Comments on Article 1 of the draft bylaws
In general, the Mission, Core Values and Commitments bylaw language reflect the concerns of the CCWG. There are three major exceptions/problems. One is the section on renewals [Section 1.1, (d) (ii) F], the other two are Appendices G1 and G2. Additionally, I flag some unclear, awkward or redundant wording that needs to be fixed. Section 1.1 (d) (ii) F "any renewals of agreements described in subsections (A)-(D) pursuant to their terms and conditions for renewal." This is an unacceptable deviation from the agreement we had regarding grandfathering. The idea was that _existing_ agreements would not be constrained by the new mission limitations, but that anything in the future would be subject to the new mission limitations. By extending existing exceptions or ambiguities into the future via renewals, we are making the new mission limitations practically irrelevant. APPENDICES G1 and G2 The items in Appendix G are carve-outs from the mission limitations. That is, they expressly authorize certain actions as authorized and thus not challengable under the mission limitations. Therefore, we need to be extremely careful about what is included there. G1 refers to registrars, G2 to registries. In G1, the bullet point on resolution of disputes exempts any and all ICANN policies regarding the USE of domain names. This exemption is too broad. Furthermore, its meaning is unclear. I do not know what it means to say that dispute resolution is limited to disputes "regarding the registration of domain names (as opposed to the use of such domain names" and then to add "but including where such policies take into account use of the domain names)." The meaning is unclear but we suspect it will be construed as a blanket exemption for imposing on registrars any policies regarding how domains are used, which could include content. I note that Appendix G2 applicable to registries does not contain this language. We should get rid of it in G1 also. The bullet point on cross-ownership restrictions needs to make it clear that restrictions are allowed only insofar as cross ownership affects the core values of security, stability or competition. That is, I see no basis for giving ICANN or the community a blanket right to restrict cross-ownership for any reason they want; such restrictions should only be used if they are a means to the end of promoting or preserving the mission or other core values, such as security, stability or competition. The best option would be to delete this part of the G! and G2 and make all cross-ownership policies subject to a mission challenge. Cross ownership policies that demonstrably advance the core values of competition, security, stability, etc. should have no trouble passing this test; cross-ownership limitations that do not clearly meet this test should be subject to challenge. The bullet points on "reservation of registered names" MUST be conditioned on respect for freedom of expression rights. I have no trouble with leaving names reservations in as a general exemption from mission challenges, but only if that power, which obviously can be abused or over-extended, is limited by concerns about openness, freedom and innovation on the Internet. Along these lines, we need to clarify the term "intellectual property" to say "legally recognized intellectual property rights." Other Substantive issues ------------------------------ Section 1.1 (a) (iii) "Coordinates the allocation and assignment at the top-most level of Internet Protocol numbers and Autonomous System numbers." I thought IANA and IETF, not ICANN, do this. ICANN does it only insofar as it is contracted to be the IFO. Does this belong here? Looking forward to the comments of numbers and protocol communities here. Section 1.2 (a) (vi) Please delete the words "that enhance ICANN's effectiveness." I don't see why these words are needed. They seem to undercut or make conditional the clear meaning of the first part of the sentence, which states that ICANN is accountable to its community through the mechanisms defined in the bylaws. Section 1.2 (b) (vi) modify the sentence to read: "governments and public authorities are responsible for public policy IN THEIR OWN JURISDICTION." This is just a legal fact. Governments have no legal mandate for global public policy. Clarity, copy editing and redundancy issues: ---------------------------------------------------- Section 1.1 (a) (i), first bullet point: it says "facilitate the openness, interoperability, resilience, security and/or stability". No reason to have an "and/or" here, it should just be "and". We want them all, and in other parts of the bylaws where substantially the same list exists there is an "and." Section 1.1 (a) (i), second bullet point: "That are developed through a bottom-up consensus-based multistakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." This sentence should end at "multistakeholder process." The addition of "and designed to ensure the stable and secure operation of the Internet's unique names systems" is redundant, as it is already stated in the first bullet point. Section 1.2 (a) (i) Needlessly awkward and confusing wording. Why not just say "Administer the DNS in a way that preserves and enhances its operational stability, reliability, security, global interoperability, resilience and openness." ? Dr. Milton L Mueller Professor, School of Public Policy Georgia Institute of Technology Internet Governance Project http://internetgovernance.org
Sent from my LG G4 Kindly excuse brevity and typos On 6 Apr 2016 5:51 p.m., "Mueller, Milton L" <milton@gatech.edu> wrote:
Other Substantive issues ------------------------------
Section 1.1 (a) (iii) "Coordinates the allocation and assignment at the top-most level of
Internet Protocol numbers and Autonomous System numbers." I thought IANA and IETF, not ICANN, do this. ICANN does it only insofar as it is contracted to be the IFO. Does this belong here? Looking forward to the comments of numbers and protocol communities here.
