Hi Rafik,

 

I want to thank Arshad for this exceptionally well written comment. It’s great to see new people involved in writing comments for the NCSG. Unfortunately, I am unable to support submission of the comment because I strongly believe we should oppose, not support, deferral of the ccNSO Review.

 

Unusual for the GNSO, we had a rather robust discussion of this matter on the Council list when the ccNSO request first became known to us. That discussion thread may be located here: https://mm.icann.org/pipermail/council/2017-April/019874.html . As you can see, there was some diversity of opinion amongst GNSO Councilors who participated in the discourse.

 

It is my view, and that generally of those who oppose the ccNSO request, that the new ICANN Bylaws do not allow for an extension of the type proposed by the ccNSO. Section 4.4 of the ICANN Bylaws reads:

 

These periodic reviews shall be conducted no less frequently than every five years, based on feasibility as determined by the Board.

 

Simple statutory construction indicates that the reviews must (note use of the word ‘shall’) be conducted ‘no less’ than every five years, with the subordinate clause (‘based on feasibility’…) allowing the Board to determine when such reviews should occur within the five year period based upon the feasibility of conducting such a review. This section of the Bylaws does not allow the Board to delay these important accountability measures past the five-year marker nor should we grant the Board the power to do so.

 

The Review is already late. The last ccNSO Review was released in March 2011. Delaying the initiation of this mandatory review until August 2018 would cause the Review to be about 2.5 years past schedule – and that is giving the most liberal interpretation possible to the dates proposed.

 

I also can not support the reasoning given in the proposed NCSG comment for supporting the delay: that we need to hold off on the Review pending implementation of recommendations from the ccNSO Review of six plus years ago. This rationale would give SOAC’s incentives not to implement future review recommendations promptly and would actually subject to more frequent reviews those SOAC’s who do things properly. That doesn’t make any sense to me.

 

On a more macro perspective, I’m concerned about the number of attempts to delay, ignore or attempt to change the specifics of the accountability section of the new Bylaws. Suggestions concerning the recent proposal concerning the Board Governance Committee, the various difficulties involving the RDS Review and now this: I’d suggest that we really need to try to faithfully implement the accountability provisions of the new Bylaws and then suggest changes, if needed, after, not before, we’ve tried to follow them as written.

 

Kind Regards,

 

Ed Morris