Hi all, I certainly understand that there can be different interpretations of the intent of the report. The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)". We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary. Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question. If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page. Cheers Tanya On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <http://www.article19.org>

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You will agree with me that if there is a different process explaining consensus building for WS2 then it's not really about HR decision making in WS2 it's about decision making on any item in WS2. The HR requirements were clear from the report. 1. Consensus in WS2 for the recommendation 2. Approvals of CO(which is not about consensus, it's referring to outright approval here) 3. Board approval while following the approach used by WS 1 The consensus referred to in point 1 is what is in question and I agree to clarifying what consensus building model will be used for decision making in WS 2 but it should be clear it's not specifically an HR issue; Whatever consensus building model that is applied should affect all issues requiring decisions, including that of HR/FOI Regards Sent from my LG G4 Kindly excuse brevity and typos On 24 Apr 2016 21:42, "Dr. Tatiana Tropina" <t.tropina@mpicc.de> wrote:

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net> wrote:

...

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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David, there is a whole section in the bylaw outlining the process for WS2. Why does HR section establishes something exceptional for Human Rights is WS2 with quite a high bar instead of referring to WS2 processes? I personally read "Including CO's approval" clause in the report as a reference that we decided to follow the same process as in WS1. I believe this is a very reasonable interpretation,especially when I see that there is a reference to the WS1 when it comes to the board approval (in the text you cited). We can not delete the bylaw language, but I agree with Niels and others that the clause in the text on the approval wasn't meant to imply the highest possible bar. It was meant to refer to the WS2 processes. There is a whole chapter on the WS2 in the bylaw. So the question why extraordinary process for HR has been introduced has to be answered. Best regards Tanya On 25/04/16 20:12, McAuley, David wrote:

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect.

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something.

Here is what the draft bylaw-language in the proposal provides:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.

David McAuley

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <http://www.article19.org>

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Dear Holly The restructuring of the sentence is absolutely right and is exactly what we have discussed and debated for longtime. I suggest we end this counterproductive interprétation people and go ahead. Regards Kavouss 2016-04-25 21:48 GMT+02:00 Gregory, Holly <holly.gregory@sidley.com>:

Dear CCWG-Accountability,

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 * (including Chartering Organizations’ approval), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

If you agree, we recommend that you include this in the CCWG’s public comment.

Kind regards,

Holly

*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@sidley.com www.sidley.com

[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect.

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something.

Here is what the draft bylaw-language in the proposal provides:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.

David McAuley

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...>

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Oh lawyers can be so interesting ;-), since the text "..*including Chartering **Organizations’** approval"* is still reflected then I am fine with the rewording suggested. Regards Sent from my LG G4 Kindly excuse brevity and typos On 25 Apr 2016 8:49 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:

Dear CCWG-Accountability,

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 * (including Chartering Organizations’ approval), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

If you agree, we recommend that you include this in the CCWG’s public comment.

Kind regards,

Holly

*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@sidley.com www.sidley.com

[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect.

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something.

Here is what the draft bylaw-language in the proposal provides:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.

David McAuley

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...>

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Holly and All, I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language: “(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval as set forth in the CCWG-Accountability Charter), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” I look forward to your thoughts. Greg On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:

Dear CCWG-Accountability,

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 * (including Chartering Organizations’ approval), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

If you agree, we recommend that you include this in the CCWG’s public comment.

Kind regards,

Holly

*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@sidley.com www.sidley.com

[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect.

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something.

Here is what the draft bylaw-language in the proposal provides:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.

David McAuley

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...>

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Dear all, Thank you for your great reactions. The proposal by Holly is much better than what we had in the proposed bylaws, but I have to completely agree with Gregs worries and proposal underneath, since it leaves no room for interpretation which will benefit our work in Workstream 2. So +1 to Greg. All the best, Niels On 04/26/2016 01:08 AM, Greg Shatan wrote:

Holly and All,

I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations’ approval *as set forth in the CCWG-Accountability Charter*), and _/ (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

I look forward to your thoughts.

Greg

On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:

Dear CCWG-Accountability,

____

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3: ____

____

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations’ approval), and _/ (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” ____

__ __

If you agree, we recommend that you include this in the CCWG’s public comment. ____

__ __

Kind regards, ____

Holly ____

__ __

*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@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*____

____

__ __

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____

__ __

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect. ____

__ __

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something. ____

__ __

Here is what the draft bylaw-language in the proposal provides:____

__ __

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”____

__ __

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.____

__ __

David McAuley____

__ __

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____

__ __

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya ____

On 24/04/16 20:44, Seun Ojedeji wrote:____

Hi,____

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.____

I therefore think the bylaw text is consistent with the intent of the report.____

Regards____

Sent from my LG G4 Kindly excuse brevity and typos____

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:____

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...>

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=Ke7m0Wc1WOPvT-zpltBPQ4xvdcoE_ZdB2l0cdHhY7go&e=>____

____

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-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

Sounds good! Jorge -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Matthew Shears Gesendet: Dienstag, 26. April 2016 12:24 An: Niels ten Oever <lists@nielstenoever.net>; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] inconsistency in bylaws spotted Agreed +1 to Greg's formulation. On 4/26/2016 9:11 AM, Niels ten Oever wrote:

Dear all,

Thank you for your great reactions. The proposal by Holly is much better than what we had in the proposed bylaws, but I have to completely agree with Gregs worries and proposal underneath, since it leaves no room for interpretation which will benefit our work in Workstream 2.

So +1 to Greg.

All the best,

Niels

On 04/26/2016 01:08 AM, Greg Shatan wrote:

...

Holly and All,

I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language:

"(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations' approval *as set forth in the CCWG-Accountability Charter*), and _/ (ii) each of the CCWG-Accountability's chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations)."

I look forward to your thoughts.

Greg

On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:

Dear CCWG-Accountability,

____

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3: ____

____

"(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations' approval), and _/ (ii) each of the CCWG-Accountability's chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations)." ____

__ __

If you agree, we recommend that you include this in the CCWG's public comment. ____

__ __

Kind regards, ____

Holly ____

__ __

*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@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*____

____

__ __

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____

__ __

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect. ____

__ __

I respectfully don't think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation "(including Chartering Organizations' approval)" - we cannot delete that quoted bylaw language as it means something. ____

__ __

Here is what the draft bylaw-language in the proposal provides:____

__ __

"Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations' approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations."____

__ __

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.____

__ __

David McAuley____

__ __

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____

__ __

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations' approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya ____

On 24/04/16 20:44, Seun Ojedeji wrote:____

Hi,____

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.____

I therefore think the bylaw text is consistent with the intent of the report.____

Regards____

Sent from my LG G4 Kindly excuse brevity and typos____

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:____

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

"Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations' approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations."

