Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
All, For added clarity, I propose the following change: *Original Language in Revised Bylaws:* the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet*,* as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process*,* by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”). *Proposed Language:* the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”). *Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.* Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "*the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by by carrying out the mission set forth in the bylaws.*" [Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.] Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers. I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase. Greg On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org> wrote:
All,
The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July.
Trang
From: James Gannon <james@cyberinvasion.net> Date: Wednesday, July 6, 2016 at 2:24 PM To: Greg Shatan <gregshatanipc@gmail.com> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com>, Trang Nguyen <trang.nguyen@icann.org>, Yuko Green <yuko.green@icann.org>
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.
I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.
-JG
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.
I would recommend against filing these comments.
FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made.
If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.
SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.
Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.
Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.
The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.
In sum, I reiterate that I would recommend against filing these comments.
Best regards,
Greg
On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I agree. This is a legal document, and we should have the benefit of counsel on this.
Greg
On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:
While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.
-James
From: <accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly
*HOLLY J. GREGORY* Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
*SIDLEY AUSTIN LLP *+1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
All,
Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.
These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.
Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.
Bernard Turcotte
ICANN Staff Support for the CCWG Co-Chairs.
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thanks Greg. But, why would we not use the langugage we've agreed in the new Bylaws as it relates to GPI? 2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that *the global public interest will be determined through a bottom-up, multistakeholder process*. 2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making *to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest *and that those processes are accountable and transparent. Thanks. Matthew On 07/07/2016 06:05, Greg Shatan wrote:
All,
For added clarity, I propose the following change:
*_Original Language in Revised Bylaws_:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet*,*as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process*,*by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”).
*_Proposed Language_:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”). /Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process./
Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "*the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by by carrying out the mission set forth in the bylaws.*"
[Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.]
Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers.
I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase.
Greg
On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org <mailto:trang.nguyen@icann.org>> wrote:
All,
The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July.
Trang
From: James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> Date: Wednesday, July 6, 2016 at 2:24 PM To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Cc: "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>, Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>>, Trang Nguyen <trang.nguyen@icann.org <mailto:trang.nguyen@icann.org>>, Yuko Green <yuko.green@icann.org <mailto:yuko.green@icann.org>>
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.
I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.
-JG
From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> Cc: "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>, Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.
I would recommend against filing these comments.
FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a _requirement_ that a determination of the global public interest _must_ take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, /if/ a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language _requiring_ that such a determination be made.
If anyone believes that Final Recommendation 1, para 51 _requires_ the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.
SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.
Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.
Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.
The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.
In sum, I reiterate that I would recommend against filing these comments.
Best regards,
Greg
On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
I agree. This is a legal document, and we should have the benefit of counsel on this.
Greg
On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:
While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.
-James
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly
*HOLLY J. GREGORY* Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
*SIDLEY AUSTIN LLP *+1 212 839 5853 <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
All,
Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.
These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.
Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.
Bernard Turcotte
ICANN Staff Support for the CCWG Co-Chairs.
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Greg, Thank you, your proposed language is much clearer. I support that construction either as stated or using the CCWG phrasing for the BUMP as noted by Matthew. Best, Brett On Jul 7, 2016, at 3:03 AM, matthew shears <mshears@cdt.org<mailto:mshears@cdt.org>> wrote: Thanks Greg. But, why would we not use the langugage we've agreed in the new Bylaws as it relates to GPI? 2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that the global public interest will be determined through a bottom-up, multistakeholder process. 2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent. Thanks. Matthew On 07/07/2016 06:05, Greg Shatan wrote: All, For added clarity, I propose the following change: Original Language in Revised Bylaws: the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet, as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Proposed Language: the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by by carrying out the mission set forth in the bylaws." [Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.] Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers. I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase. Greg ________________________________ 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/> On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org<mailto:trang.nguyen@icann.org>> wrote: All, The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July. Trang From: James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> Date: Wednesday, July 6, 2016 at 2:24 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>>, Trang Nguyen <trang.nguyen@icann.org<mailto:trang.nguyen@icann.org>>, Yuko Green <yuko.green@icann.org<mailto:yuko.green@icann.org>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that. I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right. -JG From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> Cc: "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine. I would recommend against filing these comments. FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a requirement that a determination of the global public interest must take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, if a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language requiring that such a determination be made. If anyone believes that Final Recommendation 1, para 51 requires the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG. SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059<http://www.publiccounsel.org/publications?id=0059>). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding. Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required. Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand. The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself. In sum, I reiterate that I would recommend against filing these comments. Best regards, Greg On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I agree. This is a legal document, and we should have the benefit of counsel on this. Greg On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: While not able to certify anything, if there are issues that our counsel see I think its important that they are raised. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice SIDLEY AUSTIN LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Wednesday, July 06, 2016 3:27 PM To: Accountability Cross Community Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) All, Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership. These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions. Please respond to the list ASAP if you have comments as this public consultation closes in a few hours. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs. **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> _______________________________________________ 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://mm.icann.org/mailman/listinfo/accountability-cross-community> -- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 ________________________________ [Avast logo] <https://www.avast.com/antivirus> This email has been checked for viruses by Avast antivirus software. www.avast.com<https://www.avast.com/antivirus> _______________________________________________ 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
Matthew, How would you suggest revising my proposed language? Thanks! Greg On Thu, Jul 7, 2016 at 3:00 AM, matthew shears <mshears@cdt.org> wrote:
Thanks Greg. But, why would we not use the langugage we've agreed in the new Bylaws as it relates to GPI?
2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that *the global public interest will be determined through a bottom-up, multistakeholder process*.
2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making *to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest *and that those processes are accountable and transparent.
Thanks. Matthew
On 07/07/2016 06:05, Greg Shatan wrote:
All,
For added clarity, I propose the following change:
*Original Language in Revised Bylaws:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet*,* as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process*,* by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”).
*Proposed Language:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”). *Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.*
Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "*the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by by carrying out the mission set forth in the bylaws.*"
[Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.]
Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers.
I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase.
Greg
On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org> wrote:
All,
The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July.
Trang
From: James Gannon <james@cyberinvasion.net> Date: Wednesday, July 6, 2016 at 2:24 PM To: Greg Shatan <gregshatanipc@gmail.com> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com>, Trang Nguyen <trang.nguyen@icann.org>, Yuko Green <yuko.green@icann.org>
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.
I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.
-JG
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.
I would recommend against filing these comments.
FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made.
If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.
SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.
Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.
Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.
The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.
In sum, I reiterate that I would recommend against filing these comments.
Best regards,
Greg
On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I agree. This is a legal document, and we should have the benefit of counsel on this.
Greg
On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:
While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.
-James
From: <accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community < accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly
*HOLLY J. GREGORY* Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
*SIDLEY AUSTIN LLP *+1 212 839 5853 <%2B1%20212%20839%205853> holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
All,
Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.
These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.
Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.
Bernard Turcotte
ICANN Staff Support for the CCWG Co-Chairs.
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT)+ 44 771 2472987
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Greg, Matthew: That won't do. The original text refers to the GPI "in the operational stability of the Internet." That restriction should be clearly repeated in any reference to GPI elsewhere in the texts. Thus, expanding the multistakeholder role to "any such determination" risks inviting the expectation of mission creep for the ICANN multistakeholder community. I could well imagine that many governments - including those who are fundamentally supporting the multistakeholder principle - are by no means ready to delegate to the bottom-up ICANN community the determination of the GPI beyond that of the operational stability of the Internet. More generally, should the ICANN multistakeholder community wish to extend its reach beyond those narrowly defined functions, then a significant restructuring of its participation, relative weighting and competences would be required. Regards Christopher PS: Having picked up these threads after Helsinki, I wonder what is the status of the documents that are now being discussed. Actually, I had thought that the Articles of Incorporation and Bylaws (ICANN+PTI) had been finalised before Helsinki. What is this end-game, and when does the iCANN Board draw a line? On 07 Jul 2016, at 15:39, Greg Shatan <gregshatanipc@gmail.com> wrote:
Matthew,
How would you suggest revising my proposed language?
Thanks!
