Hi Milton,

Thanks very much for your review of the draft bylaws.  I agree that the issue of mission limitation is a crucial one and we need to be sure that what CCWG agreed to is in fact what makes its way into the bylaws.   

After reviewing the materials, I’m concerned that ICANN’s lawyers are using “renewals” of the gtld agreement as a way to circumvent the CCWG’s carefully crafted mission limitations on ICANN, which was not something that CCWG agreed to in our deliberations regarding how to structure the “grandfathering” of out-of-mission policies that exist in today's ICANN agreements.  The “compromise” of permitting those existing agreements to go unchallenged for their mission-creep is being stretched to the point of cancelling out the mission limitations on ICANN.

There was also a question raised as to whether the "GAC carve-out" should apply in a board member removal process when the board member is subject to a removal process because of a vote in support of a GAC Consensus Resolution.  As the intent of the GAC carve-out is to prevent “two bites at the apple” by GAC on a single issue, giving GAC a vote to remove a board member who doesn’t comply with GAC advice seems to go against the intent of the GAC carve-out.  While CCWG didn’t explicitly deal with this issue one way or the other, now that it has been noticed, it needs to be thought through before we decide one way or the other.

But overall, from my initial read, the draft bylaws are pretty good in terms of being faithful to what CCWG agreed to.

Best,
Robin


> On Apr 5, 2016, at 7:08 AM, Mueller, Milton L <[log in to unmask]> wrote:
> 
> Let me reply to Avri, Ed and Niels in the same message.
> 
> Niels: good to know the HR language seems ok to you. Does Tatiana agree with you? Do you have any concerns about the mission limitation exemptions I identified?
> 
> Avri: The language about what was acceptable to NCSG was suggested, and comments sent to the list to see if people agreed. 
> 
> Avri and Ed: I am focused exclusively on the mission limitations language in Article 1. To provide feedback on that, you do not need to read every little detail in the 200+ page bylaws, e.g., how the escalation process works or how a SCWG is formed. Are you able to give me a sense of whether the mission has been limited properly or whether Appendix G exemptions are too broad?
> 
> --MM
> 
>> -----Original Message-----
>> From: Niels ten Oever [mailto:[log in to unmask]]
>> Sent: Monday, April 4, 2016 1:57 PM
>> To: Mueller, Milton L <[log in to unmask]>; NCSG-
>> [log in to unmask]
>> Subject: Re: HR activists take note: A review of the draft bylaws on the
>> mission, core values and commitments
>> 
>> 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
>> 
>> PGP fingerprint    8D9F C567 BEE4 A431 56C4
>>                   678B 08B5 A0F2 636D 68E9
>