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability's chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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Dear All, If everybody, agrees with Grec Language, it is also good for me. KAVOUSS 2016-04-26 12:36 GMT+02:00 James Gannon <james@cyberinvasion.net>:

I support Gregs language (Multistkehoderism in action here folks)

On 26/04/2016, 11:28, "accountability-cross-community-bounces@icann.org on behalf of Jorge.Cancio@bakom.admin.ch" < accountability-cross-community-bounces@icann.org on behalf of Jorge.Cancio@bakom.admin.ch> wrote:

...

Sounds good! Jorge

-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] Im Auftrag von Matthew Shears Gesendet: Dienstag, 26. April 2016 12:24 An: Niels ten Oever <lists@nielstenoever.net>; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] inconsistency in bylaws spotted

Agreed +1 to Greg's formulation.

On 4/26/2016 9:11 AM, Niels ten Oever wrote:

...

Dear all,

Thank you for your great reactions. The proposal by Holly is much better than what we had in the proposed bylaws, but I have to completely agree with Gregs worries and proposal underneath, since it leaves no room for interpretation which will benefit our work in Workstream 2.

So +1 to Greg.

All the best,

Niels

On 04/26/2016 01:08 AM, Greg Shatan wrote:

...

Holly and All,

I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language:

"(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations' approval *as set forth in the CCWG-Accountability Charter*), and _/ (ii) each of the CCWG-Accountability's chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations)."

I look forward to your thoughts.

Greg

On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:

Dear CCWG-Accountability,

____

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3: ____

____

"(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations' approval), and _/ (ii) each of the CCWG-Accountability's chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations)." ____

__ __

If you agree, we recommend that you include this in the CCWG's public comment. ____

__ __

Kind regards, ____

Holly ____

__ __

*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@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*____

____

__ __

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____

__ __

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect. ____

__ __

I respectfully don't think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation "(including Chartering Organizations' approval)" - we cannot delete that quoted bylaw language as it means something. ____

__ __

Here is what the draft bylaw-language in the proposal provides:____

__ __

"Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations' approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations."____

__ __

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.____

__ __

David McAuley____

__ __

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____

__ __

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations' approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya ____

On 24/04/16 20:44, Seun Ojedeji wrote:____

Hi,____

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.____

I therefore think the bylaw text is consistent with the intent of the report.____

Regards____

Sent from my LG G4 Kindly excuse brevity and typos____

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:____

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

"Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations' approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations."

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability's chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.or g&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOw kXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=NcvlJyYs f1dukFULmFMt12-UJRg0HtYLbYCN8XiVDjo&e=>

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FWIW what Greg proposed is not inline with the text in the report. However if there is consensus (based on CCWG charter) to change the report that was already submitted in the manner proposed then i am fine with it as well. Regards On Tue, Apr 26, 2016 at 12:08 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:

Holly and All,

I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval as set forth in the CCWG-Accountability Charter), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

I look forward to your thoughts.

Greg

On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:

...

Dear CCWG-Accountability,

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 * (including Chartering Organizations’ approval), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

If you agree, we recommend that you include this in the CCWG’s public comment.

Kind regards,

Holly

*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@sidley.com www.sidley.com

[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect.

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something.

Here is what the draft bylaw-language in the proposal provides:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.

David McAuley

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!

After I typed my note and sent it, I saw this from Andrew who, as usual, expressed it better than I could have done. +1 Andrew P Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Tuesday, April 26, 2016 9:35 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] CCWG report stability and implementation (was Re: inconsistency in bylaws spotted) On Tue, Apr 26, 2016 at 12:29:30PM +0100, Seun Ojedeji wrote:

if there is consensus (based on CCWG charter) to change the report that was already submitted in the manner proposed then i am fine with it as well.

I am under the impression that, regardless of its consensus, CCWG-Accountability can't change the report. The report's been shipped off. It's the report that people are evaluating, not the state of CCWG consensus at any given time. This is why I have expressed, in some cases strongly, rather serious reservations about the way "implementation" has proceeded such that some things the CCWG said may be being adjusted. Most serious, in my opinion, is the continued inclusion of 1.1(d) in the draft bylaws. 1.1(d)(ii) includes references to documents that aren't written and can't possibly be evaluated. It even includes a reference to an agreement between ICANN and an entity that does not yet exist and that might not be named as it is named in these draft bylaws. The idea that one can evaluate such a bylaw is, quite frankly, stupefying. Yet the inclusion of this provision means that the to-be-written contract (or under (F) any renewal thereof) can include any provision at all, and it won't be subject to challenge. The CCWG can't change its report now, and it must ensure that the bylaws actually conform with the report as it is written. If this creates facts that people are unhappy with, well, that's what amendment procedures are for. We'll get to see whether the Empowered Community actually can work as a community. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

+1 -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Tuesday, April 26, 2016 9:35 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] CCWG report stability and implementation (was Re: inconsistency in bylaws spotted) On Tue, Apr 26, 2016 at 12:29:30PM +0100, Seun Ojedeji wrote:

if there is consensus (based on CCWG charter) to change the report that was already submitted in the manner proposed then i am fine with it as well.

I am under the impression that, regardless of its consensus, CCWG-Accountability can't change the report. The report's been shipped off. It's the report that people are evaluating, not the state of CCWG consensus at any given time. This is why I have expressed, in some cases strongly, rather serious reservations about the way "implementation" has proceeded such that some things the CCWG said may be being adjusted. Most serious, in my opinion, is the continued inclusion of 1.1(d) in the draft bylaws. 1.1(d)(ii) includes references to documents that aren't written and can't possibly be evaluated. It even includes a reference to an agreement between ICANN and an entity that does not yet exist and that might not be named as it is named in these draft bylaws. The idea that one can evaluate such a bylaw is, quite frankly, stupefying. Yet the inclusion of this provision means that the to-be-written contract (or under (F) any renewal thereof) can include any provision at all, and it won't be subject to challenge. The CCWG can't change its report now, and it must ensure that the bylaws actually conform with the report as it is written. If this creates facts that people are unhappy with, well, that's what amendment procedures are for. We'll get to see whether the Empowered Community actually can work as a community. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

I've replied to this point on the original thread. In short, my proposal does not change the report. If anything, the current proposed bylaws text changes the report by implying that a higher level of approval for the FOI was intended, when that was not the intent of the group or the proposal. Greg On Tue, Apr 26, 2016 at 12:10 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

Hi Andrew,

Hopefully part of my message is not quoted to imply I support changing the report(it's rather to raise the obvious implication of opening up an already submitted report). However, just to remove any doubt, It's a +1 from me on what you have said as well.