Greg
On Thu, Jul 7, 2016 at 3:00 AM, matthew shears <mshears@cdt.org> wrote: Thanks Greg. But, why would we not use the langugage we've agreed in the new Bylaws as it relates to GPI?
2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that the global public interest will be determined through a bottom-up, multistakeholder process. 2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.
Thanks. Matthew
On 07/07/2016 06:05, Greg Shatan wrote:
All,
For added clarity, I propose the following change:
Original Language in Revised Bylaws:
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet, as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”).
Proposed Language:
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.
Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by by carrying out the mission set forth in the bylaws."
[Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.]
Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers.
I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase.
Greg
On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org> wrote: All,
The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July.
Trang
From: James Gannon <james@cyberinvasion.net> Date: Wednesday, July 6, 2016 at 2:24 PM To: Greg Shatan <gregshatanipc@gmail.com> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert <thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com>, Trang Nguyen <trang.nguyen@icann.org>, Yuko Green <yuko.green@icann.org>
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.
I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.
-JG
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert <thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.
I would recommend against filing these comments.
FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a requirement that a determination of the global public interest must take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, if a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language requiring that such a determination be made.
If anyone believes that Final Recommendation 1, para 51 requires the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.
SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.
Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.
Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.
The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.
In sum, I reiterate that I would recommend against filing these comments.
Best regards,
Greg
On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: I agree. This is a legal document, and we should have the benefit of counsel on this.
Greg
On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote: While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.
-James
From: <accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly
HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Wednesday, July 06, 2016 3:27 PM To: Accountability Cross Community Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
All,
Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.
These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.
Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.
Bernard Turcotte
ICANN Staff Support for the CCWG Co-Chairs.
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
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Dear all, I keep trying to figure out how ICANN is supposed to operate on Day 1 of the amended By-Laws given that actions must be taken by the Board and further given that the bottom-up multistakeholder process to determine the Global Public Interest on particular issues takes years. Is Global Public Interest to be considered in connection with each PDP? Is there to be a separate PDP on defining Global Public Interest? Could the Board frozen from acting on issues, e.g. the Red Cross, unless and until the GPI is finally determined in this regard? Would they be in violation of the new By-Laws for voting one way or the other on this? Same question as to geo names. To my mind there is still a massive fiction going on to the effect that the Board does not make policy decisions or determine the Global Public Interest. It is absolutely inherent in the very structure of ICANN that the Board will receive potentially conflicting policy advice and will have to be the arbiter of such advice. Why have any “thresholds” for overturning either GNSO or GAC advice if this were untrue? The Board also receives advice directly from ALAC and from other sources, e.g. the European Commission. Nothing about the Accountabilty work changes this basic fact. The work just says that if enough people object to action taken by the Board, there is a mechanism for addressing that. Are we to suppose that it is in fact the processes available in the Empowered Community as a result of the Accountability work that will define the Global Public Interest “from time to time”? I am especially confused by the use of this language “from time to time’ with respect to determinations of the Global Public Interest. Although the community is making efforts to cooperate and communicate early as to policy matters, there really is not a set mechanism at present (nor will there be at the time of the IANA Transition) to measure Board action or hold the Board accountable to acting in the Global Public Interest because no one has defined it. In this regard, it is actually unfair to Board members to expect them to act in the absence of an express standard that has been developed by the Community. I think that if I were a Board member, I might refuse to act or to vote on an issue by simply saying, “well, I have to comply with the By-Laws but the GPI with respect to this issue has not yet been determined by the bottom-up Multistakeholder process.” Everyone acknowledges no definition of GPI is agreed at present. Why does anyone assume that ICANN can operate effectively on Day 1 of the new By-Laws? Lastly, I think it would be a “darned shame” if Holly and Rosemary did not opine on the final language that is recommended around the GPI, if only to prevent lawsuits against the SOs and ACs and their officers. Bedazzled, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D1D91F.7A0C8730] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Thursday, July 07, 2016 6:40 AM To: matthew shears Cc: Accountability Cross Community; Thomas Rickert Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Matthew, How would you suggest revising my proposed language? Thanks! Greg On Thu, Jul 7, 2016 at 3:00 AM, matthew shears <mshears@cdt.org<mailto:mshears@cdt.org>> wrote: Thanks Greg. But, why would we not use the langugage we've agreed in the new Bylaws as it relates to GPI? 2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that the global public interest will be determined through a bottom-up, multistakeholder process. 2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent. Thanks. Matthew On 07/07/2016 06:05, Greg Shatan wrote: All, For added clarity, I propose the following change: Original Language in Revised Bylaws: the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet, as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Proposed Language: the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by by carrying out the mission set forth in the bylaws." [Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.] Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers. I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase. Greg On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org<mailto:trang.nguyen@icann.org>> wrote: All, The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July. Trang From: James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> Date: Wednesday, July 6, 2016 at 2:24 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>>, Trang Nguyen <trang.nguyen@icann.org<mailto:trang.nguyen@icann.org>>, Yuko Green <yuko.green@icann.org<mailto:yuko.green@icann.org>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that. I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right. -JG From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> Cc: "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine. I would recommend against filing these comments. FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a requirement that a determination of the global public interest must take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, if a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language requiring that such a determination be made. If anyone believes that Final Recommendation 1, para 51 requires the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG. SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding. Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required. Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand. The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself. In sum, I reiterate that I would recommend against filing these comments. Best regards, Greg On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I agree. This is a legal document, and we should have the benefit of counsel on this. Greg On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: While not able to certify anything, if there are issues that our counsel see I think its important that they are raised. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice SIDLEY AUSTIN LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Wednesday, July 06, 2016 3:27 PM To: Accountability Cross Community Subject: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) All, Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership. These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions. Please respond to the list ASAP if you have comments as this public consultation closes in a few hours. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs. **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ 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 -- -------------- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987<tel:%2B%2044%20771%202472987> ________________________________ [Avast logo]<https://www.avast.com/antivirus> This email has been checked for viruses by Avast antivirus software. www.avast.com<https://www.avast.com/antivirus> ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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I don't see the issue. There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions.. There is a requirement that *if* the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process. There is no requirement that that the Global Public Interest be determined at a given time or that (if it is) that it be re-examined at fixed periods: therefore, it may be determined "from time to time." This is a phrase I have commonly seen in legal documents, used to indicate that something can happen at any time, and may be repeated at any time. Contrast it with "periodically," which strongly implies periodicity -- that something will happen at fixed intervals and not "from time to time." Acting in the Global Public Interest does not require an exhaustive determination of what the "Global Public Interest" is before actions are taken. Every non-profit that acts as a public benefit or public charity is required to act in the "public interest," yet I would be surprised if more than a few (if any) have gone through a process to make a determination of the "public interest." ICANN is no exception. The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothing new. It has functioned up until now and it will continue to function pretty much as it has in this regard, though mindful of the clarifications and changes brought about by the new Bylaws. If the multistakeholder community believes it is necessary or appropriate to take on the task of determining the Global Public Interest, it is now clear how that must be done -- by the multistakeholder community through an inclusive bottom-up multistakeholder community process. If the ICANN Board or staff believes it is appropriate for there to be a determination of the Global Public Interest, they can't do it themselves; they must turn to the multistakeholder community to make that determination through an inclusive bottom-up multistakeholder community process. Until that time, ICANN will go on as it has. Greg P.S. (and a tip o' the homburg hat to CW): There is also the question of what "Global Public Interest" we are determining. Strictly speaking, the Bylaws (old and new) refer to acting in the "global public interest in the operational stability of the Internet," which is to be done by carrying out the mission (once stated in the Articles but now only in the Bylaws). What does the "operational stability of the Internet" mean? Based on 17 years of experience, that should not be narrowly defined. If ICANN's interest was truly limited to keeping the pipes open and flowing, the whole New gTLD Program would be outside the mission. Any innovation would be aimed solely at keeping the trains running (e.g., IPv6) but not to making a market in domain names (at any level). I'm not proposing that this is a correct reading of the scope of ICANN's global public interest. Indeed, I think it should be clear that ICANN's mission is part of the equation, not merely the phrase about "operational staiblity." Unfortunately, that has been made less clear by removing the enumeration of the mission from the Articles; while reference is made to the mission as stated in the Bylaws, distance makes the connection seem attenuated even if it is not. In any event, any serious discussion of the Global Public Interest would have to start with the question of "The Global Public Interest in what?" *Gregory S. Shatan | Partner *McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873 C: 917-816-6428 F: 212-416-7613 gshatan@mccarter.com | www.mccarter.com BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Fri, Jul 8, 2016 at 4:48 PM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Dear all,
I keep trying to figure out how ICANN is supposed to operate on Day 1 of the amended By-Laws given that actions must be taken by the Board and further given that the bottom-up multistakeholder process to determine the Global Public Interest on particular issues takes years. Is Global Public Interest to be considered in connection with each PDP? Is there to be a separate PDP on defining Global Public Interest?
