[Internal-cg] bylaws feedback

Mueller, Milton L milton at gatech.edu
Sat Apr 30 15:16:09 UTC 2016

Ok, I have had time to read the transcript. I am even more strongly committed to developing a comment as ICG.

Alissa said on the call that 1.1.d.(ii) “creates a giant loophole that allows all of the work that was done to more precisely define the mission statement of ICANN in these bylaws ...to be completely contravened by whatever gets written into the ICANN PTI contract Because what this is says is that no one in the future will ever be able to challenge that contract on the basis that it contravenes the mission.”

[and, I might add, the RZM contract, and renewals of registry contracts].

The only answer I saw to this was that we don’t need to worry about it because the PTI contract will be put up for public comment.

Alissa also made the point:
"this memo ... seems to imply that ... the most important thing out of all of this is that ICANN can continue to perform the IANA function. And I think what we all learned in (unintelligible) in terms of what the ICG proposal says is that in fact that is not the most important thing. The most important thing is that the IANA functions can continue to be performed by some operator who’s capable of performing them according to the service level agreements that the community ...has. And those two things are not the same. And I certainly –I will put my IETF hat on here for a second and say that I think from an IETF perspective the important thing is that a protocol parameters functions can continue to be performed, not that they can only continue to be performed by ICANN."

I don't think this argument of Alissa was ever answered. It seems like there could be ways of drafting these sections that do not commit us to a specific contract but makes it clear that performance of the IANA functions is not challengable as a mission violation so long as the community actually wants ICANN to perform those functions.

Indeed, I am having trouble understanding the threat that these sections are supposed to avoid.

However, the most dangerous mission-limitation-busting potential is in the renewals section (F). This is problematic partly because the CCWG never agreed to exempt renewals. We agreed to grandfather existing agreements, for the sake of stability. But the assumption was that if anything in these existing agreements contravened the new mission limitations, that they COULD be challenged during a renewal process. A contract renewal with a registry could include all kinds of regulatory measures that exceed the mission, and if these measures are framed as a "renewal of an existing agreement" then ICANN could in principle get away with anything.

So I hope we are able to make it clear to ICANN and the CCWG that these provisions need to be changed..

From: Alissa Cooper [mailto:alissa at cooperw.in]
Sent: Friday, April 29, 2016 3:00 PM
To: Mueller, Milton L <milton at gatech.edu>
Cc: Lynn St.Amour <Lynn at LStAmour.org>; IANA etc etcCoordination Group <internal-cg at ianacg.org>
Subject: Re: [Internal-cg] bylaws feedback

For folks following this issue, it is definitely worth reading the transcript or listening to the recording of the last CCWG call: https://community.icann.org/pages/viewpage.action?pageId=58730392

The more that I have thought about this, it has become clear to me that the core issue here is that there is a portion of bylaws section 1.1(d) that is not called for either by our proposal or by the CCWG proposal, as Lynn says. Had the content of 1.1(d)(ii)(B-E) been discussed as part of the transition proposal development, I think the concerns being raised now would have been raised then, and the whole community would have had time to sort them out. (I note that there was an extended discussion about RA/RAA agreements in the CCWG and that did result in text in its proposal in paragraph 147, which is reflected in 1.1(d)(ii)(A). But that does not extend to any other agreements.) Sections 1.1(d)(ii)(B-E) seem to have been created out of whole cloth by the bylaws drafting team, and that was not within their remit in my opinion. The Bylaws are just supposed to implement the proposals.

I think there are substantive issues too, but from an ICG perspective we may or may not want to focus on those.

I would support sending a comment. We sent a message early on during the bylaws drafting and received no response, and the call to discuss this didn’t even occur until after the bylaws were put out for public comment.


On Apr 29, 2016, at 11:17 AM, Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>> wrote:

I support what you are saying. I take it you are not satisfied with the lawyers' explanation? I was not able to attend the 0:400 call a few days ago so was not able to question them about it or hear their answers.


