Why this may be important, is that judges have previously relied on the IANA contract with the US Department of Commerce to outline the authority under which the rules ICANN has put forward should be honoured  (See http://www.leagle.com/decision/In%20FDCO%2020150105808/STERN%20v.%20THE%20ISLAMIC%20REPUBLIC%20OF%20IRAN) [ NB I do NOT want to start any discussion about any country.  The case is relevant only for the Judge's rationale of authority]

Without the IANA contract, judges will continue to look for rationale's about ICANN's authority in making rules about the DNS on which they can rely.

That is why I am concerned that we do not weaken this.   I am not talking here about hard black letter/constitutional line of authority - the type about which Nigel is asking.   I am talking about having in place proclamations of expertise and 'real world' authority which allows judges to say "I am going to agree with ICANN's view of the DNS world".

I would note that there are over 200  decisions of US appellate courts which implicitly refer to ICANN is a way similar to the one I have mentioned above. (see: http://www.leagle.com/leaglesearch.html?allwords%3D%26exactphrase%3DICANN%26anyword%3D%26withoutword%3D%26qsearchsubmit%3D1)

Best

Paul

On 11/1/15 9:28 AM, Stephen Deerhake wrote:

+1 to Nigel's remarks.

As Nigel asks, can anyone within or outside of ICANN and the ICANN Community
actually point to the underlying fundamental legal foundation that props all
this up?

Stephen Deerhake

-----Original Message-----
From: accountability-cross-community-bounces@icann.org
[mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel
Roberts
Sent: Saturday, October 31, 2015 5:38 PM
To: accountability-cross-community@icann.org
Subject: Re: [CCWG-ACCT] Please review regarding IAB comments on Mission
Statement

Paul makes some interesting tactical points.

But can you point to ANY legal foundation where ICANN actually IS a "primary
head of power"???



On 10/31/2015 08:32 PM, Paul Twomey wrote:

Becky

I think the points made by Malcolm and the IAB make a lot of sense when
viewed from the perspective of the engineering/technical community.

But I would observe that the wording will interpreted with most impact
on daily work of the ICANN community not by non technical entities, but
particularly by the courts in various lands and the ongoing
international "politics of technology" processes.   When I look at the
proposed wording from that perspective, I worry that shifting to
"support" in the Mission statement could result in destabilising
uncertainty.   As we have seen in various litigation (to give only one
example, litigation about trying to get TLDs recognized as property
which the Courts can order moved from one party to another), the ability
for the Judge's not to have any doubt as to the primacy of the ICANN
(including community) role in determining the general rules/approach in
this area has been important.

It could be destabilising if we leave the impression in the
politico/legal arena that ICANN only plays a supporting role, and that
they can go looking for another primary head of power.

I admit I am writing this from something of a paranoid view, but then I
do have sympathy with Andy Grove's observation that only the paranoid
survive.

I can also understand why the IAB questions the operational accuracy of
the use of the term "coordinates" in the opening sentence of the Mission
Statement as it now stands.

Is there a way of getting a more robust term than just "support"?

Paul

Paul Twomey

On 10/31/15 11:52 PM, Malcolm Hutty wrote:

Becky,

Thank you for bringing forward this proposal from the IAB.

I think we should support the intent here. I do, however, have a concern
about one aspect of the implementation.

The main overall effect of this proposal, and I believe its intent, is
to limit the statement of ICANN's Mission so that it more closely
reflects what is empirically ICANN's role today.

Existing text states that ICANN's Mission is to ""coordinate, at the
overall level, the global Internet's system of unique identifiers", and
then goes on to says that "In particular", ICANN does certain things
regarding each of DNS, IP addresses and AS numbers, and protocol

parameters.

The proposed text states that ICANN's mission is to "support, at the
overall level, core Internet registries".

The change of verb, from "coordinate" to "support" seems to me to be a
good change: ICANN supports DNS, IP addressing and protocol parameters
in different ways, and the verb "co-ordinate" might wrongly suggest
responsibilities for ICANN that it does not have. For example, ICANN
does not in fact have change control authority over protocol parameters;
that lies with the IETF, and ICANN's role is to publish registries of
those parameters. Changing from "co-ordinate" to "support" more
accurately reflects this.

On the other hand, the change of object from "the global Internet's
system of unique identifiers" to "core Internet registries" is a
broadening of scope.

I am not sure what the limits of the scope of "core Internet registries"
is intended to be. Is a broadening of scope beyond the current text
intentional? If so, I would like to know the rationale.

We need to be aware that future technologies might result in the
creation of new registries yet to be invented. I'm not sure we want
those to be automatically invested in ICANN.

Speaking as someone from the network operator community, it's not at all
obvious to me that ICANN would necessarily be the obvious repository for
some future registry that was used operationally (that is, one consulted
in "run-time", as with the DNS or the global routing table, as opposed
to one consulted at software design time, as with (most? all?) IETF
protocol parameters). We might instead look to the Regional Internet
Registries, or to some other entity or, as with the routing table, it
might be distributed.

Even if we did wish to invest ICANN with responsiblity for such a future
registry, the nature of that responsibility might need to be carefully
defined and limited, just has been done with DNS and with IP addresses.
If we exclude such new registries from the scope of ICANN's Mission now,
they could still be taken on later but to do so would require a
Fundamental Bylaws change; such a process would give an opportunity for
careful scrutiny and development of precisely what ICANN's role in
relation to that registry ought to be. On the other hand, if we now
decide that such a future registry is automatically ICANN's
responsibility, then a very different process will determine how ICANN
relates to it, a process that could result in ICANN undertaking a
function for which there is no current analogy, and without requiring
the positive consent of the community.

In summary, before expanding ICANN's role beyond "the global Internet's
system of unique identifiers", I think we should hear why that is
needed, and carefully consider whether there might be inadvertent
consequences. When we hear the rationale, it might be possible to
accommodate it in other ways.

If the rationale is nothing more than that the IETF fears that some of
its protocol parameters registries could not be described as "globally
unique identifiers", a more tailored solution is surely available. We
could simply authorise ICANN to publish registries of protocol
parameters when requested to do so by the IETF, or by protocol
development bodies generally. That would be much simpler, and the
opportunity for inadvertent consequences would be greatly reduced.

Malcolm.

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