Could the Board frozen from acting on issues, e.g. the Red Cross, unless and until the GPI is finally determined in this regard? Would they be in violation of the new By-Laws for voting one way or the other on this? Same question as to geo names.
To my mind there is still a massive fiction going on to the effect that the Board does not make policy decisions or determine the Global Public Interest. It is absolutely inherent in the very structure of ICANN that the Board will receive potentially conflicting policy advice and will have to be the arbiter of such advice. Why have any “thresholds” for overturning either GNSO or GAC advice if this were untrue? The Board also receives advice directly from ALAC and from other sources, e.g. the European Commission. Nothing about the Accountabilty work changes this basic fact. The work just says that if enough people object to action taken by the Board, there is a mechanism for addressing that. Are we to suppose that it is in fact the processes available in the Empowered Community as a result of the Accountability work that will define the Global Public Interest “from time to time”?
I am especially confused by the use of this language “from time to time’ with respect to determinations of the Global Public Interest. Although the community is making efforts to cooperate and communicate early as to policy matters, there really is not a set mechanism at present (nor will there be at the time of the IANA Transition) to measure Board action or hold the Board accountable to acting in the Global Public Interest because no one has defined it. In this regard, it is actually unfair to Board members to expect them to act in the absence of an express standard that has been developed by the Community. I think that if I were a Board member, I might refuse to act or to vote on an issue by simply saying, “well, I have to comply with the By-Laws but the GPI with respect to this issue has not yet been determined by the bottom-up Multistakeholder process.” Everyone acknowledges no definition of GPI is agreed at present. Why does anyone assume that ICANN can operate effectively on Day 1 of the new By-Laws?
Lastly, I think it would be a “darned shame” if Holly and Rosemary did not opine on the final language that is recommended around the GPI, if only to prevent lawsuits against the SOs and ACs and their officers.
Bedazzled,
Anne
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
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*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Thursday, July 07, 2016 6:40 AM *To:* matthew shears *Cc:* Accountability Cross Community; Thomas Rickert
*Subject:* Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Matthew,
How would you suggest revising my proposed language?
Thanks!
Greg
On Thu, Jul 7, 2016 at 3:00 AM, matthew shears <mshears@cdt.org> wrote:
Thanks Greg. But, why would we not use the langugage we've agreed in the new Bylaws as it relates to GPI?
2.2.1. CCWG-Accountability Final Recommendation 1, para 51: The Articles of Incorporation will be amended to clarify that *the global public interest will be determined through a bottom-up, multistakeholder process*.
2.2.2. CCWG-Accountability Final Recommendation 5, para 153 (core values) 2: Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making *to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest *and that those processes are accountable and transparent.
Thanks. Matthew
On 07/07/2016 06:05, Greg Shatan wrote:
All,
For added clarity, I propose the following change:
*Original Language in Revised Bylaws**:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet*,* as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process*,* by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”).
*Proposed Language**:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”). *Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.*
Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "*the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by **by carrying out the mission set forth in the bylaws.*"
[Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.]
Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers.
I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase.
Greg
On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org> wrote:
All,
The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July.
Trang
*From: *James Gannon <james@cyberinvasion.net> *Date: *Wednesday, July 6, 2016 at 2:24 PM *To: *Greg Shatan <gregshatanipc@gmail.com> *Cc: *"Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com>, Trang Nguyen <trang.nguyen@icann.org>, Yuko Green <yuko.green@icann.org>
*Subject: *Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Hi All,
In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.
I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.
-JG
*From: *Greg Shatan <gregshatanipc@gmail.com> *Date: *Wednesday 6 July 2016 at 21:45 *To: *James Gannon <james@cyberinvasion.net> *Cc: *"Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com> *Subject: *Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.
I would recommend against filing these comments.
FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made.
If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.
SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.
Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.
Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.
The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.
In sum, I reiterate that I would recommend against filing these comments.
Best regards,
Greg
On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I agree. This is a legal document, and we should have the benefit of counsel on this.
Greg
On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:
While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.
-James
*From: *<accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> *Date: *Wednesday 6 July 2016 at 20:32 *To: *Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> *Subject: *Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly
*HOLLY J. GREGORY* Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
*SIDLEY AUSTIN LLP *+1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
All,
Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.
These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.
Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.
Bernard Turcotte
ICANN Staff Support for the CCWG Co-Chairs.
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On Fri, Jul 08, 2016 at 05:40:29PM -0400, Greg Shatan wrote:
the mission (once stated in the Articles but now only in the Bylaws). What does the "operational stability of the Internet" mean? Based on 17 years of experience, that should not be narrowly defined. If ICANN's interest was truly limited to keeping the pipes open and flowing, the whole New gTLD Program would be outside the mission. Any innovation would be aimed solely at keeping the trains running (e.g., IPv6) but not to making a market in domain names (at any level).
I thought a significant part of the rather tortured discussion we had about the Mission was precisely to counter that the tendency of ICANN (or others) to think that its scope of interest -- public or otherwise -- in the stability of the Internet is properly limited. The Internet doesn't need ICANN or anyone else to invent innovations for the Internet -- the operators and inventors of Internet technology are quite good at doing that all on their own, as I think the 17 years of experience equally demonstrates.
In any event, any serious discussion of the Global Public Interest would have to start with the question of "The Global Public Interest in what?"
This I couldn't agree with more. A -- Andrew Sullivan ajs@anvilwalrusden.com
On Fri, Jul 08, 2016 at 08:17:03PM -0400, Andrew Sullivan wrote:
I thought a significant part of the rather tortured discussion we had about the Mission was precisely to counter that the tendency of ICANN (or others) to think that its scope of interest -- public or otherwise -- in the stability of the Internet is properly limited.
Well, that sentence got lost on its way to its conclusion. Teach me to make dinner in between starting and ending an email. What I meant, of course, was that the discussion was to counter the tendency of some to think that ICANN's scope is unlimited guardianship of the Internet, and therefore to limit the scope properly to the important but narrow work that ICANN actually does. My apologies. A -- Andrew Sullivan ajs@anvilwalrusden.com
There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions.. There is a requirement that if the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process. MM: Agreed. a determination of the "public interest." ICANN is no exception. The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothing new MM: No, it hasn’t. Check if you wish: https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en ICANN was incorporated as a California “public benefit corporation” (i.e., a nonprofit) but the “global public interest” standard is quite new and those of us with knowledge of history of utility regulation in the U.S. understand where a public interest standard comes from and what are its implications (basically, blanket grant of authority to determine what is good for us). Most of us don’t want ICANN to have that power. Some people still can’t cough out an acknowledgment that ICANN is a regulator. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
ICANN cannot determine the Global Public Interest alone, that is the work of the international law community world-wide, taking into account present methodology for developing customary international law. I am working on a study on that because I find this concept strong enough to act as a mediator between so different interests of international community in its now different forms – states, civil society, business etc. but also takes into account present major stakeholders like state or inter-governmental international organisations. In my humble opinion, it is the phrase for respect of international law for new international actors on the global plane like ICANN. Besides the regulatory concept of this term, the other elements of adjudication and enforcement should be not forgotten. Best, Erich Schweighofer Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L Gesendet: Samstag, 09. Juli 2016 05:15 An: Greg Shatan; Aikman-Scalese, Anne Cc: Thomas Rickert; Accountability Cross Community Betreff: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions.. There is a requirement that if the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process. MM: Agreed. a determination of the "public interest." ICANN is no exception. The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothing new MM: No, it hasn’t. Check if you wish: https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en ICANN was incorporated as a California “public benefit corporation” (i.e., a nonprofit) but the “global public interest” standard is quite new and those of us with knowledge of history of utility regulation in the U.S. understand where a public interest standard comes from and what are its implications (basically, blanket grant of authority to determine what is good for us). Most of us don’t want ICANN to have that power. Some people still can’t cough out an acknowledgment that ICANN is a regulator. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
On Jul 9, 2016, at 4:50 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:
ICANN cannot determine the Global Public Interest alone, that is the work of the international law community world-wide, taking into account present methodology for developing customary international law. I am working on a study on that because I find this concept strong enough to act as a mediator between so different interests of international community in its now different forms – states, civil society, business etc. but also takes into account present major stakeholders like state or inter-governmental international organisations. In my humble opinion, it is the phrase for respect of international law for new international actors on the global plane like ICANN. Besides the regulatory concept of this term, the other elements of adjudication and enforcement should be not forgotten.
