All, I sent this earlier to the lawyers and Chairs. Looking at my inbox, I see that others are sending comments to the list, so I decided to as well. Best, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> From: Schaefer, Brett Sent: Friday, April 29, 2016 1:55 PM To: Gregory, Holly (holly.gregory@sidley.com); Rosemary E. Fei (rfei@adlercolvin.com) Cc: Mathieu Weill (mathieu.weill@afnic.fr); 'Thomas Rickert' (thomas@rickert.net); León Felipe Sánchez Ambía (leonfelipe@sanchez.mx) Subject: CCWG bylaws public comment and otehr edits/suggestions Holly and Rosemary, Here are my comments on the draft bylaws (using the redline version circulated by Holly on Wed 4/20/16) in terms of consistency with the CCWG proposal: · 1.1(d)ii(A)(1) – The RA and RAA exceptions include not just those in force as of the date, but also those under negotiation. This is not specifically mentioned in the CCWG draft. Moreover, it seems to be overly broad and inconsistent with the overall intent of the CCWG proposal that future agreements should be within the scope and mission of ICANN. Indeed, all of the other exception listed in this section only cover those in force, effective as of, or existing on the specified date. The phrase “, or undergoing negotiation as of,” should be eliminated. · 1.1(d)ii(B-D) – These agreements should not be exempted, they should be within the scope and mission of ICANN and subject to IRP challenge, as is a central principle of the CCWG report. · 1.1(d)ii(F) – The ability to renew seems very sweeping. Would this permit a “renewal” of a substantially changed agreement, even if it involves provisions outside the scope and mission of ICANN since this is the purpose of this section, if the existing terms allowed for adjustments in their terms? This renewal provision should be tightened to prevent such efforts. · 1.2(b)(viii) – The phrase “except as provided herein” is not in the CCWG draft and it is not clear what it refers to. This is concerning because it would seem to undermine the clear constraints stated prior to the phrase: “this Core Value does not create and shall not be interpreted to create any additional obligation for ICANN and shall not obligate ICANN to respond to or consider any complaint, request or demand seeking the enforcement of human rights by ICANN.” The phrase “except as provided herein” should be deleted. · 6.1(b) – The current text states that “any change in the number and/or identity of Decisional Participants for any reason (including the resignation of any Decisional Participant or the addition of new Decisional Participants as a result of the creations of additional Supporting Organizations or Advisory Committees).” Should the possibility of SSAC or RSSAC deciding that they wish to become Decisional Participants in the EC also be specifically addressed? This is not captured in either example. · 22.8 – The current text states: “If three or more Decisional Participants deliver to the Secretary a joint written certification from the respective chairs of each such Decisional Participant that the constituents of such Decisional Participants have, by consensus, determined that there is a credible allegation that ICANN has committed fraud or that there has been a gross mismanagement of ICANN’s resources, ICANN shall retain a third-party, independent firm to investigate such alleged fraudulent activity or gross mismanagement.” Why does this specify that the Decisional Participants have to decide by consensus? This is not in the CCWG report and is inconsistent with the CCWG proposal that states that EC Decisional Participants determine their own procedures. The phrase “,by consensus,” should be struck. · 22.8 – Board power to redact should not be so broad and was not specified in the CCWG proposal. The current text states: “Such report shall be posted on the Website, which may be in a redacted form as determined by the Board, including to preserve attorney-client privilege, work product doctrine or other legal privilege or where such information is confidential, in which case ICANN will provide the Decisional Participants that submitted the certification a written rationale for such redactions.” Suggest striking “, including”. · Annex D Section 1.4(b) – After “if” at the conclusion add the following phrase “after accounting for any adjustments to the below as required by the GAC Carve-out pursuant to Section 3.6(e) of the Bylaws if the Approval Action Board Notice included a GAC Consensus Statement”. This construction mirrors that for the Rejection Action and reflects the GAC carve-out as explained in the CCWG report. · Annex D Section 2.2 (c)(i)(A) – These specific rationales were not specified in the CCWG proposal and I don’t recall discussion of them. Suggest a reversion to a requirement for unspecified rationale. Edits: · 1.1(d)ii – Why is the date 1 October 2016 in brackets? The Board has committed to implementing the bylaws regardless of the transition, so the 1 October 2016 date should be firm (perhaps phrased as “on or prior to 1 October 2016” as is the case in 16.3(a)) or replaced with “upon the adoption of these bylaws”. · 4.3(a)(iii)(A)(4) – First mention of DIDP, should be spelled out. The next DIDP reference is on p. 132 and spells out document information disclosure policy. · 7.2(f)(iii) – Should conditionally be unconditionally? · 7.8(a)(i-vi) – The terms specified for seats 1-3 and for seats 9 and 12 are the same, as are 4-6 and 10 and 13, and 7-8 and 11, 14, and 15. This seems to be an artifact from the timing of the previous bylaws and should be consolidated. · 7.8(b) and 22.3 – The 1 October 2016 date seems superfluous. · 7.11(a)(B) – The deletion of “A” in the parentheses and replacement with “x” seems to be an error. · 16.1 – There does not seem to be a Section 1.1(d)(v) as referenced. · Article 16.2, 17 and 18 titles and section headers frequently lack a space between the number and text. · 18.2(a) Why is the date 1 October 2018 in brackets? · 18.6(c), 18.12(d), 19.1(c), 19.4(c), Annex D 4.2((b)(ii)(B-D) – Replace (x) and (y) with (A) and (B) to comply with the editorial style in the rest of the bylaws? · 18.6(c)(i) – space needed between “Annex D)shall” · 18.8 – Colon, not semi-colon in title · 19.5(f) – repetition: “SCWG’s SCWG Recommendations” · 19.1(c) and 19.4(c) – Is it clear what happens if the Board rejects a SCWG Creation Recommendation and the EC rejects that Board rejection? It appears that the process dies there. Should the Board be able to block the process indefinitely? Or is this where EC Board removal comes into play? Am I reading this incorrectly? Consider: · 4.2 -- The CCWG draft does not provide for interim relief or stay in the case of a request for reconsideration. However, the possibility for harm with no adequate remedy exists for such cases just as it does for the IRP, which does provide such an option. Adding similar protections, at the determination of the Ombudsman, to the reconsideration process in instances where the request is not summarily dismissed would seem to be consistent with the intent of the CCWG report although it is not expressly stated. Should the CCWG public comment suggest granting the Ombudsman authority to confer interim relief during the reconsideration process? I have broader concerns, but I restricted these comments to the matter of consistency with the CCWG proposal. On the edits, I stopped adding them after Article 19 as I was running up against a scheduled meeting and just focused on the substance. Apologies if I missed any later. Best wishes, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy x6097