Of course contracts are not policies. But contracts contain provisions based on policies. Stress tests 29 and 30 explicitly makes reference to an IRP challenge could asserting that a contract provision was not developed by consensus. If the mission statement addition said that Consensus Policy must be developed by a bottom-up MS process, that would be fine. But it simply says "policies", an undefined and rather vague term. Alan At 12/11/2015 03:29 PM, Burr, Becky wrote:
With all due respect - contracts are NOT policies. Contracts reflect policies, and they contain limits on what ICANN can impose unilaterally on contracted parties. But contracts with registries and registrars contain lots of mutually agreed commercial terms and conditions that are NOT policy. That is why ICANN must be able to enter into and enforce contracts ³in furtherance of its mission"
J. Beckwith Burr Neustar, Inc. / Deputymply says "policies" General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 11/12/15, 9:51 AM, "Alan Greenberg" <alan.greenberg@mcgill.ca> wrote:
David, there are several issues here.
PICs were not developed through a bottom-up process, although they were subject to comment processes at various times.
However, PICs are documented in Spec 11 of the registry agreements. Spec 1 is the explicit list of what topics can be the subject of a GNSO PDP, and for whatever reason (you can attribute it to incompetence or conspiracy), PIC are not in the list.
My worry is that PICs, or virtually any part of a contract might be able to be struck down by and IRP because they were not developed in a bottom-up MS process, but there is no way to use the bottom-up MS process to replace them.
Alan
At 12/11/2015 10:26 AM, David Post wrote:
Alan - I'm not clear what you mean when you say that
AG:- some issues which could reasonably considered "policy", such as PICs in registry agreements, according to the Registry agreement Spec 1, are NOT SUBJECT to Consensus Policy"?
Do you mean that the insertion of the PICs in Spec 1 was not developed by a consensus process ( I would agree )? Or that under the current language of the proposal, the insertion of the PICs is the kind of action that ICANN would be permitted to take without it being subject to the consensus process (I don't think I agree )?
David
At 07:54 AM 11/12/2015, Alan Greenberg wrote:
I am increasingly becoming uneasy with the implications of several of our proposed changes/powers. I would be happy to be convinced that I am missing something and there is no need to be concerned.
The particular interaction that I am thinking of is:
- the new requirement that "policies" be developed through a bottom-up multistakeholder process;
- the fact that we never really define "policy" and therefore what is a policy is subject to interpretation;
- we have contracts which are made up of a combination of historical language, negotiated terms, Consensus Policy and yes, terms which at some point in time may have been included through more arcane processes;
- some issues which could reasonably considered "policy", such as PICs in registry agreements, according to the Registry agreement Spec 1, are NOT SUBJECT to Consensus Policy;
- most contractual provisions are also outside of the limited subjects in Spec 1 (Registry) / Spec 4 (Registrar);
- The IRP which can judge something to be outside of ICANN's mission;
When you put these together, we have the situation that an IRP could judge that some contractual provision is "policy", was not developed through a bottom-up MS process, and therefore violates the Bylaws. Yet such terms are not eligible for a bottom-up MS process, or predate such processes.
I find this EXTREMELY problematic.
Alan
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