To the extent that there is “international law” that is germane to ICANN’s activities, one would expect participants that are familiar with such law (and its relevance to a particular policy under consideration) to inform the community in the normal course of policy development. The community, via the structures of ICANN, is certainly free to determine how ICANN should "pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet”, and this includes achieving an appropriate outcome after thoughtful consideration of all participants views. If that outcome somehow differs from a magical and singular "Global Public Interest” that is rooted in international law, then so be. The latter has, as you appropriately observe, its own element of enforcement completely orthogonal to ICANN which may be readily utilized in the elusive case of actual global alignment in international law. /John Disclaimer: my views alone - please recycle these electrons when done with them.
Quoting from the the text of the Draft ICANN's Articles of Incorporation "“the Corporation shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”).” Public interest, in contemporary times of normative dominance of democracy, is democratically determined.. ICANN's prosed AoC by saying that in relations to ICANN's areas of competence, it "will be determined through an inclusive bottom-up, multistakeholder community process" (with the word "democratic" conspicuously absent) is setting up a new political paradigm, which I consider is post-democratic. While democracy admits only natural human beings, and their collectives, as bearer of political rights and legitimacy, and thus included in process of determining public interest, the main innovation of 'multistakeholder process' or multistakeholderism is to give corporates an equal voice as people. Developing this new post-democratic political paradigm is playing with fire. I hope democratic minded people here realise it. In the US, where the Supreme court decision, in Citizen United, gave political rights to corporation similar to that of natural persons, today, according to a 2015 Bloomberg poll, nationwide, 80 percent of Republicans and 83 percent of Democrats oppose /Citizens United/. It seems that 17 states in the US have already called for upturning this judgement. Recent is a bipartisan majority of New York Senate and Assembly calling for constitutional amendment to achieve this. Significantly, letters from both partiesassert that <http://www.yesmagazine.org/people-power/in-new-york-republicans-and-democrat...> corporations “are not entitled to the same rights and protections as natural persons under the Constitution..." A multistakeholder process, on the other hand, precisely does that, give corporations the same political rights as natural people (it is in fact the primary purpose of multistakeholderism as applied beyond technical management to public policy or "public interest determining" processes). This is even more so when the term "democratic" is glaring absent form the description of the process of determining global public interest. My question is: why cannot we add "democratic" to the description of the process, and make it "global public interest will be determined by bottom-up democratic multistakeholder community processes" ? "Democratic multistakeholder" is also the term used in Net Mundial Statement. Multistakeholder processes are fine for technical management, and for determining technical policies, but not for determining "public interest" which is the same as laying "public policy", which is simply operationalisation of the "determined public interest" in specific ways. Public interest and public policy can only be democratically determined, while, admittedly, specific processes and means of such democratic determination will vary (and can never be perfect). But the name and normative description of these processes must remain democratic, which then tells us to what normative standards it aspires, and can be expected to move towards. To repeat, I find it an extremely dangerous precedent, in fact a political innovation, to lay out that public interest and public policy will be determined in ways that are not democratic, but where corporations have political rights similar to natural persons, which is what a multistakeholder process, or multistakeholderism is about. I do hope that at least democratically inclined civil society groups, and governments, will not approve of such post-democratic political innovations. parminder On Saturday 09 July 2016 02:20 PM, Schweighofer Erich wrote:
ICANN cannot determine the Global Public Interest alone, that is the work of the international law community world-wide, taking into account present methodology for developing customary international law. I am working on a study on that because I find this concept strong enough to act as a mediator between so different interests of international community in its now different forms – states, civil society, business etc. but also takes into account present major stakeholders like state or inter-governmental international organisations. In my humble opinion, it is the phrase for respect of international law for new international actors on the global plane like ICANN. Besides the regulatory concept of this term, the other elements of adjudication and enforcement should be not forgotten.
Best,
Erich Schweighofer
*Von:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Mueller, Milton L *Gesendet:* Samstag, 09. Juli 2016 05:15 *An:* Greg Shatan; Aikman-Scalese, Anne *Cc:* Thomas Rickert; Accountability Cross Community *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions..
There is a requirement that /if/ the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process.
MM: Agreed.
a determination of the "public interest." ICANN is no exception. The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothingnew
MM: No, it hasn’t. Check if you wish: https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en
ICANN was incorporated as a California “public benefit corporation” (i.e., a nonprofit) but the “global public interest” standard is quite new and those of us with knowledge of history of utility regulation in the U.S. understand where a public interest standard comes from and what are its implications (basically, blanket grant of authority to determine what is good for us). Most of us don’t want ICANN to have that power. Some people still can’t cough out an acknowledgment that ICANN is a regulator.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I totally agree with ErichActually, the "Global Interest" cannot be defined and agreed on, outside the international LawBestMona From: erich.schweighofer@univie.ac.at To: milton@gatech.edu; gregshatanipc@gmail.com; AAikman@lrrc.com Date: Sat, 9 Jul 2016 08:50:04 +0000 CC: thomas@rickert.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) ICANN cannot determine the Global Public Interest alone, that is the work of the international law community world-wide, taking into account present methodology for developing customary international law. I am working on a study on that because I find this concept strong enough to act as a mediator between so different interests of international community in its now different forms – states, civil society, business etc. but also takes into account present major stakeholders like state or inter-governmental international organisations. In my humble opinion, it is the phrase for respect of international law for new international actors on the global plane like ICANN. Besides the regulatory concept of this term, the other elements of adjudication and enforcement should be not forgotten. Best, Erich Schweighofer Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L Gesendet: Samstag, 09. Juli 2016 05:15 An: Greg Shatan; Aikman-Scalese, Anne Cc: Thomas Rickert; Accountability Cross Community Betreff: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions.. There is a requirement that if the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process. MM: Agreed. a determination of the "public interest." ICANN is no exception. The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothing new MM: No, it hasn’t. Check if you wish: https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en ICANN was incorporated as a California “public benefit corporation” (i.e., a nonprofit) but the “global public interest” standard is quite new and those of us with knowledge of history of utility regulation in the U.S. understand where a public interest standard comes from and what are its implications (basically, blanket grant of authority to determine what is good for us). Most of us don’t want ICANN to have that power. Some people still can’t cough out an acknowledgment that ICANN is a regulator. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)? In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. The purpose of that process is to reach a consensus on the issue at hand, and not to perform a test against some gold standard benchmark of “global public interest”. Of course, with the passage of time, both inside ICANN and elsewhere a body of “case evidence” will build to assist that process. In the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest. Sam Lanfranco, NPOC/CSIH -- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca Skype: slanfranco blog: http://samlanfranco.blogspot.com Phone: +1 613-476-0429 cell: +1 416-816-2852
fully support Sam's comments below. Marilyn Cade To: accountability-cross-community@icann.org From: sam@lanfranco.net Date: Sun, 10 Jul 2016 08:52:42 -0400 CC: thomas@rickert.net Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)? In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. The purpose of that process is to reach a consensus on the issue at hand, and not to perform a test against some gold standard benchmark of “global public interest”. Of course, with the passage of time, both inside ICANN and elsewhere a body of “case evidence” will build to assist that process. In the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest. Sam Lanfranco, NPOC/CSIH -- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca Skype: slanfranco blog: http://samlanfranco.blogspot.com Phone: +1 613-476-0429 cell: +1 416-816-2852 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I love the comparaison you make with justice. As for justice, we need a broad set of principles to be defined The purpose of the process is to reach consensus based on those principles. Reaching a consensus on the issue at hand without having the set of principles will give a result according to the power (money, time to spend on the discussion, etc.) of each stakeholder. The « Global Public Interest » is needed to avoid that the ICANN policy or practice is captured by political, commercial, and/or any other particular interest. So if we limit it to reaching a consensus, we may see political or commercial interest dominate the consensus for the reasons I mentioned. That consensus is necessary and should be based on the so called « set of broad principles ». ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 10 juil. 2016 à 13:52, Sam Lanfranco <sam@lanfranco.net> a écrit :
At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)?