Cheers!

Sent from my LG G4 Kindly excuse brevity and typos On 26 Apr 2016 14:35, "Andrew Sullivan" <ajs@anvilwalrusden.com> wrote:

...

On Tue, Apr 26, 2016 at 12:29:30PM +0100, Seun Ojedeji wrote:

...

if there is consensus (based on CCWG charter) to change the report that was already submitted in the manner proposed then i am fine with it as well.

I am under the impression that, regardless of its consensus, CCWG-Accountability can't change the report. The report's been shipped off. It's the report that people are evaluating, not the state of CCWG consensus at any given time.

This is why I have expressed, in some cases strongly, rather serious reservations about the way "implementation" has proceeded such that some things the CCWG said may be being adjusted. Most serious, in my opinion, is the continued inclusion of 1.1(d) in the draft bylaws. 1.1(d)(ii) includes references to documents that aren't written and can't possibly be evaluated. It even includes a reference to an agreement between ICANN and an entity that does not yet exist and that might not be named as it is named in these draft bylaws. The idea that one can evaluate such a bylaw is, quite frankly, stupefying. Yet the inclusion of this provision means that the to-be-written contract (or under (F) any renewal thereof) can include any provision at all, and it won't be subject to challenge.

The CCWG can't change its report now, and it must ensure that the bylaws actually conform with the report as it is written. If this creates facts that people are unhappy with, well, that's what amendment procedures are for. We'll get to see whether the Empowered Community actually can work as a community.

Best regards,

A

-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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That's why I've suggested the bylaws text be fixed.... On Tue, Apr 26, 2016 at 1:28 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:

On Tue, Apr 26, 2016 at 01:22:46PM -0400, Greg Shatan wrote:

...

I've replied to this point on the original thread. In short, my proposal does not change the report. If anything, the current proposed bylaws text changes the report by implying that a higher level of approval for the FOI was intended, when that was not the intent of the group or the proposal.

In which case, the bylaw text needs to be fixed, which was my main point. I think that's the key: that there be exact alignment between the report and what the bylaws say, even if we conclude now that the resulting bylaw has side effects we don't like.

A

-- Andrew Sullivan ajs@anvilwalrusden.com

I would even say, that it is bylaw text that doesn't follow the report (and misinterprets the intent of the report), so the bylaw text shall be fixed. No changes in the report are implied in this case. Tanks again, Greg and Robin! Cheers Tanya On 26/04/16 19:28, Robin Gross wrote:

I agree with Greg. This is a clarification in the text that does not change the report in any way.

Thanks, Robin

...

On Apr 26, 2016, at 10:22 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:

I've replied to this point on the original thread. In short, my proposal does not change the report. If anything, the current proposed bylaws text changes the report by implying that a higher level of approval for the FOI was intended, when that was not the intent of the group or the proposal.

Greg

On Tue, Apr 26, 2016 at 12:10 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:

Hi Andrew,

Hopefully part of my message is not quoted to imply I support changing the report(it's rather to raise the obvious implication of opening up an already submitted report). However, just to remove any doubt, It's a +1 from me on what you have said as well.

Cheers!

Sent from my LG G4 Kindly excuse brevity and typos

On 26 Apr 2016 14:35, "Andrew Sullivan" <ajs@anvilwalrusden.com <mailto:ajs@anvilwalrusden.com>> wrote:

On Tue, Apr 26, 2016 at 12:29:30PM +0100, Seun Ojedeji wrote: > if there is consensus (based on CCWG charter) to change the report that was > already submitted in the manner proposed then i am fine with it as well.

I am under the impression that, regardless of its consensus, CCWG-Accountability can't change the report. The report's been shipped off. It's the report that people are evaluating, not the state of CCWG consensus at any given time.

This is why I have expressed, in some cases strongly, rather serious reservations about the way "implementation" has proceeded such that some things the CCWG said may be being adjusted. Most serious, in my opinion, is the continued inclusion of 1.1(d) in the draft bylaws. 1.1(d)(ii) includes references to documents that aren't written and can't possibly be evaluated. It even includes a reference to an agreement between ICANN and an entity that does not yet exist and that might not be named as it is named in these draft bylaws. The idea that one can evaluate such a bylaw is, quite frankly, stupefying. Yet the inclusion of this provision means that the to-be-written contract (or under (F) any renewal thereof) can include any provision at all, and it won't be subject to challenge.

The CCWG can't change its report now, and it must ensure that the bylaws actually conform with the report as it is written. If this creates facts that people are unhappy with, well, that's what amendment procedures are for. We'll get to see whether the Empowered Community actually can work as a community.

Best regards,

A

-- Andrew Sullivan ajs@anvilwalrusden.com <mailto:ajs@anvilwalrusden.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Hi all, In agreement with Andrew as well. Best Regards On 4/26/16, Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch> wrote:

+1

Von meinem iPhone gesendet

Am 26.04.2016 um 19:29 schrieb Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>>:

I agree with Greg. This is a clarification in the text that does not change the report in any way.

Thanks, Robin

On Apr 26, 2016, at 10:22 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:

I've replied to this point on the original thread. In short, my proposal does not change the report. If anything, the current proposed bylaws text changes the report by implying that a higher level of approval for the FOI was intended, when that was not the intent of the group or the proposal.

Greg

On Tue, Apr 26, 2016 at 12:10 PM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote:

Hi Andrew,

Hopefully part of my message is not quoted to imply I support changing the report(it's rather to raise the obvious implication of opening up an already submitted report). However, just to remove any doubt, It's a +1 from me on what you have said as well.

Cheers!

