Hi Milton,

Am at IETF meeting so have a bit of limited time, so I focused on the HR
work. I don't see any changes between the HR langugage suggested in CCWG
report and the proposed bylaw language. So, no comments from me.

Best,

Niels

On 04/04/2016 07:21 PM, Mueller, Milton L wrote:
> I want to send these comments to the bylaws coordination group soon.
> There have been no substantive comments so far but I know it’s only 24
> hours. Should I wait? Is anyone planning to comment?
> 
> --MM
> 
>  
> 
> *From:* NCSG-Discuss [mailto:[log in to unmask]] *On Behalf
> Of *Mueller, Milton L
> *Sent:* Sunday, April 3, 2016 1:56 PM
> *To:* [log in to unmask]
> *Subject:* HR activists take note: A review of the draft bylaws on the
> mission, core values and commitments
> 
>  
> 
> THE PROPOSED NEW BYLAWS ON MISSION, CORE VALUES AND COMMITMENTS
> 
>  
> 
> We received the draft bylaws this morning. I have only had time to
> review Article 1, which is important because it contains the mission,
> etc. I advance my initial ideas and will get feedback here before
> posting to the CCWG or bylaws-coord list.
> 
>  
> 
> In general, the Mission, Core Values and Commitments bylaw language has
> been faithfully drafted to reflect the concerns of the CCWG. There are
> three major exceptions/problems. One is the section on renewals [Section
> 1.1, (d) (ii) F], the other two are Appendices G1 and G2.
> 
>  
> 
> Section 1.1 (d) (ii) F
> 
>  
> 
> "any renewals of agreements described in subsections (A)-(D) pursuant to
> their terms and conditions for renewal." This is an unacceptable
> deviation from the agreement we had regarding grandfathering. The idea
> was that _existing_ agreements would not be constrained by the new
> mission limitations, but that anything in the future would be subject to
> the new mission limitations. By extending existing exceptions or
> ambiguities into the future via renewals, we are making the new mission
> limitations practically irrelevant. We need to push to change this.
> 
>  
> 
> APPENDICES G1 and G2
> 
>  
> 
> The items in Appendix G are carve-outs from the mission limitations.
> That is, they expressly authorize certain actions as authorized and thus
> not challengable under the mission limitations. Therefore, we need to be
> extremely careful about what is included there. G1 refers to registrars,
> G2 to registries.
> 
>  
> 
> In G1, the bullet point on resolution of disputes exempts any and all
> ICANN policies regarding the USE of domain names. This broad exemption
> is unacceptable to NCSG. Furthermore, its meaning is unclear. I do not
> know what it means to say that dispute resolution is limited to disputes
> "regarding the registration of domain names (as opposed to the use of
> such domain names" and then to add "but including where such policies
> take into account use of the domain names)." The meaaning is unclear but
> we suspect it will be construed as a blanket exemption for imposing on
> registrars any policies regarding how domains are used, which could
> include content. I note that Appendix G2 applicable to registries does
> not contain this language. We want to get rid of it in G1 also.
> 
>  
> 
> The bullet point on cross-ownership restrictions needs to make it clear
> that restrictions are allowed only insofar as cross ownership affects
> the core values of security, stability or competition. That is, I see no
> basis for giving ICANN or the community a blanket right to restrict
> cross-ownership for any reason they want; such restrictions should only
> be used if they are a means to the end of promoting or preserving the
> mission or other core values, such as security, stability or
> competition. The best option would be to delete this part of the G! and
> G2 and make all cross-ownership policies subject to a mission challenge.
> Cross ownership policies that demonstrably advance the core vales of
> competition, security, stability, etc. should have no trouble passing
> this test; cross-ownership limitations that do not clearly meet this
> test should be subject to challenge.
> 
>  
> 
> The bullet points on "reservation of registered names" MUST be
> conditioned on respect for freedom of expression rights. I have no
> trouble with leaving names reservations in as a general exemption from
> mission challenges, but only if that power, which obviously can be
> abused or over-extended, is limited by concerns about openness, freedom
> and innovation on the Internet. Along these lines, we need to clarify
> the term "intellectual property" to say "legally recognized intellectual
> property rights."
> 
>  
> 
> Other Substantive issues
> 
> ------------------
> 
>  
> 
> Section 1.1 (a) (iii)
> 
> "Coordinates the allocation and assignment at the top-most level of
> Internet Protocol numbers and Autonomous System numbers." I thought IANA
> and IETF, not ICANN, do this. ICANN does it only insofar as it is
> contracted to be the IFO. Does this belong here?
> 
>  
> 
> Section 1.2 (a) (vi)
> 
> Please delete the words "that enhance ICANN’s effectiveness." I don’t
> see why these words are needed. They seem to undercut or make
> conditional the clear meaning of the first part of the sentence, which
> states that ICANN is accountable to its community through the mechanisms
> defined in the bylaws.
> 
>  
> 
> Section 1.2 (b) (vi)
> 
> modify the sentence to read: "governments and public authorities are
> responsible for public policy IN THEIR OWN JURISDICTION.."
> 
>  
> 
> Clarity, copy editing and redundancy issues:
> 
> -------------------------------------------
> 
> Section 1.1 (a) (i), first bullet point:
> 
> it says "facilitate the openness, interoperability, resilience, security
> and/or stability". No reason to have an "and/or" here, it should just be
> "and". We want them all, and in other parts of the bylaws where
> substantially the same list exists there is an "and."
> 
>  
> 
> Section 1.1 (a) (i), second bullet point:
> 
> "That are developed through a bottom-up consensus-based multistakeholder
> process and designed to ensure the stable and secure operation of the
> Internet’s unique names systems." This sentence should end at
> "multistakeholder process." The addition of "and designed to ensure the
> stable and secure operation of the Internet’s unique names systems" is
> redundant, it is already stated in the first bullet point.
> 
>  
> 
> Section 1.2 (a) (i)
> 
> Needlessly awkward and confusing wording. Why not just say “Administer
> the DNS in a way that preserves and enhances its operational stability,
> reliability, security, global interoperability, resilience and openness.” ?
> 
>  
> 
> Dr. Milton L. Mueller
> 
> Professor, School of Public Policy
> 
> Georgia Institute of Technology
> 
>  
> 
>  
> 

-- 
Niels ten Oever
Head of Digital

Article 19
www.article19.org

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