SO: NOT speaking on behalf of any community but as I understand it, the IFO on paper for both communities will be that which they sign their respective agreements with. So far I believe the DUO will be signing with ICANN.
Section 1.2 (a) (vi) Please delete the words "that enhance ICANN's effectiveness." I don't see why these words are needed. They seem to undercut or make conditional the clear meaning of the first part of the sentence, which states that ICANN is accountable to its community through the mechanisms defined in the bylaws.
SO: Is this deletion suggested because that part was not in the proposal that was shipped to the NTIA?
Section 1.2 (b) (vi) modify the sentence to read: "governments and public authorities are responsible for public policy IN THEIR OWN JURISDICTION." This is just a legal fact. Governments have no legal mandate for global public policy.
SO: Well it depends on what "public policy" mean in this context as I think when we refer to community developed policies within ICANN, the word public is not part of it. So we say "global policies" this is how they are called within the RIR community as well (better put, global numbers policy or resource policy). I wonder who else makes binding public policies other than government?
Clarity, copy editing and redundancy issues: ----------------------------------------------------
Section 1.1 (a) (i), first bullet point: it says "facilitate the openness, interoperability, resilience, security and/or stability". No reason to have an "and/or" here, it should just be "and". We want them all, and in other parts of the bylaws where substantially the same list exists there is an "and."
SO: +1
Section 1.1 (a) (i), second bullet point: "That are developed through a bottom-up consensus-based multistakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." This sentence should end at "multistakeholder process." The addition of "and designed to ensure the stable and secure operation of the Internet's unique names systems" is redundant, as it is already stated in the first bullet point.
SO: I think I can also add my +1 to this so long as this was the intent of the proposal forwarded to NTIA
Section 1.2 (a) (i) Needlessly awkward and confusing wording. Why not just say "Administer the DNS in a way that preserves and enhances its operational stability, reliability, security, global interoperability, resilience and openness." ?
SO: I don't care much about how this is reworded so long as the "coordination" is not muted and also not out of scope of the intent of submitted proposal. Regards
Dr. Milton L Mueller Professor, School of Public Policy Georgia Institute of Technology
Internet Governance Project http://internetgovernance.org
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SO: NOT speaking on behalf of any community but as I understand it, the IFO on paper for both communities will be that which they sign their respective agreements with. So far I believe the DUO will be signing with ICANN. MM: Yes, we all know this well, Seun, but they COULD sign with anyone else they want. So ICANN’s role here is contingent, not a permanent and irrevocable part of its mandate. Therefore it should not be in part of its Articles of Incorporation defining its purpose. SO: Is this deletion suggested because that part was not in the proposal that was shipped to the NTIA? MM: That specific wording was not in the proposal, as far as I know. SO: Well it depends on what "public policy" mean in this context as I think when we refer to community developed policies within ICANN, the word public is not part of it. So we say "global policies" this is how they are called within the RIR community as well (better put, global numbers policy or resource policy). I wonder who else makes binding public policies other than government? MM: ICANN does, and the RIRs do. There is no operational distinction between a “global policy” and a “global public policy.” The question is who represents the global public? In multistakeholder institutions, the public is represented directly by their participation in the bottom up process, which includes governments. In governmental institutions, the public is represented by national governments who claim the exclusive right to speak for publics. My point is that governments do have that exclusivity within their jurisdiction. They do not have it outside their jurisdiction. In DNS and IP addressing policy, they are just another stakeholder, albeit the bylaws give them a specific role regarding policy advice.