Sent from my LG G4 Kindly excuse brevity and typos

On 26 Apr 2016 14:35, "Andrew Sullivan" <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> wrote: On Tue, Apr 26, 2016 at 12:29:30PM +0100, Seun Ojedeji wrote:

...

if there is consensus (based on CCWG charter) to change the report that was already submitted in the manner proposed then i am fine with it as well.

I am under the impression that, regardless of its consensus, CCWG-Accountability can't change the report. The report's been shipped off. It's the report that people are evaluating, not the state of CCWG consensus at any given time.

This is why I have expressed, in some cases strongly, rather serious reservations about the way "implementation" has proceeded such that some things the CCWG said may be being adjusted. Most serious, in my opinion, is the continued inclusion of 1.1(d) in the draft bylaws. 1.1(d)(ii) includes references to documents that aren't written and can't possibly be evaluated. It even includes a reference to an agreement between ICANN and an entity that does not yet exist and that might not be named as it is named in these draft bylaws. The idea that one can evaluate such a bylaw is, quite frankly, stupefying. Yet the inclusion of this provision means that the to-be-written contract (or under (F) any renewal thereof) can include any provision at all, and it won't be subject to challenge.

The CCWG can't change its report now, and it must ensure that the bylaws actually conform with the report as it is written. If this creates facts that people are unhappy with, well, that's what amendment procedures are for. We'll get to see whether the Empowered Community actually can work as a community.

Best regards,

A

-- Andrew Sullivan ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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-- Barrack O. Otieno +254721325277 +254733206359 Skype: barrack.otieno PGP ID: 0x2611D86A

I agree with Greg’s thoughtful comments almost all the time, but not in this case. Greg’s point, as I understand it, is that we should not perpetuate language that led to confusion. A worthy goal – but IMO it is better taken up in developing the FoI in WS2. We have a proposal and it is done and has been accepted by the COs and it says what it says. We should not “fix” it now – we should ask whether the draft bylaws capture what the proposal says. With Holly’s tweak it is basically verbatim. And I can understand the sense in Niels’s comment that Greg’s change leaves no room for interpretation – my concern is that the proposal does leave such room and it is what we presented to the COs for approval. Dealing with interpretation is what implementation and WS2 are basically set up to do. Those are my thoughts on this point and I commend those on both sides for their insights and intent. David McAuley From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Monday, April 25, 2016 7:09 PM To: Gregory, Holly Cc: McAuley, David; Dr. Tatiana Tropina; accountability-cross-community@icann.org; Sidley ICANN CCWG; ICANN@adlercolvin.com Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted Holly and All, I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language: “(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval as set forth in the CCWG-Accountability Charter), and (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” I look forward to your thoughts. Greg On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-Accountability, We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3: “(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval), and (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” If you agree, we recommend that you include this in the CCWG’s public comment. Kind regards, Holly 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@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 From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of McAuley, David Sent: Monday, April 25, 2016 2:12 PM To: Dr. Tatiana Tropina; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect. I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something. Here is what the draft bylaw-language in the proposal provides: “Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.” If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so. David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Dr. Tatiana Tropina Sent: Sunday, April 24, 2016 4:42 PM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted Hi all, I certainly understand that there can be different interpretations of the intent of the report. The item (ii) of the bylaw in the report says: "consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval)". We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary. Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question. If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page. Cheers Tanya On 24/04/16 20:44, Seun Ojedeji wrote: Hi, Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text. I therefore think the bylaw text is consistent with the intent of the report. Regards Sent from my LG G4 Kindly excuse brevity and typos On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net<mailto:lists@nielstenoever.net>> wrote: Dear all, I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1. The CCWG report says where it comes to Human Rights: [ccwg report] “Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.” [/ccwg report] But when I look at the bylaw text it says: [proposed bylaw] 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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations). [/proposed bylaw] Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1. What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2. What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes. All the best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=Ke7m0Wc1WOPvT-zpltBPQ4xvdcoE_ZdB2l0cdHhY7go&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=Ke7m0Wc1WOPvT-zpltBPQ4xvdcoE_ZdB2l0cdHhY7go&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Greg, thanks a lot. Well said. I was even thinking of digging out the calls transcripts and the email exchanges to show that there was no intent to establish a special process or to raise the level of approval, and to confirm what we discussed many times: the HR-FOI shall follow the same process as WS1 recommendations. So I can only say +1 to your well-stated position: the text proposed by you does not change the report. Best regards Tanya On 26/04/16 19:20, Greg Shatan wrote:

All:

My revision is NOT inconsistent with the Supplemental Final Proposal and does NOT "change the report."

The Proposal states, no less than 3 times, that* "acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations)":* * *

In Para. 168; Annex 6, Para. 5; and Annex 6, Para. 19, the following language is repeated verbatim*:* The proposed draft Bylaw also clarifies that no IRP challenges can be made on the grounds of this Bylaw until a Framework of Interpretation on Human Rights (FOI-HR) is developed and approved as part of Work Stream 2 activities. It further clarifies that acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations).

This clearly shows the group's intent regarding the drafting of a Bylaw, which is that *NO* special process or heightened level of approval was intended for the FOI. Where we have had special processes or heightened approvals, we have been very explicit and gone on at considerable length to describe them.

Taking the parenthetical in the Proposal's "draft bylaw" language -- "(including Chartering Organizations’ approval)" -- and using that to manufacture a requirement for a heightened standard (affirmative approval vs. non-objection, or unanimous affirmative approval) tortures the language and is without any basis. We have been clear throughout that the exact language of the "draft bylaw" texts in the Proposal is not to be taken as is, and must be read along with the other guidance in the Proposal to determine what the "real" Draft Bylaw should say. This is made clear when the "draft bylaw" language is introduced in the Proposal, it is prefaced with the following: "Include a Bylaw with the following*intent* in Work Stream 1 recommendations". Read in conjunction wtih Para 168 and Annex 6 Paras 5 and 19, it is clear that the /intent/ of the CCWG was that there should be no special process for the FOI.

Finally, this is not a Work Stream 2 question or an implementation question. This is a question of what the Draft Bylaw should say /now /and we need to resolve this now.

The current Draft Bylaw language does NOT accurately reflect the intent of the CCWG. While I'm not wedded to my exact language suggestion, there needs to be a change made so that the intent of the CCWG is accurately reflected. Since Para 168 and Annex 6 Paras 5 and 19 will not be in the Bylaws, something needs to be added to the language now proposed so that the point they clearly and repeatedly make is absolutely clear in the Bylaws.

