholder Model of ICANN:

First bullet: I don’t know what is meant by making ICANN’s role and mission “more robust against change.”  It’s also a terribly-drafted phrase.  It should be removed or replaced with something that makes sense in the English language.

Third bullet: Replace with “Reaffirming a commitment to respect internationally recognized Human Rights”

Fifth bullet: second line, replace “assess” with “assesses”

p. 8, 6^th bullet: As above, replace with “Reaffirming a commitment to respect internationally recognized Human Rights”

p. 9, first line: remove “therefore”.  Standard Bylaws, first line: remove “other.” First line of full paragraph: change “aspects” to “bylaws.” Third line: remove “it is possible that”.

p. 10, Sole Designator Model section, first paragraph, fifth line: replace “the maximum” with “a robust.” sixth-seventh line: remove “some commenters in the Second Public Comment Period stated”.  Second paragraph: revise first clause of first sentence to read “The set of powers available under the Sole Member model were defined by.”  It’s highly misleading to say that these powers “would have been enshrined by statute”; this makes it sound like we were proposing a change to California law to “enshrine” our Member powers.

Empowering the Community section: third line, insert “still” between “might” and “arise.” fourth line, remove “had.” Fifth line: remove “between themselves”.  Sixth line: replace “without” with “before.”

p. 11, second line: insert “are made” before “mandatory”. Petition section: It says “Anyone can begin a petition” – is that really true? There is no requirement to be a member of the SO/AC you are beginning the petition in?  So my son the graduate student, or Justin Bieber, could approach a SO/AC to begin a petition.  That troubles me, particularly when it comes to starting a petition to remove a SO/AC’s appointed director.

p. 12, first bullet: Note 1, revise first clause to read: “for any rejection power, such as the power to reject the Budget, the 15-day period only applies…” Note 2, first line, change “which” to “that.” Last line, change “singing” to “signing” (even though I like the idea of a singing contract).

p. 13, first bullet, insert hyphen between “information” and “sharing”. Second bullet, replace “decision” with “decisions” Line after fourth bullet: add a bullet.

Decision section: capitalize “Community Forum” (this mistake occurs every time this was “cut-and-pasted” in the document). Second bullet: replace “single designator” with “Sole Designator.”

Enforcement section: Change first heading so it reads “Initiate an escalation process to remove all or part of the Board.” We are not compelled to remove the whole board when a more surgical approach would be just as effective and less disruptive. First bullet point: revise to read:  “If successful, the Sole Designator informs the Board (or removed directors) they have been removed and are no longer on the Board.”  This is a key point – board removal/recall must be self-effective.  The director is removed because of the decision, without any action taken by the director or the Board.  Requiring the Board member to affirmatively step down is a mistake.   Second bullet point: revise to read: “If the Board (or any removed director) refuses to recognize the Sole Designator’s exercise of its power….” Third bullet point: replace “is satisfied with” with “accepts.”

p. 15, Enforcement:  The phrase “majority consensus” is an oxymoron and must be removed.  A decision by a mere majority can’t be a consensus. A web search found no references to “majority consensus” as a decisional outcome, only as a socio-cultural phenomenon (e.g. “The majority consensus is that Nickelback is a terrible band.”)  Replace with “a majority decision.”

p. 16, fourth paragraph, last sentence: replace “according to” with “to trigger a conference call, the next step in“. Last paragraph, change “IANA Functions’ Budget” to “IANA Functions Budget” (i.e., remove apostrophe – this happens twice).

p. 17, first sentence of “The Power to Reject…”: Remove ”ICANN’s Bylaws describe how power is exercised in ICANN.” This is a bizarre way to describe Bylaws, though it sounds exciting. Replace with “ICANN’s Bylaws describe ICANN’s purpose and the internal rules that govern ICANN’s operations, including how decisions are made.”

“Standard Bylaws” bullet: remove “other.” Next paragraph after that, third line: replace “the requirement for the” with “this”. Next paragraph, third line: remove “the” before “Standard” Last paragraph on page: remove “reason or”.  We do have to provide some reason, but the removal is “without cause” (which is a legal term with a specific meaning and should always be stated as phrase).

p. 18, first paragraph: replace “perceives that there is a significant issue with” with “believes there is a reason to remove”.  The original language here overstates the case.  Escalation section:  Here especially, the idea that “anyone” (e.g., Justin Bieber) can begin a petition in, e.g., the ASO to remove a director the ASO appointed is troublesome.  This should be changed. Second bullet: second line, replace “rapidly” with “promptly”. Fourth line: replace “schedules” with “schedule”.  Conference Call section: first bullet, references to SO and AC should be singular not plural.  Second line, replace “justification” with “explanation.”  Deciding to hold a Community Forum Section:  Is it really the case that 3 SO/AC’s are needed to hold a Community Forum on removal of a SO/AC appointed director? This seems terribly wrong, when every other decision is made by the appointing SO/AC alone.  This gives blocking power to the other SO/ACs for this right through a procedural hurdle, which is not right. Holding a Community Forum section: third bullet , third line: replace “present its case” with “explain its reasons” – the original phrasing overstates the requirement.

p. 20, first line: replace “a detailed explanation of why it has chosen to do so” with “an explanation of the reasons for removal.” first bullet point: second line, insert “within the Supporting Organization or Advisory Committee” after “support”.  Naming a Replacement section:  Don’t we want to make it clear that the replacement will be chosen before the Board member is removed?