Sent from my LG G4 Kindly excuse brevity and typos On 6 Apr 2016 6:50 p.m., "Mueller, Milton L" <milton@gatech.edu> wrote:
MM: Yes, we all know this well, Seun, but they COULD sign with anyone else they want. So ICANN’s role here is contingent, not a permanent and irrevocable part of its mandate. Therefore it should not be in part of its Articles of Incorporation defining its purpose.
SO: At least for numbers, what ICANN does also exceeds just the IFO role as it also approves/ratifies global policies et all. I think if they indeed decides to sign with someone else in future, then the existing governing documents will need to be updated one way or the other anyway so I don't see it as a significant issue and so we should reflect the current status. Perhaps I should also note that the specific wording about the section you refer was indeed proposed and agreed to by the DUO. While I am not suggesting that they cannot change their mind, I think going through that discussions again could open up a lengthy process and could also communicate the incompleteness of our proposal to NTIA.
SO: Well it depends on what "public policy" mean in this context as I think when we refer to community developed policies within ICANN, the word public is not part of it. So we say "global policies" this is how they are called within the RIR community as well (better put, global numbers policy or resource policy). I wonder who else makes binding public policies other than government?
MM: ICANN does, and the RIRs do. There is no operational distinction between a “global policy” and a “global public policy.”
SO: The point is that they don't call the output public policy but kind-of refer to the process to which the policy is developed as such. Nevertheless,....
The question is who represents the global public? In multistakeholder institutions, the public is represented directly by their participation in the bottom up process, which includes governments. In governmental institutions, the public is represented by national governments who claim the exclusive right to speak for publics. SO: ....I agree with the explanation above but your last sentence is what I think may have been the intent of the section you referenced...i.e they "claim"(using your word) to represent the public and utilises their developed "public policies" to represent their community's interest. Regards
SO: At least for numbers, what ICANN does also exceeds just the IFO role as it also approves/ratifies global policies et all. MM: correct. But that is not what the current language says. I think if they indeed decides to sign with someone else in future, then the existing governing documents will need to be updated one way or the other anyway so I don't see it as a significant issue MM: wrong. It will be extremely difficult to amend the articles and there is no reason to put in place now basic articles of incorporation that are not correct.
Sent from my LG G4 Kindly excuse brevity and typos On 6 Apr 2016 8:32 p.m., "Mueller, Milton L" <milton@gatech.edu> wrote:
SO: At least for numbers, what ICANN does also exceeds just the IFO role
as it also approves/ratifies global policies et all.
MM: correct. But that is not what the current language says.
SO: Well it seem to me that the word "coordinates" encompasses all that and it further enumerates what the coordination entails in 1.1aiii(A and B) No?
I think if they indeed decides to sign with someone else in future, then the existing governing documents will need to be updated one way or the other anyway so I don't see it as a significant issue
MM: wrong. It will be extremely difficult to amend the articles and there is no reason to put in place now basic articles of incorporation that are not correct.
SO: But really Prof, you are saying this should be updated now because the article will be difficult to update in future even though what you propose will not be the status post transition (assuming the DUO sign with ICANN). I just don't agree with the logic. Nevertheless, it's up to the respective communities to decide but I will just warn against too much modification of the intent our the proposal. Regards
Dear all, I have checked Article 1 and Annex D( Article 3) of the draft Bylaws and found several inconsistencies between these verified parts and the corresponding Recommendations as contained in the Supplemental Proposal of CCWG as Approved in Marrakesh. In particular, the use of GAC Carve-Out has been misinterpreted and expanded over several parts of ANNEX D which were not called in the CCWG proposal. The language and terms used are very awkward and difficult to understand. I do not see any other way unless we ( CCWG) verify the draft paragraph by paragraph and compare them with the corresponding CCWG Recommendations to ensure that they are accurately reflecting the exact terms, language, objectives of those Recommendations I draw the f kind attention of all GAC colleagues that any method, ways, means other than proof reading and exact verification of the draft of Bylaws in a paragraph by paragraph manner would risk inaccuracy, misinterpretation, and difficulties in application. The famous GAC Carve-Out is a clear extension of that concept other than community objections, if raised in regard with inconsistency of the Board action in that regard with Bylaws. The threshold for that limited circumstances SEEMED to be misunderstood due to the fact that when the Board Recall is invoked through IRP the support of 3 SO/Ac, excluding GAC and the objection of not more than one SO/AC, excluding GAC is required. However, if IRP is not invoked the support of four SO/AC ,excluding GAC is required. The latter was not mentioned or referred to in the ANNEX D Any way we need to check draft paragraph by Paragraph and ensure their consistencies with the corresponding Recommendations Kavouss 2016-04-06 22:07 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Sent from my LG G4 Kindly excuse brevity and typos On 6 Apr 2016 8:32 p.m., "Mueller, Milton L" <milton@gatech.edu> wrote:
SO: At least for numbers, what ICANN does also exceeds just the IFO role
as it also approves/ratifies global policies et all.