-----Original Message-----
From: Lynn St.Amour [mailto:Lynn at LStAmour.org]
Sent: Friday, April 29, 2016 1:55 PM
To: Alissa Cooper <alissa at cooperw.in<mailto:alissa at cooperw.in>>; Mueller, Milton L
<milton at gatech.edu<mailto:milton at gatech.edu>>; IANA etc etcCoordination Group <internal-
cg at ianacg.org<mailto:cg at ianacg.org>>
Subject: Re: [Internal-cg] bylaws feedback

Hi Alissa, Milton, all,

I would like to come back to this subject.  Specifically, I would like to propose
that the ICG send in a statement to the By-laws comment period.

Alissa commented on a specific concern (see thread below) and I also believe
the ICG should be concerned about the overreach in the draft bylaws.

My main concerns are:

- the fact that these draft by-laws, through the grand-fathering provisions,
allow external agreements to define ICANN's Mission which seems like a bad
idea for many reasons.  Further, this contradicts the desires of the community
(or is a run around the community - intentional or not) who worked hard to
clarify and correctly state ICANN’s mission throughout the IANA Transition
process (paragraphs 140-144 of the CCWG-Accountability proposal).

- the ICG process was fashioned to ensure that the transition plans reflected
the consensus of the Internet community.  And, it was to respect the roles and
responsibilities of the OCs in defining their own transition plans.  The ICG and
the CCWG reports define those wishes, and any changes to the bylaws were to
be to implement those wishes, nothing more.  Yet provisions in sections
1.1(d)(ii)(B)-(D) are outside the scope of both the ICG and the CCWG-
Accountability proposals, and so there has not been appropriate community
involvement or review for those changes.   Note: these sections affect much
of the Internet community, as they apply to agreements between ICANN and
the ASO, NRO, IETF, Root Zone Maintainer, and PTI.

For transparency: the IAB/IETF are also concerned about the overreach and
are drafting their own comments, and as an IAB appointee to the ICG, I am
part of that review as well.

If there is support for the ICG sending in a comment, I would be happy to work
with Alissa and others to draft something for ICG review.


On Apr 12, 2016, at 3:15 PM, Alissa Cooper <alissa at cooperw.in<mailto:alissa at cooperw.in>> wrote:

From the minutes it looks like this was discussed on the CCWG call and there
will be follow-up.

On Apr 12, 2016, at 8:39 AM, Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>

I sent it yesterday but there has been no response at all.

-----Original Message-----
From: Alissa Cooper [mailto:alissa at cooperw.in]
Sent: Monday, April 11, 2016 4:54 PM
To: Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>
Cc: IANA etc etcCoordination Group <internal-cg at ianacg.org<mailto:internal-cg at ianacg.org>>
Subject: Re: [Internal-cg] bylaws feedback

I think that would be fine.


On Apr 11, 2016, at 1:04 PM, Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>

If you don't mind I will just forward your message to the bylaws
and CWG

If there is some other way you want me to do this, please let me know.


-----Original Message-----
From: Internal-cg [mailto:internal-cg-bounces at ianacg.org] On
Behalf Of Alissa Cooper
Sent: Monday, April 11, 2016 1:49 PM
To: IANA etc etcCoordination Group <internal-cg at ianacg.org<mailto:internal-cg at ianacg.org>>
Subject: [Internal-cg] bylaws feedback

I have looked a bit at the draft bylaws and I’d like to ask
Kavouss and Milton to bring the following issue back to the bylaws
drafting group:

Section 1.1(d)(ii) incorporates by reference a number of documents
external to the bylaws as a means to prevent challenges on the
basis that those documents conflict with or violate the bylaws. In
particular, bullet (D) applies this provision to "the IANA Naming
Function Contract between ICANN and PTI effective [October 1, 2016]."

Given the ICG's historical encouragement of the community to meet
timelines necessary for a successful transition, I find this
provision to be extremely problematic. It incorporates a reference
to a document that does not exist yet and that is unlikely to be
completed by the time the bylaws are supposed to be done (early
June). In fact, it is not even clear at this point whether the new
ICANN affiliate to be setup will be name "PTI" or have some other
name. I don't understand how anyone can reason about whether
1.1(d)(ii) is an acceptable bylaws provision if it references a
document that has not been written. (This also applies to (B) and
(C) since it could apply to future documents that haven’t been

Furthermore, I question whether it is a sound decision to
essentially allow for documents external to the bylaws to be able
to modify the bylaws (under (F)). This section would make more
sense if it was entirely internally specified, without the
references to external documents. At a minimum, I think we should
recommend that (D) be

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