Greg

Greg

On Tue, Apr 26, 2016 at 10:18 AM, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:

I agree with Greg’s thoughtful comments almost all the time, but not in this case.

Greg’s point, as I understand it, is that we should not perpetuate language that led to confusion. A worthy goal – but IMO it is better taken up in developing the FoI in WS2. We have a proposal and it is done and has been accepted by the COs and it says what it says. We should not “fix” it now – we should ask whether the draft bylaws capture what the proposal says. With Holly’s tweak it is basically verbatim.

And I can understand the sense in Niels’s comment that Greg’s change leaves no room for interpretation – my concern is that the proposal does leave such room and it is what we presented to the COs for approval. Dealing with interpretation is what implementation and WS2 are basically set up to do.

Those are my thoughts on this point and I commend those on both sides for their insights and intent.

David McAuley

*From:*Greg Shatan [mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>] *Sent:* Monday, April 25, 2016 7:09 PM *To:* Gregory, Holly *Cc:* McAuley, David; Dr. Tatiana Tropina; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>; Sidley ICANN CCWG; ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Holly and All,

I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations’ approval _/*/_as set forth in the CCWG-Accountability Charter_/*/_), and _/ (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

I look forward to your thoughts.

Greg

On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:

Dear CCWG-Accountability,

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 /_(including Chartering Organizations’ approval), and _/ (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

If you agree, we recommend that you include this in the CCWG’s public comment.

Kind regards,

Holly

*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@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*

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect.

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something.

Here is what the draft bylaw-language in the proposal provides:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.

David McAuley

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...>

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The stated premise of your earlier question is incorrect. The existing text does not state that approval of all the Chartering Organizations is required. The answer to the question itself is yes, which is consistent with the Charter of the CCWG, consistent with the Proposal and consistent with the actions of the CCWG in forwarding the WS1 Proposal to the Board. Greg On Tue, Apr 26, 2016 at 1:48 PM, Schaefer, Brett < Brett.Schaefer@heritage.org> wrote:

So the answer to my earlier question is “yes”.

The existing text states that approval of all the Chartering Organizations is required. So the purpose of this addition is to clarify that the Chairs may forward a proposal to the Board even if all of the Chartering Organizations do not approve it?

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Tuesday, April 26, 2016 1:20 PM *To:* McAuley, David *Cc:* Sidley ICANN CCWG; ICANN@adlercolvin.com; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

All:

My revision is NOT inconsistent with the Supplemental Final Proposal and does NOT "change the report."

The Proposal states, no less than 3 times, that* "**acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations)":*

In Para. 168; Annex 6, Para. 5; and Annex 6, Para. 19, the following language is repeated verbatim*:* The proposed draft Bylaw also clarifies that no IRP challenges can be made on the grounds of this Bylaw until a Framework of Interpretation on Human Rights (FOI-HR) is developed and approved as part of Work Stream 2 activities. It further clarifies that acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations).

This clearly shows the group's intent regarding the drafting of a Bylaw, which is that *NO* special process or heightened level of approval was intended for the FOI. Where we have had special processes or heightened approvals, we have been very explicit and gone on at considerable length to describe them.

Taking the parenthetical in the Proposal's "draft bylaw" language -- "(including Chartering Organizations’ approval)" -- and using that to manufacture a requirement for a heightened standard (affirmative approval vs. non-objection, or unanimous affirmative approval) tortures the language and is without any basis. We have been clear throughout that the exact language of the "draft bylaw" texts in the Proposal is not to be taken as is, and must be read along with the other guidance in the Proposal to determine what the "real" Draft Bylaw should say. This is made clear when the "draft bylaw" language is introduced in the Proposal, it is prefaced with the following: "Include a Bylaw with the following* intent* in Work Stream 1 recommendations". Read in conjunction wtih Para 168 and Annex 6 Paras 5 and 19, it is clear that the *intent* of the CCWG was that there should be no special process for the FOI.

Finally, this is not a Work Stream 2 question or an implementation question. This is a question of what the Draft Bylaw should say *now *and we need to resolve this now.

The current Draft Bylaw language does NOT accurately reflect the intent of the CCWG. While I'm not wedded to my exact language suggestion, there needs to be a change made so that the intent of the CCWG is accurately reflected. Since Para 168 and Annex 6 Paras 5 and 19 will not be in the Bylaws, something needs to be added to the language now proposed so that the point they clearly and repeatedly make is absolutely clear in the Bylaws.

Greg

Greg

On Tue, Apr 26, 2016 at 10:18 AM, McAuley, David <dmcauley@verisign.com> wrote:

I agree with Greg’s thoughtful comments almost all the time, but not in this case.

Greg’s point, as I understand it, is that we should not perpetuate language that led to confusion. A worthy goal – but IMO it is better taken up in developing the FoI in WS2. We have a proposal and it is done and has been accepted by the COs and it says what it says. We should not “fix” it now – we should ask whether the draft bylaws capture what the proposal says. With Holly’s tweak it is basically verbatim.

And I can understand the sense in Niels’s comment that Greg’s change leaves no room for interpretation – my concern is that the proposal does leave such room and it is what we presented to the COs for approval. Dealing with interpretation is what implementation and WS2 are basically set up to do.

Those are my thoughts on this point and I commend those on both sides for their insights and intent.

David McAuley

*From:* Greg Shatan [mailto:gregshatanipc@gmail.com] *Sent:* Monday, April 25, 2016 7:09 PM *To:* Gregory, Holly *Cc:* McAuley, David; Dr. Tatiana Tropina; accountability-cross-community@icann.org; Sidley ICANN CCWG; ICANN@adlercolvin.com

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Holly and All,

I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval **as set forth in the CCWG-Accountability Charter**), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

I look forward to your thoughts.

Greg

On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:

Dear CCWG-Accountability,

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3:

“(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval), and * (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”

If you agree, we recommend that you include this in the CCWG’s public comment.

Kind regards,

Holly

*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@sidley.com www.sidley.com

[image: Image removed by sender. http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*

------------------------------ 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

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *McAuley, David *Sent:* Monday, April 25, 2016 2:12 PM *To:* Dr. Tatiana Tropina; accountability-cross-community@icann.org

*Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect.

I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something.

Here is what the draft bylaw-language in the proposal provides:

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”

If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so.

David McAuley

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Sunday, April 24, 2016 4:42 PM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted

Hi all, I certainly understand that there can be different interpretations of the intent of the report.