Overview Section: first line, replace “significant issue” with “reason to remove.” Second line, replace “to” with “the.”

p. 22, last paragraph, fourth line: remove “two” – this is not correct.

p. 23, first line: remove “or reason.” Interim Board section, first paragraph: third and fourth line, replace “Under no circumstances will” with “Except under extreme circumstances,” and insert “will not” after “Interim Board.” Second paragraph, first line, remove “of.”  (I look forward to the power-sharing that the Interim Board will be forced to engage in….)

p. 24, Processes section: first line, change “nominated” to “selected”.  Third line change “nominates” to “selects”.  Remove next sentence and replace with “The President and CEO serves as the 16^th Board member as one of the duties of the office (ex officio).” Last sentence, replace “elected” with “appointed”.  Overview section: replace “so entrenched into the Board” (this was written by a professional writer?) with “seriously entrenched in the Board”.

p. 26, Advising the ICANN Board, replace bullet point with “If the community has instructed the Sole Designator to use its power, the Sole Designator will notify the ICANN Board of the decision.  The ICANN Board is automatically removed as a result, and the Interim Board is installed.” Again, there is no need to add a requirement to step down, removal is removal.  The Power to Approve Changes: Repeat comment from before to change bizarre but exciting description of Bylaws.

p. 30, second bullet in the box, fourth line, replace “approve” with “enact the proposal.”  Changes to ICANN’s Mission section, first bullet point – this is still in flux and needs to reflect whatever we end up with.

p. 31, first heading: Remove and replace with “Commitment to Respect Internationally Recognized Human Rights” First paragraph: Remove first sentence and replace with: “The CCWG-Accountability sought legal advice about whether the IANA Functions Contract imposes specific Human Rights obligations on ICANN that would cease to exist upon the termination of the IANA Functions Contract.” Second paragraph, last line: insert “a commitment to” before “Human Rights.”  Draft Bylaw:  Remove underlining on fourth and fifth lines.  Last paragraph, second line: remove “a language will be added to the Bylaws” and replace with “Bylaw”.  Last word: replace “the” with “a”.

p. 33, second bullet: replace “pro-bono” with “pro bono”. Fourth bullet: replace “declaration” with “binding decision”. Next paragraph, last line: change “on” to “of”.  I’m a bit troubled by saying that the “The powers of the Independent Review Process are strictly limited to confirming or rejecting ICANN’s decisions.” If this were really the case, the decisions would be one-word answers: “confirmed” or “rejected.”  Even if they expand on this to explain their decision, this statement would seem to exclude things like the extremely helpful comments made in recent IRP decisions about the flaws and shortcomings of the IRP process.  I understand the sentiment to avoid mission creep by the IRP, but this may be unduly restrictive. Next paragraph: This is repetitive of the bullet just above.  I would remove the last sentence of the bullet, and leave it stated here.  Request for Reconsideration Section: Second line, change “to” to “of” third line, capitalize “committee” and put “(BGC)” after it.  Remove “which affect a party” and replace with “that affect a person or entity”.

p. 34, Incorporating the AoC section: First sentence, second line: after “NTIA” put “, an agency within the U.S. Department of Commerce (DOC)”  Otherwise, the repeated references in the box to “DOC” make no sense.

p. 35, first sentence after box, second line: replace “in tact” with “intact.” Second bullet from bottom, last line: remove “currently.” Last bullet: This seems wrong.  I thought we weren’t going to have reviews change rules in mid-stream.  This seems completely inconsistent with the “take care not to disrupt Reviews in process” concept in the bullet above.  This bullet should be removed.

p. 36, first two paragraphs, change “Structural Reviews” to “Reviews of Structure and Operations”.  Second paragraph, last line: Remove “Structural Reviews” and replace with “the accountability review.”  Concerns section, third line: replace “on” with “regarding”.

p. 37, second paragraph: This refers solely to the GAC, and should be changed to be specific.  Also “agreeable” should be changed to “acceptable” at the beginning of the second and fifth lines, to match the actual wording of the Bylaw.  Third paragraph, I think this is phrased in an overly inflammatory fashion. I would put a period after “advice” on the fifth line and insert a beginning to the next sentence as follows “The Bylaws do not specify the level of support that “GAC advice” must have; therefore, the Board would be required to follow this process” and then pick up with “even if that advice….”  The next sentence after that seems strained and unintelligible; I would change that sentence to say “If the ICANN Board was presented with non-consensus GAC advice and was obligated to seek a “mutually acceptable solution” if it rejected that advice, this could raise accountability issues with the remainder of the community.”

p. 39, Conclusion: second line, says that “some of “ the accountability mechanisms are outlined above.  Which ones are missing??  Fifth line, insert “accountability inherent in ICANN’s” 

before “historical.”

Last section:  This seems odd and tacked on.  Was this intended to go somewhere else (other than after the Conclusion)?