MM: correct. But that is not what the current language says.
SO: Well it seem to me that the word "coordinates" encompasses all that and it further enumerates what the coordination entails in 1.1aiii(A and B) No?
I think if they indeed decides to sign with someone else in future, then the existing governing documents will need to be updated one way or the other anyway so I don't see it as a significant issue
MM: wrong. It will be extremely difficult to amend the articles and there is no reason to put in place now basic articles of incorporation that are not correct.
SO: But really Prof, you are saying this should be updated now because the article will be difficult to update in future even though what you propose will not be the status post transition (assuming the DUO sign with ICANN).
I just don't agree with the logic. Nevertheless, it's up to the respective communities to decide but I will just warn against too much modification of the intent our the proposal.
Regards
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Dear Milton, Thank you for your detailed review. This is really important and we must be extremely cautious. Becky has responded on the "picket fence" issue you raise, and given the level of detail we have been to during the Recommendation 5 discussions, I don't think the approval of our recommendations was understood or expected to imply amendments (which would be undefined at this stage) of these annexes. I also want to ensure you get a response to the 3 substantive issues you mention. We can share the clarity and edit issues with the lawyers but I think we have agreed that this should be left to their judgment. Best, Mathieu Other Substantive issues ------------------------------ Section 1.1 (a) (iii) "Coordinates the allocation and assignment at the top-most level of Internet Protocol numbers and Autonomous System numbers." I thought IANA and IETF, not ICANN, do this. ICANN does it only insofar as it is contracted to be the IFO. Does this belong here? Looking forward to the comments of numbers and protocol communities here.
It is my understanding that the numbers and protocol communities have provided their input, which was taken into account, through the Bylaws Coordination Group. Indeed, should there be any issue, it should be raised.
These words are part of the CCWG Recommendation 5. Paragraph 20, page
Section 1.2 (a) (vi) Please delete the words "that enhance ICANN's effectiveness." I don't see why these words are needed. They seem to undercut or make conditional the clear meaning of the first part of the sentence, which states that ICANN is accountable to its community through the mechanisms defined in the bylaws. 5. As a consequence, I don't believe it is in our mandate to change them at this point. Section 1.2 (b) (vi) modify the sentence to read: "governments and public authorities are responsible for public policy IN THEIR OWN JURISDICTION." This is just a legal fact. Governments have no legal mandate for global public policy.
As above, this formulation is part of the CCWG Recommendation 5. Paragraph 22 page 5. As a consequence, I don't believe it is in our mandate to change them at this point.