The item (ii) of the bylaw in the report says: "*consensus recommendation in Work Stream 2 *(including Chartering Organizations’ approval)".

We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary.

Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question.

If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page.

Cheers Tanya

On 24/04/16 20:44, Seun Ojedeji wrote:

Hi,

Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text.

I therefore think the bylaw text is consistent with the intent of the report.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net> wrote:

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

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On your first point, I disagree. Currently, the text as suggested/amended by Holly states, “the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval).” If it did not indicate that approval of all Chartering Organizations was required, I don’t think you would be asking for the clarification. As Andrew argued, this review is supposed to be whether the bylaws are inconsistent with the text of the transition proposal, not whether it is internally consistent. However, we have already been selective in strictly adhering to the text of the transition proposal (see my argument on the treatment of EC approval for Board removal of directors versus GAC participation in the removal of NOMCOM directors). So I guess it is more of a guideline than a principle. From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Tuesday, April 26, 2016 1:59 PM To: Schaefer, Brett Cc: McAuley, David; Sidley ICANN CCWG; ICANN@adlercolvin.com; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted The stated premise of your earlier question is incorrect. The existing text does not state that approval of all the Chartering Organizations is required. The answer to the question itself is yes, which is consistent with the Charter of the CCWG, consistent with the Proposal and consistent with the actions of the CCWG in forwarding the WS1 Proposal to the Board. Greg On Tue, Apr 26, 2016 at 1:48 PM, Schaefer, Brett <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> wrote: So the answer to my earlier question is “yes”. The existing text states that approval of all the Chartering Organizations is required. So the purpose of this addition is to clarify that the Chairs may forward a proposal to the Board even if all of the Chartering Organizations do not approve it? From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Tuesday, April 26, 2016 1:20 PM To: McAuley, David Cc: Sidley ICANN CCWG; ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted All: My revision is NOT inconsistent with the Supplemental Final Proposal and does NOT "change the report." The Proposal states, no less than 3 times, that "acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations)": In Para. 168; Annex 6, Para. 5; and Annex 6, Para. 19, the following language is repeated verbatim: The proposed draft Bylaw also clarifies that no IRP challenges can be made on the grounds of this Bylaw until a Framework of Interpretation on Human Rights (FOI-HR) is developed and approved as part of Work Stream 2 activities. It further clarifies that acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations). This clearly shows the group's intent regarding the drafting of a Bylaw, which is that NO special process or heightened level of approval was intended for the FOI. Where we have had special processes or heightened approvals, we have been very explicit and gone on at considerable length to describe them. Taking the parenthetical in the Proposal's "draft bylaw" language -- "(including Chartering Organizations’ approval)" -- and using that to manufacture a requirement for a heightened standard (affirmative approval vs. non-objection, or unanimous affirmative approval) tortures the language and is without any basis. We have been clear throughout that the exact language of the "draft bylaw" texts in the Proposal is not to be taken as is, and must be read along with the other guidance in the Proposal to determine what the "real" Draft Bylaw should say. This is made clear when the "draft bylaw" language is introduced in the Proposal, it is prefaced with the following: "Include a Bylaw with the following intent in Work Stream 1 recommendations". Read in conjunction wtih Para 168 and Annex 6 Paras 5 and 19, it is clear that the intent of the CCWG was that there should be no special process for the FOI. Finally, this is not a Work Stream 2 question or an implementation question. This is a question of what the Draft Bylaw should say now and we need to resolve this now. The current Draft Bylaw language does NOT accurately reflect the intent of the CCWG. While I'm not wedded to my exact language suggestion, there needs to be a change made so that the intent of the CCWG is accurately reflected. Since Para 168 and Annex 6 Paras 5 and 19 will not be in the Bylaws, something needs to be added to the language now proposed so that the point they clearly and repeatedly make is absolutely clear in the Bylaws. Greg Greg On Tue, Apr 26, 2016 at 10:18 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: I agree with Greg’s thoughtful comments almost all the time, but not in this case. Greg’s point, as I understand it, is that we should not perpetuate language that led to confusion. A worthy goal – but IMO it is better taken up in developing the FoI in WS2. We have a proposal and it is done and has been accepted by the COs and it says what it says. We should not “fix” it now – we should ask whether the draft bylaws capture what the proposal says. With Holly’s tweak it is basically verbatim. And I can understand the sense in Niels’s comment that Greg’s change leaves no room for interpretation – my concern is that the proposal does leave such room and it is what we presented to the COs for approval. Dealing with interpretation is what implementation and WS2 are basically set up to do. Those are my thoughts on this point and I commend those on both sides for their insights and intent. David McAuley From: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Sent: Monday, April 25, 2016 7:09 PM To: Gregory, Holly Cc: McAuley, David; Dr. Tatiana Tropina; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; Sidley ICANN CCWG; ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted Holly and All, I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language: “(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval as set forth in the CCWG-Accountability Charter), and (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” I look forward to your thoughts. Greg On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-Accountability, We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3: “(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval), and (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” If you agree, we recommend that you include this in the CCWG’s public comment. Kind regards, Holly 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@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [Image removed by sender. http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP ________________________________ 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<tel:202-608-6097> heritage.org<http://heritage.org/> ________________________________ 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: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of McAuley, David Sent: Monday, April 25, 2016 2:12 PM To: Dr. Tatiana Tropina; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect. I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something. Here is what the draft bylaw-language in the proposal provides: “Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.” If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so. David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Dr. Tatiana Tropina Sent: Sunday, April 24, 2016 4:42 PM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted Hi all, I certainly understand that there can be different interpretations of the intent of the report. The item (ii) of the bylaw in the report says: "consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval)". We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary. Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question. If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page. Cheers Tanya On 24/04/16 20:44, Seun Ojedeji wrote: Hi, Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text. I therefore think the bylaw text is consistent with the intent of the report. Regards Sent from my LG G4 Kindly excuse brevity and typos On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net<mailto:lists@nielstenoever.net>> wrote: Dear all, I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1. The CCWG report says where it comes to Human Rights: [ccwg report] “Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.” [/ccwg report] But when I look at the bylaw text it says: [proposed bylaw] 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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations). [/proposed bylaw] Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1. What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2. What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes. All the best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=Ke7m0Wc1WOPvT-zpltBPQ4xvdcoE_ZdB2l0cdHhY7go&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=Ke7m0Wc1WOPvT-zpltBPQ4xvdcoE_ZdB2l0cdHhY7go&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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I think part of the problem is it is difficult to 100% correlate the WS1 process used to the documented charter. For instance Chartering Organization “approval” isn’t even mentioned in the charter. The section is “SO and AC support” and the requirement was “decide whether to adopt the recommendations ”, but the in practice we reported “approvals or non-objections”. That said, an alternative text could be the following to remove the word “approval” and any confusion over whether its implying unanimous or not: ““(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) the CCWG-Accountability as a consensus (including Chartering Organizations) recommendation in Work Stream 2 and (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).”” From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Schaefer, Brett Sent: Tuesday, April 26, 2016 2:11 PM To: Greg Shatan <gregshatanipc@gmail.com> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; accountability-cross-community@icann.org; ICANN@adlercolvin.com Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted On your first point, I disagree. Currently, the text as suggested/amended by Holly states, “the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval).” If it