In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. C
In the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest.
Sam Lanfranco, NPOC/CSIH
-- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca <mailto:Lanfran@Yorku.ca> Skype: slanfranco blog: http://samlanfranco.blogspot.com <http://samlanfranco.blogspot.com/> Phone: +1 613-476-0429 cell: +1 416-816-2852 _______________________________________________ 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://mm.icann.org/mailman/listinfo/accountability-cross-community>
I confirm Tijami.Without clear concepts and principles, there is no chance for a "Global Public Interest".Despite the fact that “public interest “ is a general broad term, it is always decided upon weighing expected gains and potential losses associated with a decision or a policy. Hence, besides defining principles and concepts, there is a need, to have an independent party who can have a say, on what is the “global public internet” in issues related to ICANN’s decisions and policies.SincerelyMona From: tijani.benjemaa@topnet.tn Date: Sun, 10 Jul 2016 19:22:31 +0100 To: sam@lanfranco.net CC: thomas@rickert.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) I love the comparaison you make with justice. As for justice, we need a broad set of principles to be definedThe purpose of the process is to reach consensus based on those principles. Reaching a consensus on the issue at hand without having the set of principles will give a result according to the power (money, time to spend on the discussion, etc.) of each stakeholder. The « Global Public Interest » is needed to avoid that the ICANN policy or practice is captured by political, commercial, and/or any other particular interest. So if we limit it to reaching a consensus, we may see political or commercial interest dominate the consensus for the reasons I mentioned. That consensus is necessary and should be based on the so called « set of broad principles ». -----------------------------------------------------------------------------Tijani BEN JEMAAExecutive DirectorMediterranean Federation of Internet Associations (FMAI)Phone: +216 98 330 114 +216 52 385 114----------------------------------------------------------------------------- Le 10 juil. 2016 à 13:52, Sam Lanfranco <sam@lanfranco.net> a écrit :At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)?In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. CIn the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest. Sam Lanfranco, NPOC/CSIH -- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca Skype: slanfranco blog: http://samlanfranco.blogspot.com Phone: +1 613-476-0429 cell: +1 416-816-2852_______________________________________________Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, I think I disagree. I think the understanding of ICANN's position on the global interest always depends on the bottom-up multistakeholder understanding of that public interest within the confines of its mission. I think that we can define a framework that helps us discover the public interest within the context of a particular issue and the mission. A set of principles, beyond those at the highest level, seem to be a holy grail that we can search for but that will continue to elude us. On the other hand it will always also be necessary to measure our understanding of the public interest in policies and behavior with regard to our commitment to the mission and to the impact on the fundamental human rights we plan to respect. Essentially understanding the public interest can only work if we see it as a continual process of discovery and bottom-up policy development according to ever improving bottom-up multistakeholder process. avri On 13-Jul-16 05:48, Dr. Mona Al-achkar JAbbour wrote:
I confirm Tijami. Without clear concepts and principles, there is no chance for a "Global Public Interest".
Despite the fact that “public interest “ is a general broad term, it is always decided upon weighing expected gains and potential losses associated with a decision or a policy.
Hence, besides defining principles and concepts, there is a need, to have an independent party who can have a say, on what is the “global public internet” in issues related to ICANN’s decisions and policies.
Sincerely
Mona
------------------------------------------------------------------------ From: tijani.benjemaa@topnet.tn Date: Sun, 10 Jul 2016 19:22:31 +0100 To: sam@lanfranco.net CC: thomas@rickert.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
I love the comparaison you make with justice.
As for justice, we need a broad set of principles to be defined The purpose of the process is to reach consensus based on those principles. Reaching a consensus on the issue at hand without having the set of principles will give a result according to the power (money, time to spend on the discussion, etc.) of each stakeholder.
The « Global Public Interest » is needed to avoid that the ICANN policy or practice is captured by political, commercial, and/or any other particular interest. So if we limit it to reaching a consensus, we may see political or commercial interest dominate the consensus for the reasons I mentioned. That consensus is necessary and should be based on the so called « set of broad principles ».
----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 10 juil. 2016 à 13:52, Sam Lanfranco <sam@lanfranco.net <mailto:sam@lanfranco.net>> a écrit :
At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)?
In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. C
In the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest.
Sam Lanfranco, NPOC/CSIH
-- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca <mailto:Lanfran@Yorku.ca> Skype: slanfranco blog: http://samlanfranco.blogspot.com <http://samlanfranco.blogspot.com/> Phone: +1 613-476-0429 cell: +1 416-816-2852
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I agree with Avri. Also: eventhough it might not in all cases be clear what the global public interest is, often it is very clear what it is not. Best, Niels On 07/13/2016 02:46 PM, avri doria wrote:
Hi,
I think I disagree. I think the understanding of ICANN's position on the global interest always depends on the bottom-up multistakeholder understanding of that public interest within the confines of its mission. I think that we can define a framework that helps us discover the public interest within the context of a particular issue and the mission. A set of principles, beyond those at the highest level, seem to be a holy grail that we can search for but that will continue to elude us. On the other hand it will always also be necessary to measure our understanding of the public interest in policies and behavior with regard to our commitment to the mission and to the impact on the fundamental human rights we plan to respect.
Essentially understanding the public interest can only work if we see it as a continual process of discovery and bottom-up policy development according to ever improving bottom-up multistakeholder process.
avri
On 13-Jul-16 05:48, Dr. Mona Al-achkar JAbbour wrote:
I confirm Tijami. Without clear concepts and principles, there is no chance for a "Global Public Interest".
Despite the fact that “public interest “ is a general broad term, it is always decided upon weighing expected gains and potential losses associated with a decision or a policy.
Hence, besides defining principles and concepts, there is a need, to have an independent party who can have a say, on what is the “global public internet” in issues related to ICANN’s decisions and policies.
Sincerely
Mona
------------------------------------------------------------------------ From: tijani.benjemaa@topnet.tn Date: Sun, 10 Jul 2016 19:22:31 +0100 To: sam@lanfranco.net CC: thomas@rickert.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
I love the comparaison you make with justice.
As for justice, we need a broad set of principles to be defined The purpose of the process is to reach consensus based on those principles. Reaching a consensus on the issue at hand without having the set of principles will give a result according to the power (money, time to spend on the discussion, etc.) of each stakeholder.
The « Global Public Interest » is needed to avoid that the ICANN policy or practice is captured by political, commercial, and/or any other particular interest. So if we limit it to reaching a consensus, we may see political or commercial interest dominate the consensus for the reasons I mentioned. That consensus is necessary and should be based on the so called « set of broad principles ».
----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 10 juil. 2016 à 13:52, Sam Lanfranco <sam@lanfranco.net <mailto:sam@lanfranco.net>> a écrit :
At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)?
In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. C
In the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest.
Sam Lanfranco, NPOC/CSIH
-- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca <mailto:Lanfran@Yorku.ca> Skype: slanfranco blog: http://samlanfranco.blogspot.com <http://samlanfranco.blogspot.com/> Phone: +1 613-476-0429 cell: +1 416-816-2852
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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
+ 1 Avri and Niels On 13/07/2016 13:59, Niels ten Oever wrote:
I agree with Avri. Also: eventhough it might not in all cases be clear what the global public interest is, often it is very clear what it is not.
