[PC-NCSG] Deadline extended for ICANN's restated Article of Incorporation to July 13

[matthew shears]

Dear all

Following some extensive e-mailing in the last hours of the public 
comment on the CCWG list about the need for more time, ICANN has agreed 
to extend this deadline to _July 13_.  I filed the attached just before 
the deadline, then received the mail from Ed, followed the last minute 
exchanges on the CCWG list and then saw that the deadline had been 
extended.  I did not confirm submission as a result, so the attached 
comment was _not_ filed.

There has been some to-ing and fro-ing on the CCWG list as Ed noted in 
his mail.  The CCWG's outside counsel is comfortable with the use of 
"may from time to time" for example.  They state in a mail to the CCWG: 
"From a legal drafting perspective, the word ?may? is appropriate in 
this context, specifically as it is used in the phrase ?may be 
determined from time to time? which indicates that the determination is 
made based on when the need for a determination arises. Use of ?may?  in 
this context does not suggest that someone other than the 
multistakeholder community has a decision right."  Personally, I would 
normally be fine with the CCWG out side counsel's findings but in this 
case I still have concerns.  To elaborate:

The CCWG in its final proposal stated the following (my highlighting and 
underlining):

    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*.

    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.

These two statements above are pretty clear.  The statement in para 51 
is definitive using the word "will"; the statement in para 153 
reinforces that through the use of the word "ensure".

It would seem to me that the restated AoI does not reflect the language 
above (which is a different matter than whether or not the "may" is an 
appropriate legal term).  In my view the proposed AoI langauge goes 
further than clarifying and in so doing dilutes the language in para 51 
above:

    Text from the Draft Restated Articles of Incorporation: ?, 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 (i) coordinating the
    assignment of Internet technical parameters as needed to maintain
    universal connectivity on the Internet; (ii) performing and
    overseeing functions related to the coordination of the Internet
    Protocol ("IP") address space; (iii) performing and overseeing
    functions related to the coordination of the Internet domain name
    system ("DNS"), including the development of policies for
    determining the circumstances under which new top-level domains are
    added to the DNS root system; (iv) overseeing operation of the
    authoritative Internet DNS root server system; and (v) engaging in
    any other related lawful activity in furtherance of items (i)
    through (iv), *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*?).

In the attached NCSG I added a comment suggesting using the specific 
language from paras 51 and 153 as a replacement for the language in the 
restated AoI.  I think this would be the simplest appraoch and also 
remain consistent with what we as the CCWG and broader community have 
agreed.

We can still file the attached.  But I feel further discussion is 
warranted on this matter in the PC.

Your thoughts are very welcome.

Matthew

-------- Forwarded Message --------
Subject: 	NCSG comment on restated AoI
Date: 	Wed, 6 Jul 2016 22:57:49 +0100
From: 	matthew shears <mshears at cdt.org>
To: 	comments-draft-restated-articles-incorporation-27may16 at icann.org



Please see attached.

Matthew Shears
NCSG - PC


--------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987




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