did not indicate that approval of all Chartering Organizations was required, I don’t think you would be asking for the clarification. As Andrew argued, this review is supposed to be whether the bylaws are inconsistent with the text of the transition proposal, not whether it is internally consistent. However, we have already been selective in strictly adhering to the text of the transition proposal (see my argument on the treatment of EC approval for Board removal of directors versus GAC participation in the removal of NOMCOM directors). So I guess it is more of a guideline than a principle. From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Tuesday, April 26, 2016 1:59 PM To: Schaefer, Brett Cc: McAuley, David; Sidley ICANN CCWG; ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted The stated premise of your earlier question is incorrect. The existing text does not state that approval of all the Chartering Organizations is required. The answer to the question itself is yes, which is consistent with the Charter of the CCWG, consistent with the Proposal and consistent with the actions of the CCWG in forwarding the WS1 Proposal to the Board. Greg On Tue, Apr 26, 2016 at 1:48 PM, Schaefer, Brett <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> wrote: So the answer to my earlier question is “yes”. The existing text states that approval of all the Chartering Organizations is required. So the purpose of this addition is to clarify that the Chairs may forward a proposal to the Board even if all of the Chartering Organizations do not approve it? From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Tuesday, April 26, 2016 1:20 PM To: McAuley, David Cc: Sidley ICANN CCWG; ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted All: My revision is NOT inconsistent with the Supplemental Final Proposal and does NOT "change the report." The Proposal states, no less than 3 times, that "acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations)": In Para. 168; Annex 6, Para. 5; and Annex 6, Para. 19, the following language is repeated verbatim: The proposed draft Bylaw also clarifies that no IRP challenges can be made on the grounds of this Bylaw until a Framework of Interpretation on Human Rights (FOI-HR) is developed and approved as part of Work Stream 2 activities. It further clarifies that acceptance of the FOI-HR will require the same process as for Work Stream 1 recommendations (as agreed for all Work Stream 2 recommendations). This clearly shows the group's intent regarding the drafting of a Bylaw, which is that NO special process or heightened level of approval was intended for the FOI. Where we have had special processes or heightened approvals, we have been very explicit and gone on at considerable length to describe them. Taking the parenthetical in the Proposal's "draft bylaw" language -- "(including Chartering Organizations’ approval)" -- and using that to manufacture a requirement for a heightened standard (affirmative approval vs. non-objection, or unanimous affirmative approval) tortures the language and is without any basis. We have been clear throughout that the exact language of the "draft bylaw" texts in the Proposal is not to be taken as is, and must be read along with the other guidance in the Proposal to determine what the "real" Draft Bylaw should say. This is made clear when the "draft bylaw" language is introduced in the Proposal, it is prefaced with the following: "Include a Bylaw with the following intent in Work Stream 1 recommendations". Read in conjunction wtih Para 168 and Annex 6 Paras 5 and 19, it is clear that the intent of the CCWG was that there should be no special process for the FOI. Finally, this is not a Work Stream 2 question or an implementation question. This is a question of what the Draft Bylaw should say now and we need to resolve this now. The current Draft Bylaw language does NOT accurately reflect the intent of the CCWG. While I'm not wedded to my exact language suggestion, there needs to be a change made so that the intent of the CCWG is accurately reflected. Since Para 168 and Annex 6 Paras 5 and 19 will not be in the Bylaws, something needs to be added to the language now proposed so that the point they clearly and repeatedly make is absolutely clear in the Bylaws. Greg Greg On Tue, Apr 26, 2016 at 10:18 AM, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: I agree with Greg’s thoughtful comments almost all the time, but not in this case. Greg’s point, as I understand it, is that we should not perpetuate language that led to confusion. A worthy goal – but IMO it is better taken up in developing the FoI in WS2. We have a proposal and it is done and has been accepted by the COs and it says what it says. We should not “fix” it now – we should ask whether the draft bylaws capture what the proposal says. With Holly’s tweak it is basically verbatim. And I can understand the sense in Niels’s comment that Greg’s change leaves no room for interpretation – my concern is that the proposal does leave such room and it is what we presented to the COs for approval. Dealing with interpretation is what implementation and WS2 are basically set up to do. Those are my thoughts on this point and I commend those on both sides for their insights and intent. David McAuley From: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Sent: Monday, April 25, 2016 7:09 PM To: Gregory, Holly Cc: McAuley, David; Dr. Tatiana Tropina; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; Sidley ICANN CCWG; ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted Holly and All, I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal. i would suggest adding the following clarifying language: “(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval as set forth in the CCWG-Accountability Charter), and (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” I look forward to your thoughts. Greg On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-Accountability, We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended. Therefore we propose that a clarification would be helpful. Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3: “(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) the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval), and (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).” If you agree, we recommend that you include this in the CCWG’s public comment. Kind regards, Holly 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@sidley.com<mailto:holly.gregory@sidley.com> www.sidley.com<http://www.sidley.com/> [Image removed by sender. http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP ________________________________ 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<tel:202-608-6097> heritage.org<http://heritage.org/> ________________________________ 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: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of McAuley, David Sent: Monday, April 25, 2016 2:12 PM To: Dr. Tatiana Tropina; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted In my personal opinion, I think Tatiana was correct in observing that there can be different interpretations in this respect. I respectfully don’t think we can now say that decision making regarding the FoI in WS2 is simply based on the charter. The charter set WS1 in motion and in WS1 we specifically agreed that the HR bylaw will not enter into force until, among other things, an FoI is developed as a consensus WS2 recommendation “(including Chartering Organizations’ approval)” – we cannot delete that quoted bylaw language as it means something. Here is what the draft bylaw-language in the proposal provides: “Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.” If that requires further clarity it seems to me that it will need to be developed in WS2 given that our charge now is to see if the bylaws draft tracks the final proposal. In this respect it appears to do so. David McAuley From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Dr. Tatiana Tropina Sent: Sunday, April 24, 2016 4:42 PM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted Hi all, I certainly understand that there can be different interpretations of the intent of the report. The item (ii) of the bylaw in the report says: "consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval)". We have even have different thresholds for consensus in the report itself, which one is applicable here? What is the process for reaching this consensus? The same as for WS1? Then we might need a reference to WS1 may be? Furthermore: will everything developed in the WS2 require a full consensus and approval of all COs? I read the chapter in the bylaws about WS2 and it refers to the process and charter of WS1. No requirement for full consensus or approval of the all the COs there. Why does not HR bylaw refer to the previous section in the bylaw that specifically outlines the requirements for Ws, but introduces the approval of all COs instead? I don't mind this, but the clarification seems to be necessary. Is there already a definition of consensus for the purpose of the WS2 and if yes, is it the same that has been introduced for HR FOI in HR bylaw text? This is my question. If the answer is "yes" - then there is no inconsistency. However, I agree with Niels that this should be clarified, so we all will be on the same page. Cheers Tanya On 24/04/16 20:44, Seun Ojedeji wrote: Hi, Are you saying that the bylaw text is different from the intent of the report as I don't think that is the case. The report indeed required approval of the CO which was rightly reflected as item ii in the bylaw text. I therefore think the bylaw text is consistent with the intent of the report. Regards Sent from my LG G4 Kindly excuse brevity and typos On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists@nielstenoever.net<mailto:lists@nielstenoever.net>> wrote: Dear all, I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1. The CCWG report says where it comes to Human Rights: [ccwg report] “Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.” [/ccwg report] But when I look at the bylaw text it says: [proposed bylaw] 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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations). [/proposed bylaw] Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1. What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2. What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes. All the best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.article19.org&d=CwMF...> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=Ke7m0Wc1WOPvT-zpltBPQ4xvdcoE_ZdB2l0cdHhY7go&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=CW0HijJt950Jj0TnSs0Uu9zc0aeHn-COr3a24oHd6IM&s=Ke7m0Wc1WOPvT-zpltBPQ4xvdcoE_ZdB2l0cdHhY7go&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Nigel, and all