Best,
Niels
On 07/13/2016 02:46 PM, avri doria wrote:
Hi,
I think I disagree. I think the understanding of ICANN's position on the global interest always depends on the bottom-up multistakeholder understanding of that public interest within the confines of its mission. I think that we can define a framework that helps us discover the public interest within the context of a particular issue and the mission. A set of principles, beyond those at the highest level, seem to be a holy grail that we can search for but that will continue to elude us. On the other hand it will always also be necessary to measure our understanding of the public interest in policies and behavior with regard to our commitment to the mission and to the impact on the fundamental human rights we plan to respect.
Essentially understanding the public interest can only work if we see it as a continual process of discovery and bottom-up policy development according to ever improving bottom-up multistakeholder process.
avri
On 13-Jul-16 05:48, Dr. Mona Al-achkar JAbbour wrote:
I confirm Tijami. Without clear concepts and principles, there is no chance for a "Global Public Interest".
Despite the fact that “public interest “ is a general broad term, it is always decided upon weighing expected gains and potential losses associated with a decision or a policy.
Hence, besides defining principles and concepts, there is a need, to have an independent party who can have a say, on what is the “global public internet” in issues related to ICANN’s decisions and policies.
Sincerely
Mona
------------------------------------------------------------------------ From: tijani.benjemaa@topnet.tn Date: Sun, 10 Jul 2016 19:22:31 +0100 To: sam@lanfranco.net CC: thomas@rickert.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
I love the comparaison you make with justice.
As for justice, we need a broad set of principles to be defined The purpose of the process is to reach consensus based on those principles. Reaching a consensus on the issue at hand without having the set of principles will give a result according to the power (money, time to spend on the discussion, etc.) of each stakeholder.
The « Global Public Interest » is needed to avoid that the ICANN policy or practice is captured by political, commercial, and/or any other particular interest. So if we limit it to reaching a consensus, we may see political or commercial interest dominate the consensus for the reasons I mentioned. That consensus is necessary and should be based on the so called « set of broad principles ».
----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 10 juil. 2016 à 13:52, Sam Lanfranco <sam@lanfranco.net <mailto:sam@lanfranco.net>> a écrit :
At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)?
In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. C
In the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest.
Sam Lanfranco, NPOC/CSIH
-- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca <mailto:Lanfran@Yorku.ca> Skype: slanfranco blog: http://samlanfranco.blogspot.com <http://samlanfranco.blogspot.com/> Phone: +1 613-476-0429 cell: +1 416-816-2852
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I fully agree with Avri and Niels. Best, Keith
On Jul 13, 2016, at 9:01 AM, Niels ten Oever <lists@nielstenoever.net> wrote:
I agree with Avri. Also: eventhough it might not in all cases be clear what the global public interest is, often it is very clear what it is not.
Best,
Niels
On 07/13/2016 02:46 PM, avri doria wrote: Hi,
I think I disagree. I think the understanding of ICANN's position on the global interest always depends on the bottom-up multistakeholder understanding of that public interest within the confines of its mission. I think that we can define a framework that helps us discover the public interest within the context of a particular issue and the mission. A set of principles, beyond those at the highest level, seem to be a holy grail that we can search for but that will continue to elude us. On the other hand it will always also be necessary to measure our understanding of the public interest in policies and behavior with regard to our commitment to the mission and to the impact on the fundamental human rights we plan to respect.
Essentially understanding the public interest can only work if we see it as a continual process of discovery and bottom-up policy development according to ever improving bottom-up multistakeholder process.
avri
On 13-Jul-16 05:48, Dr. Mona Al-achkar JAbbour wrote: I confirm Tijami. Without clear concepts and principles, there is no chance for a "Global Public Interest".
Despite the fact that “public interest “ is a general broad term, it is always decided upon weighing expected gains and potential losses associated with a decision or a policy.
Hence, besides defining principles and concepts, there is a need, to have an independent party who can have a say, on what is the “global public internet” in issues related to ICANN’s decisions and policies.
Sincerely
Mona
------------------------------------------------------------------------ From: tijani.benjemaa@topnet.tn Date: Sun, 10 Jul 2016 19:22:31 +0100 To: sam@lanfranco.net CC: thomas@rickert.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
I love the comparaison you make with justice.
As for justice, we need a broad set of principles to be defined The purpose of the process is to reach consensus based on those principles. Reaching a consensus on the issue at hand without having the set of principles will give a result according to the power (money, time to spend on the discussion, etc.) of each stakeholder.
The « Global Public Interest » is needed to avoid that the ICANN policy or practice is captured by political, commercial, and/or any other particular interest. So if we limit it to reaching a consensus, we may see political or commercial interest dominate the consensus for the reasons I mentioned. That consensus is necessary and should be based on the so called « set of broad principles ».
----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 10 juil. 2016 à 13:52, Sam Lanfranco <sam@lanfranco.net <mailto:sam@lanfranco.net>> a écrit :
At the risk of restating the obvious in simple terms I am taking a whack at the issue of ICANN and the public interest (global or otherwise). There is no agreed upon definitive definition of the public interest. This is not because there are different competing definitions but because of the inherent nature of the notion itself. The public interest is not like an element (iron, copper, helium) in the periodic chart where there is a fine grained molecular test of whether something is in, or not in, the public interest. It is a concern across a broad scope of human existence for the impact of policies and practices carried out by institutions, and in some cases individuals. Does an action support, or counter, the public interest (i.e., can I raise chickens in my urban back yard)?
In ICANN, it is appropriate to have a commitment to policies and actions in the global public interest, without a defined definition of global public interest. That is why there is reference to the multistakeholder community through an inclusive bottom-up multistakeholder community process. Here is where a nuance is important. The task of that process is not to craft an ICANN definitive definition of the global public interest. The task of that process is to stand ready to be invoked whenever it appears that an ICANN policy or practice is not consistent with some element of the global public interest. C
In the case of society and justice, where there is no definitive definition of justice, a broad set of principles exist and on a case by case basis the objective is that “justice has to be seen to be done”. In the case of ICANN and a commitment to the global public interest, on a policy and practice case by case basis, the global public interest has to be seen to be served. To repeat, the task of the ICANN multistakeholder community is to remain vigilant with respect to policies and practices as they impact on the global public interest and remain as the defenders of those interests within the work of ICANN. In doing so it will benefit from the case evidence build up within ICANN and elsewhere, but its task is not to pursue a quest for a definitive definition of the global public interest.
Sam Lanfranco, NPOC/CSIH
-- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca <mailto:Lanfran@Yorku.ca> Skype: slanfranco blog: http://samlanfranco.blogspot.com <http://samlanfranco.blogspot.com/> Phone: +1 613-476-0429 cell: +1 416-816-2852
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On Jul 13, 2016, at 8:46 AM, avri doria <avri@apc.org> wrote:
Hi,
I think I disagree. I think the understanding of ICANN's position on the global interest always depends on the bottom-up multistakeholder understanding of that public interest within the confines of its mission. I think that we can define a framework that helps us discover the public interest within the context of a particular issue and the mission. A set of principles, beyond those at the highest level, seem to be a holy grail that we can search for but that will continue to elude us.
Avri - I believe I agree with you as well. To elaborate, I believe that the proper functioning of the Internet is in the global public interest, and (re-scoping specifically to ICANN’s mission) I believe that the stable and secure operation of the Internet’s unique identifier systems is similarly in the global public interest. I am not adverse to a set of high-level principles which outline what constitutes the "stable and secure operation of the Internet’s unique identifier systems”, but the determination of the various tradeoffs required in the application of such principles to any specific issue should properly occur in the multistakeholder policy development process. /John Disclaimer: my views alone - caveat emptor
Hello Avri,
Essentially understanding the public interest can only work if we see it as a continual process of discovery and bottom-up policy development according to ever improving bottom-up multistakeholder process.
