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NCSG-Discuss <[log in to unmask]>
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Robin Gross <[log in to unmask]>
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Wed, 6 Apr 2016 16:11:21 +0000
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"Mueller, Milton L" <[log in to unmask]>
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"Mueller, Milton L" <[log in to unmask]>
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Thanks so much, Robin, I wanted to be sure that we did not agree to include renewals.

So I will send my comments to the CCWG list, and to avoid Avri getting crabby I will not say anything about NCSG but you can chime in and agree with them. 



--MM



> -----Original Message-----

> From: Robin Gross [mailto:[log in to unmask]]

> Sent: Tuesday, April 5, 2016 11:18 AM

> To: Mueller, Milton L <[log in to unmask]>

> Cc: [log in to unmask]

> Subject: Re: [NCSG-Discuss] HR activists take note: A review of the draft

> bylaws on the mission, core values and commitments

> 

> 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

> >




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