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

[Edward Morris]

Hi Matt,
  
 I don't agree that the Bylaws and the AoI are inconsistent with each other.
  
 Articles and Bylaws have different purposes and functions. The Articles state that the GPI can be determined by the community through BUMP if it so desires. That's general and flexible, as Articles of Incorporation should be. The Bylaws are more specific, as Bylaws should be, ensuring that BUMP is used to ensure GPI. Nowhere, though, is it mandated that the GPI must be determined, just that if it is done so BUMP must be used. This is the same in both the Articles and the Bylaws.
  
 One note about hierarchy: the Articles are the superior legal instrument and Bylaws need to conform to it, not the other way around.  We're actually doing things a bit backwards here in the transition proposals.
  
 I am opposed to using the word "shall" in any context here as is offered in the proposed NCSG statement. "Shall" requires establishment of a GPI and that is not faithful to either the proposed Articles or the Bylaws. Legally it would open up questions of timing and legitimacy of the validity of any definition ( what would an IRP consider a minimum acceptable definition, if the community is required to establish one?) and opens the question as how to proceed in parts of the Articles and Bylaws  mentioning GPI if the BUMP is unable to agree on a GPI definition in a timely manner. 
  
 I have no problem in supporting the Articles as written. As counsel has written "From a legal drafting perspective, the word "may" is appropriate in this context, specifically as 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".
  
 This opinion was supported by both Sidley and Austin and Adler and Colvin, the two law firms engaged by the CCWG, both of which have a fiduciary obligation to act faithfully and in the best interest of this community. I believe they have done so here.
  
 The NCSG proposal is a solution to a problem that does not exist. In fact, by proposing to require community determination of the GPI through use of the word "shall" it creates a number of potential problems that the current formula does not risk. The proposed Articles are superior to the NCSG proposal and as such I do not support submission of the proposed statement on behalf of the NCSG.
  
 Thanks for all of your hard work on this, Matt. Although I do agree with our lawyers that we don't have any real problem here, I do appreciate your concern and perceptions and appreciate your effort in bringing them to the attention of all of us.
  
 Respectfully,
  
 Ed Morris
  
  
  

----------------------------------------
 From: "matthew shears" <mshears at cdt.org>
Sent: Friday, July 8, 2016 12:51 PM
To: "PC-NCSG" <pc-ncsg at ipjustice.org>
Subject: [PC-NCSG] Deadline extended for ICANN's restated Article of Incorporation to July 13   

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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