Agreed. It evolves over time, in the context of our mission. Regards, Bruce Tonkin
Besides that it may just be a case of "I know it when Imsee it" what "International Law" specifically would be used to define it. el -- Sent from Dr Lisse's iPad mini 4
On 10 Jul 2016, at 13:40, Dr. Mona Al-achkar JAbbour <maj_aj@hotmail.com> wrote:
I totally agree with Erich Actually, the "Global Interest" cannot be defined and agreed on, outside the international Law Best Mona [...]
It's rare for international law to apply to individuals or companies, unless you are suspected of war crimes, like Tony Blair or his American counterparts (who now will not travel outside the US), or unless you are involved (as ICANN is) in international private law, which is mst contractual in nature. A literal reading of ICANN 3.0's Articles/By-laws shows that the 'global public interest' is something that the ICANN Community will decide - there is no external normative rule. So, expandin upon Dr Lisse's critique . . . . . please provide any authority for the proposition that the 'global interest' can be defined or agreed upon WITHIN 'the international law', which you seem to state it can. On 10/07/16 19:46, Dr Eberhard W Lisse wrote:
Besides that it may just be a case of "I know it when Imsee it" what "International Law" specifically would be used to define it.
el
-- Sent from Dr Lisse's iPad mini 4
On 10 Jul 2016, at 13:40, Dr. Mona Al-achkar JAbbour <maj_aj@hotmail.com <mailto:maj_aj@hotmail.com>> wrote:
I totally agree with Erich Actually, the "Global Interest" cannot be defined and agreed on, outside the international Law Best Mona [...]
Dr. Jabbour and Schweighofer: International law is law among states. ICANN is not a state and, unlike an intergovernmental organization, its participants are not states, but primarily private sector stakeholders. Those stakeholders make policy themselves, via a bottom up process. Insofar as ICANN makes "law" it is global and applies only to the global DNS, it is not "international." Thus the concept of "international law" as applied to any determination of GPI made within ICANN is quite irrelevant - except perhaps when ICANN does something that abrogates existing international law, which its bylaws tell it not to do. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology From: Dr. Mona Al-achkar JAbbour [mailto:maj_aj@hotmail.com] Sent: Sunday, July 10, 2016 7:41 AM To: Schweighofer Erich <erich.schweighofer@univie.ac.at>; Mueller, Milton L <milton@gatech.edu>; Greg Shatan <gregshatanipc@gmail.com>; Aikman-Scalese, Anne <aaikman@lrrc.com> Cc: Thomas Rickert <thomas@rickert.net>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) I totally agree with Erich Actually, the "Global Interest" cannot be defined and agreed on, outside the international Law Best Mona ________________________________ From: erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at> To: milton@gatech.edu<mailto:milton@gatech.edu>; gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>; AAikman@lrrc.com<mailto:AAikman@lrrc.com> Date: Sat, 9 Jul 2016 08:50:04 +0000 CC: thomas@rickert.net<mailto:thomas@rickert.net>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) ICANN cannot determine the Global Public Interest alone, that is the work of the international law community world-wide, taking into account present methodology for developing customary international law. I am working on a study on that because I find this concept strong enough to act as a mediator between so different interests of international community in its now different forms - states, civil society, business etc. but also takes into account present major stakeholders like state or inter-governmental international organisations. In my humble opinion, it is the phrase for respect of international law for new international actors on the global plane like ICANN. Besides the regulatory concept of this term, the other elements of adjudication and enforcement should be not forgotten. Best, Erich Schweighofer Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L Gesendet: Samstag, 09. Juli 2016 05:15 An: Greg Shatan; Aikman-Scalese, Anne Cc: Thomas Rickert; Accountability Cross Community Betreff: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC) There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions.. There is a requirement that if the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process. MM: Agreed. a determination of the "public interest." ICANN is no exception. The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothing new MM: No, it hasn't. Check if you wish: https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en ICANN was incorporated as a California "public benefit corporation" (i.e., a nonprofit) but the "global public interest" standard is quite new and those of us with knowledge of history of utility regulation in the U.S. understand where a public interest standard comes from and what are its implications (basically, blanket grant of authority to determine what is good for us). Most of us don't want ICANN to have that power. Some people still can't cough out an acknowledgment that ICANN is a regulator. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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
I agree with Milton. In the interests of discourse, however, I would ask Drs. Schweighofer and Jabbour: What "international law" are you referring to? It's clearly not the law among states, as Milton notes. It's also not international private law, which, as Nigel notes, is primarily contractual in nature. Perhaps a more detailed explanation would help resuscitate the point. Quite a number of people have used the term "international law" in discussions about ICANN policy and policy-making, but I've yet to see any cogent explanation of what body or sector of law and law-making they are referring to. Maybe we have a failure of communication, rather than a failure of concept. I might also ask, what "international law community" is being referred to? Academics? Practicing lawyers? Government and/or IGO representatives? All of the above? As John Curran notes, members of that community are more than welcome to participate in this community's processes (and I assume that these emails may be a sign, however tentative, of that engagement). A generic determination of the "Global Public Interest" (if such a thing is even possible) by an "international law community" would only be of interest as a high level input to our processes. As I noted before, any determination of the Global Public Interest must begin with a discussion of context, i.e., "the Global Public Interest in what?" Greg On Sun, Jul 10, 2016 at 9:21 PM, Mueller, Milton L <milton@gatech.edu> wrote:
Dr. Jabbour and Schweighofer:
International law is law among states. ICANN is not a state and, unlike an intergovernmental organization, its participants are not states, but primarily private sector stakeholders. Those stakeholders make policy themselves, via a bottom up process. Insofar as ICANN makes “law” it is global and applies only to the global DNS, it is not “international.”
Thus the concept of “international law” as applied to any determination of GPI made within ICANN is quite irrelevant - except perhaps when ICANN does something that abrogates existing international law, which its bylaws tell it not to do.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
*From:* Dr. Mona Al-achkar JAbbour [mailto:maj_aj@hotmail.com] *Sent:* Sunday, July 10, 2016 7:41 AM *To:* Schweighofer Erich <erich.schweighofer@univie.ac.at>; Mueller, Milton L <milton@gatech.edu>; Greg Shatan <gregshatanipc@gmail.com>; Aikman-Scalese, Anne <aaikman@lrrc.com> *Cc:* Thomas Rickert <thomas@rickert.net>; Accountability Cross Community <accountability-cross-community@icann.org> *Subject:* RE: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
I totally agree with Erich
Actually, the "Global Interest" cannot be defined and agreed on, outside the international Law
Best
Mona ------------------------------
From: erich.schweighofer@univie.ac.at To: milton@gatech.edu; gregshatanipc@gmail.com; AAikman@lrrc.com Date: Sat, 9 Jul 2016 08:50:04 +0000 CC: thomas@rickert.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
ICANN cannot determine the Global Public Interest alone, that is the work of the international law community world-wide, taking into account present methodology for developing customary international law. I am working on a study on that because I find this concept strong enough to act as a mediator between so different interests of international community in its now different forms – states, civil society, business etc. but also takes into account present major stakeholders like state or inter-governmental international organisations. In my humble opinion, it is the phrase for respect of international law for new international actors on the global plane like ICANN. Besides the regulatory concept of this term, the other elements of adjudication and enforcement should be not forgotten.
Best,
Erich Schweighofer
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Mueller, Milton L *Gesendet:* Samstag, 09. Juli 2016 05:15 *An:* Greg Shatan; Aikman-Scalese, Anne *Cc:* Thomas Rickert; Accountability Cross Community *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions..
There is a requirement that *if* the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process.
MM: Agreed.
a determination of the "public interest." ICANN is no exception. The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothing new
MM: No, it hasn’t. Check if you wish: https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en
ICANN was incorporated as a California “public benefit corporation” (i.e., a nonprofit) but the “global public interest” standard is quite new and those of us with knowledge of history of utility regulation in the U.S. understand where a public interest standard comes from and what are its implications (basically, blanket grant of authority to determine what is good for us). Most of us don’t want ICANN to have that power. Some people still can’t cough out an acknowledgment that ICANN is a regulator.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
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I like this change. Even if it would not make a difference in court, language that is unambiguous even to non-lawyers should be preferred (assuming of course it remains unambiguous also to lawyers). Tapani On Jul 07 01:05, Greg Shatan (gregshatanipc@gmail.com) wrote:
All,
For added clarity, I propose the following change:
*Original Language in Revised Bylaws:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet*,* as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process*,* by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”).