-----Message d'origine----- De : bylaws-coord-bounces@icann.org [mailto:bylaws-coord-bounces@icann.org] De la part de Mueller, Milton L via bylaws-coord Envoyé : mercredi 6 avril 2016 18:36 À : CCWG Accountability Cc : 'bylaws-coord@icann.org' Objet : [bylaws-coord] Comments on Article 1 of the draft bylaws In general, the Mission, Core Values and Commitments bylaw language reflect the concerns of the CCWG. There are three major exceptions/problems. One is the section on renewals [Section 1.1, (d) (ii) F], the other two are Appendices G1 and G2. Additionally, I flag some unclear, awkward or redundant wording that needs to be fixed. Section 1.1 (d) (ii) F "any renewals of agreements described in subsections (A)-(D) pursuant to their terms and conditions for renewal." This is an unacceptable deviation from the agreement we had regarding grandfathering. The idea was that _existing_ agreements would not be constrained by the new mission limitations, but that anything in the future would be subject to the new mission limitations. By extending existing exceptions or ambiguities into the future via renewals, we are making the new mission limitations practically irrelevant. APPENDICES G1 and G2 The items in Appendix G are carve-outs from the mission limitations. That is, they expressly authorize certain actions as authorized and thus not challengable under the mission limitations. Therefore, we need to be extremely careful about what is included there. G1 refers to registrars, G2 to registries. In G1, the bullet point on resolution of disputes exempts any and all ICANN policies regarding the USE of domain names. This exemption is too broad. Furthermore, its meaning is unclear. I do not know what it means to say that dispute resolution is limited to disputes "regarding the registration of domain names (as opposed to the use of such domain names" and then to add "but including where such policies take into account use of the domain names)." The meaning is unclear but we suspect it will be construed as a blanket exemption for imposing on registrars any policies regarding how domains are used, which could include content. I note that Appendix G2 applicable to registries does not contain this language. We should get rid of it in G1 also. The bullet point on cross-ownership restrictions needs to make it clear that restrictions are allowed only insofar as cross ownership affects the core values of security, stability or competition. That is, I see no basis for giving ICANN or the community a blanket right to restrict cross-ownership for any reason they want; such restrictions should only be used if they are a means to the end of promoting or preserving the mission or other core values, such as security, stability or competition. The best option would be to delete this part of the G! and G2 and make all cross-ownership policies subject to a mission challenge. Cross ownership policies that demonstrably advance the core values of competition, security, stability, etc. should have no trouble passing this test; cross-ownership limitations that do not clearly meet this test should be subject to challenge. The bullet points on "reservation of registered names" MUST be conditioned on respect for freedom of expression rights. I have no trouble with leaving names reservations in as a general exemption from mission challenges, but only if that power, which obviously can be abused or over-extended, is limited by concerns about openness, freedom and innovation on the Internet. Along these lines, we need to clarify the term "intellectual property" to say "legally recognized intellectual property rights." Other Substantive issues ------------------------------ Section 1.1 (a) (iii) "Coordinates the allocation and assignment at the top-most level of Internet Protocol numbers and Autonomous System numbers." I thought IANA and IETF, not ICANN, do this. ICANN does it only insofar as it is contracted to be the IFO. Does this belong here? Looking forward to the comments of numbers and protocol communities here. Section 1.2 (a) (vi) Please delete the words "that enhance ICANN's effectiveness." I don't see why these words are needed. They seem to undercut or make conditional the clear meaning of the first part of the sentence, which states that ICANN is accountable to its community through the mechanisms defined in the bylaws. Section 1.2 (b) (vi) modify the sentence to read: "governments and public authorities are responsible for public policy IN THEIR OWN JURISDICTION." This is just a legal fact. Governments have no legal mandate for global public policy. Clarity, copy editing and redundancy issues: ---------------------------------------------------- Section 1.1 (a) (i), first bullet point: it says "facilitate the openness, interoperability, resilience, security and/or stability". No reason to have an "and/or" here, it should just be "and". We want them all, and in other parts of the bylaws where substantially the same list exists there is an "and." Section 1.1 (a) (i), second bullet point: "That are developed through a bottom-up consensus-based multistakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." This sentence should end at "multistakeholder process." The addition of "and designed to ensure the stable and secure operation of the Internet's unique names systems" is redundant, as it is already stated in the first bullet point. Section 1.2 (a) (i) Needlessly awkward and confusing wording. Why not just say "Administer the DNS in a way that preserves and enhances its operational stability, reliability, security, global interoperability, resilience and openness." ? Dr. Milton L Mueller Professor, School of Public Policy Georgia Institute of Technology Internet Governance Project http://internetgovernance.org _______________________________________________ bylaws-coord mailing list bylaws-coord@icann.org https://mm.icann.org/mailman/listinfo/bylaws-coord
participants (4)
-
Kavouss Arasteh -
Mathieu Weill -
Mueller, Milton L -
Seun Ojedeji