-----Original Message----- Niels

I'm not surprised at this in the slightest, given that despite the precatory sentiments, the new By-Laws will operate to remove any legal obligation to respect fundamental rights.

That is certainly NOT what was intended by the CCWG. Therefore, I have to agree with Niels that by setting up special and extraordinary approval requirements for the Framework of Interpretation (FoI), the proposed bylaws have deviated from the agreement and this will have to be changed. Another way of putting it: nice try, Jeffries, but it won't fly. ;-) Let's start working now on replacement language.

Dear All, Both texts say he same things but in a more structured manner Kavouss. Sent from my iPhone

On 25 Apr 2016, at 08:58, Dr Eberhard W Lisse <el@lisse.na> wrote:

What do OUR lawyers have to say, who,signed off on this after all?

el

-- Sent from Dr Lisse's iPad mini 4

...

On 25 Apr 2016, at 07:19, <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> wrote:

Dear all

If I did not misunderstand the intent of the CCWG report, it was intended to follow the same consensus-building method as for ws1 (and any other ccwg) recommendations. Hence, I feel Niels is right in that the draft Bylaws seem to establish a higher threshold.

Regards

Jorge

-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Sonntag, 24. April 2016 20:01 An: accountability-cross-community@icann.org Betreff: [CCWG-ACCT] inconsistency in bylaws spotted

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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+ 1 James On Mon, Apr 25, 2016 at 9:23 AM, James Gannon <james@cyberinvasion.net> wrote:

No if that was the case there would not be a number of people pointing this out.

I agree with Neils Milton and Jorge that this is not an accurate reflection of the proposal and needs to be changed

On 25/04/2016, 08:33, "accountability-cross-community-bounces@icann.org on behalf of Kavouss Arasteh" < accountability-cross-community-bounces@icann.org on behalf of kavouss.arasteh@gmail.com> wrote:

...

Dear All, Both texts say he same things but in a more structured manner Kavouss.

Sent from my iPhone

...

On 25 Apr 2016, at 08:58, Dr Eberhard W Lisse <el@lisse.na> wrote:

What do OUR lawyers have to say, who,signed off on this after all?

el

-- Sent from Dr Lisse's iPad mini 4

...

On 25 Apr 2016, at 07:19, <Jorge.Cancio@bakom.admin.ch> < Jorge.Cancio@bakom.admin.ch> wrote:

Dear all

If I did not misunderstand the intent of the CCWG report, it was intended to follow the same consensus-building method as for ws1 (and any other ccwg) recommendations. Hence, I feel Niels is right in that the draft Bylaws seem to establish a higher threshold.

Regards

Jorge

-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Sonntag, 24. April 2016 20:01 An: accountability-cross-community@icann.org Betreff: [CCWG-ACCT] inconsistency in bylaws spotted

Dear all,

I hope this email finds you well. Upon re-reading the bylaw text I came across the following issue which does not seem to be in accordance with what we agreed in WS1.

The CCWG report says where it comes to Human Rights:

[ccwg report]

“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and

criteria it has committed to use to consider the Work Stream 1 recommendations.”

[/ccwg report]

But when I look at the bylaw text it says:

[proposed bylaw]

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) the CCWG-Accountability as a consensus recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s chartering organizations and (iii) the Board (in the case of the Board, using the same process and criteria used by the Board to consider the Work Stream 1 Recommendations).

[/proposed bylaw]

Now it is explicitly required that all Chartering Organizations approve the Framework of Interpretation, whereas during WS1 it was agreed that for WS2 we would use exactly the same process of approval as for WS1.

What makes this even more divergent is that this clause is only added for Human Rights in the proposed bylaws and not for any other bylaw. Whereas there was no exceptional procedure for human rights discussed for WS2.

What I propose is to refer to the charter of the CCWG on Accountability for the decision making of all processes in WS2 (including the decision making on the FoI on Human Rights) and not create separate or new requirements or processes.

All the best,

Niels

-- 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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...

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