*Proposed Language:*
the Corporation shall, except as limited by Article 54 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”). *Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.*
Basically, what I've done is to remove the long inserted phrase about determining the GPI (between the two red commas in the original language above) and then try to "unpack" that phrase into sentences. Thrusting this phrase in the middle of the sentence was clearly causing two comprehension problems, even though the drafting was technically correct. In addition to the previously discussed comprehension problem around the word "may," the mid-sentence insertion of the phrase obscured the connection between the final words ("by carrying out the mission...") and the thought that it was completing ("the Corporation shall ... pursue the charitable and public purposes of [x] and [y]..."). Removing the inserted phrase makes the primary narrative thrust of the sentence clear: "*the Corporation shall ... pursue the charitable and public purposes of [x] and [y] by by carrying out the mission set forth in the bylaws.*"
[Note: I'm using "x" and "y" instead of the actual language to make the sentence shorter and easier to follow.]
Lawyers love long sentences (I've seen some go on for 20 lines or more), and they love inserting explanatory or qualifying phrases in the middle of the sentences, such as this phrase inserted solely to show how such phrases are inserted, so that such sentences can run on. Lawyers will also use the word "such" in a somewhat futile effort to indicate that the word following (in this case, "sentences") was already used in the sentence and is being referred to again with the same meaning. These drafting habits unfortunately make following the main thread of a sentence increasingly difficult. They also force awkward phrasing of the inserted clauses, since these clauses have to be drafted as referential fragments, rather than self-sufficient sentences. Ultimately, readability and clarity of meaning suffers.
I hope that my suggested change clarifies the main thread of the sentence, and also clarifies the meaning of the inserted phrase.
Greg
On Wed, Jul 6, 2016 at 8:38 PM, Trang Nguyen <trang.nguyen@icann.org> wrote:
All,
The ICANN restated articles of incorporation is not on the critical path so we are able to accommodate an extension of the public comment period. The close of the public comment period has been extended to 13 July.
Trang
From: James Gannon <james@cyberinvasion.net> Date: Wednesday, July 6, 2016 at 2:24 PM To: Greg Shatan <gregshatanipc@gmail.com> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com>, Trang Nguyen <trang.nguyen@icann.org>, Yuko Green <yuko.green@icann.org>
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Hi All, In light of this and some other conversations I think that we need to take at least 24hours to review this comment and ensure that it is a consensus comment of the CCWG before we file it, Im not sure if a 24-48hr delay in the filing of the CCWG comment would have a major impact downstream in the timelines, I have cc’d Trang and Yuko who may be able to respond to that.
I think that we may have let the AoI slip under our radar a little with all of the parallel work that is going on and we need to make sure that we get this comment correct first time and to do that we nee to do it with a full set of inputs and considerations by the CCWG members and I don’t feel we have this yet. I know that we are working to tight deadlines, but we need to make sure that we do this right.
-JG
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday 6 July 2016 at 21:45 To: James Gannon <james@cyberinvasion.net> Cc: "Gregory, Holly" <holly.gregory@sidley.com>, Thomas Rickert < thomas@rickert.net>, Mathieu Weill <mathieu.weill@afnic.fr>, " leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte < turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
It's unfortunate that we don't have time to run this by our counsel, as I would be interested in their views. Here are mine.
I would recommend against filing these comments.
FIRST, I disagree with the second point raised. Substituting "shall" for "may" would incorrectly imply that there is a *requirement* that a determination of the global public interest *must* take place. We have not asked for such a requirement and we have not specified any such requirement, which would render this statement nebulous, ambiguous and undefined. As currently drafted, *if* a determination of the global public interest takes place it will be done by the multistakeholder community using a bottom-up multistakeholder process, but there is (properly) no language *requiring* that such a determination be made.
If anyone believes that Final Recommendation 1, para 51 *requires* the initiation of a process to determine the global public interest, that should either be a part of Work Stream 2 or a huge implementation item for Work Stream 1. As far as I can see, it is neither -- which further proves that changing "may" to "shall" goes beyond the recommendations of the CCWG.
SECOND, I also disagree with the third point raised. "Organized" is commonly used in Articles of Incorporation (indeed, in some states, such as Massachusetts, a non-profit corporation files Articles of Organization rather than Articles of Incorporation). As our counsel pointed out on the last call, the California official form for Articles of Incorporation uses the term "organized." (See attached) It is a best practice to stick closely to the official language provided by the jurisdiction -- here it is "organized." This is demonstrated in model California Articles of Incorporation prepared by Public Counsel, a pro bono law firm, and available online (see attached or http://www.publiccounsel.org/publications?id=0059). It would be far preferable if we were to accept the clarification that "organized" is what's used in this circumstance, rather than to recommend a change that is at best meaningless and at worst creates the potential for confusion (since one always looks for meaning in any change, and confusion could fill the void created by the meaninglessness of this change). To paraphrase Shakespeare, I don't think the confusion is in the document, it is in ourselves (or at least in some of us) -- and it would be better for us to adjust our understanding of the document, rather than to adjust the document to suit our misunderstanding.
Of course, the language of the CCWG comment is relatively undemanding -- we only ask that "counsel" (whose counsel? ICANN's?) or "the drafters" (why the difference?) review the language. We do not justify our quasi-recommendations of changes, other than by saying that we are confused by the word "organized" and by demonstrating that we are confused about what is permissive and what is required.
Frankly, I'm far from sure that this comment is widely supported, other than by apathy or lack of time. I think it would be a mistake for either of these two recommendations (?) to be adopted, and I hope that counsel/the drafters, upon further review, let the original drafting stand.
The only thing I agree with is the trivial change from "further" to "future," which at least does not make matters worse. This is hardly worth a comment by itself.
In sum, I reiterate that I would recommend against filing these comments.
Best regards,
Greg
On Wed, Jul 6, 2016 at 3:49 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I agree. This is a legal document, and we should have the benefit of counsel on this.
Greg
On Wed, Jul 6, 2016 at 3:36 PM, James Gannon <james@cyberinvasion.net> wrote:
While not able to certify anything, if there are issues that our counsel see I think its important that they are raised.
-James
From: <accountability-cross-community-bounces@icann.org> on behalf of "Gregory, Holly" <holly.gregory@sidley.com> Date: Wednesday 6 July 2016 at 20:32 To: Thomas Rickert <thomas@rickert.net>, Mathieu Weill < mathieu.weill@afnic.fr>, "leonfelipe@sanchez.mx" <leonfelipe@sanchez.mx>, Accountability Cross Community <accountability-cross-community@icann.org>, Bernard Turcotte <turcotte.bernard@gmail.com> Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
Dear Co-Chairs and CCWG-Accountability Members and Participants, Please let us know if you want Sidley and/or Adler to comment on this before you post it. We will not do so unless instructed to. Holly
*HOLLY J. GREGORY* Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
*SIDLEY AUSTIN LLP *+1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Bernard Turcotte *Sent:* Wednesday, July 06, 2016 3:27 PM *To:* Accountability Cross Community *Subject:* [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
All,
Please find attached the draft comment to the ICANN public consultation on the Articles of Incorporation from the leadership.
These comments are based on the questions raised during the CCWG meeting on the AOC and in consideration of Sam Eisner's response to those questions.
Please respond to the list ASAP if you have comments as this public consultation closes in a few hours.
Bernard Turcotte
ICANN Staff Support for the CCWG Co-Chairs.
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participants (21)
-
Aikman-Scalese, Anne -
Andrew Sullivan -
avri doria -
Bruce Tonkin -
Christopher Wilkinson -
Dr Eberhard W Lisse -
Dr. Mona Al-achkar JAbbour -
Drazek, Keith -
Greg Shatan -
John Curran -
Marilyn Cade -
matthew shears -
Mueller, Milton L -
Niels ten Oever -
Nigel Roberts -
parminder -
Sam Lanfranco -
Schaefer, Brett -
Schweighofer Erich -
Tapani Tarvainen -
Tijani BEN JEMAA