Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Jan. 14, 2016


      Just for the record, I am a strong supporter of community TLDs and
therefore think these kinds of commitments should be enforceable


J. Beckwith Burr 
Neustar, Inc. / Deputy
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 1/14/16, 3:59 PM, "Jonathan Zuck" <JZuck@actonline.org> wrote:
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This all makes sense but going forward it will require enormous changes
to how community proposals and those which overcome GAC objections are
handled. As we head into the CCT review (regardless of where consumer
trust ends up in the bylaws) it’s not hard to imagine that adherence to
PICs will be a part of the consumer trust calculation.
On 1/14/16, 12:59 PM, "accountability-cross-community-bounces@icann.org
on behalf of Burr, Becky"
<accountability-cross-community-bounces@icann.org on behalf of
Becky.Burr@neustar.biz> wrote:
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I understand these concerns.  Let me try to make my concerns concrete,
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particularly in the context community applications for new gTLDs, which
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may contain provisions that are a condition of community support but not
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strictly within ICANN¹s wheelhouse.
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Say, for example, that a community .eco application included provisions,
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for example, requiring registrants to disclose certain information about
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their environmental practices, and assume for the moment, that the
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requirement was the result of input from an advisory group consisting of
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global environmental organizations and a condition of the support of
those
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groups.  (I believe that these suppositions are factual but it really
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doesn¹t matter.)  Suppose, also, that the application includes an
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obligation to maintain and support a stakeholder¹s council consisting of
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representatives from global environmental organizations.  Another
example,
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suppose .bank requires registrants to demonstrate a certain regulatory
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status, and imposed that requirement to gain the support of financial
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institutions?
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All of those commitments, by virtue of their inclusion in the
application,
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are enforceable by ICANN.  But say that the applicant decides to abandon
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the disclosure requirement and disbands the stakeholder council.  Are
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either of those commitments reasonably necessary to facilitate openness,
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interoperability, resilience, security and/or stability of the DNS?  Is
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ICANN¹s contractual authority to enforce those commitments ³in service²
of
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ICANN¹s stability and security Mission?
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We could say that the community preference for new gTLDs is the result of
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bottom-up, multistakeholder policy development and that contractual
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enforcement is ³in service² of that policy.  But I don¹t know if that
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actually resolves the need to be reasonably necessary to facilitate
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stability, security, etc.
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Thoughts??
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J. Beckwith Burr
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Neustar, Inc. / Deputy
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General Counsel & Chief Privacy Officer
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1775 Pennsylvania Avenue NW, Washington D.C. 20006
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Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz
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<http://www.neustar.biz>
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On 1/14/16, 12:03 PM, "Paul Rosenzweig"
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<paul.rosenzweig@redbranchconsulting.com> wrote:
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I share Malcolm's view of voluntary commitments.  Leaving aside what may
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have gone before, allowing the parties to an agreement to contract
around
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binding limitations on their action would, effectively, nullify the
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Mission-limitation principle that is at the core of the accountability
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structure we are building.  I can live with grandfathering in prior
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mistakes
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in this regard, if I have to, but it is essential that the line be drawn
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for
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future actions in stone, not sand.
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Cheers
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Paul
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Paul Rosenzweig
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paul.rosenzweig@redbranchconsulting.com
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O: +1 (202) 547-0660
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M: +1 (202) 329-9650
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VOIP: +1 (202) 738-1739
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Skype: paul.rosenzweig1066
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Link to my PGP Key
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-----Original Message-----
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From: Malcolm Hutty [mailto:malcolm@linx.net]
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Sent: Thursday, January 14, 2016 2:14 AM
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To: Burr, Becky <Becky.Burr@neustar.biz>; Accountability Community
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<accountability-cross-community@icann.org>
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Subject: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement
discussion
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On 06/01/2016 19:03, Burr, Becky wrote:
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Is attached in DRAFT FORM.  Anything missing or wrong should be
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attributed to incompetence rather than conspiracy.  I am still working
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on questions in 1 section.  I will also shortly resend a variety of
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previously circulated resource documents.
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Becky,
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The slide deck you actually presented at meeting 75 contains three
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propositions that were not contained in this draft deck you copied to
the
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list. I believe you described these in your oral presentation as
"strawman
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propositions for discussion". I am writing to react to those
propositions.
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"Proposition: The GAC may provide Advice on any matter it sees fit;
ICANN
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must duly consider such Advice in accordance with the Bylaws, and if it
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decides to follow such Advice, must do so in a manner consistent with
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ICANN's Bylaws, including its Mission Statement."
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I agree with this proposition.
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"Proposition: ICANN's agreements with contracted parties may reflect:
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(a) bottom-up, consensus-based, multistakeholder policies on issues for
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which uniform or coordinated resolution is reasonably necessary to
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facilitate the openness, interoperability, resilience, security and/or
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stability of the DNS; and (b) other provisions in service of that
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Mission."
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I also agree with this proposition.
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The third propostion you introduce with a question:
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"To what extent should contracted parties be free to propose or
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voluntarily
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accept (and obligated to comply with) contract provisions that exceed
the
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scope of ICANN's Mission, e.g., to serve a specific community,
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pro-actively
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address a public policy concern?
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If "voluntary" commitments may exceed the scope of ICANN's Mission, how
do
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you ensure that such commitments are truly voluntary?
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Proposition: Individually negotiated commitments will be deemed to be
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voluntary. Existing RA and RAA language (including standard PICs) are
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"grandfathered" (as defined in Notes). Going forward, a mechanism should
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be
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available to permit contracted parties to enter into agreements without
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waiving the right to challenge (collectively) a contract provision on
the
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grounds that (a) it exceeds ICANN's Mission and (b) was extracted by
ICANN
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on an other than voluntary basis."
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I do not agree with this proposition, because I think the question you
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pose
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to which it is offered as an answer is mistaken.
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My reasoning is as follows:
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Let us set aside the question of how to determine whether a particular
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provision of a contract between ICANN and a Registry was arrived at
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through
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"voluntary" means. Let us also set aside the vexed question of whether
the
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concept of a "voluntary commitment" is even meaningful in a negotiation
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between an entity that has a critical input for its core business and an
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entity that is the monopoly supplier of that critical input.
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Let us consider instead: why do we care whether terms in Registry
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contracts
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are "voluntary commitments"?
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To put it another way, what is the wrong with ICANN imposing unwanted
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terms
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on Registries?
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It seems to me that the very notion of "voluntary commitment" must be
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intended as a meaning of protecting Registries from unreasonable
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impositions
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by ICANN. However the fear of ICANN making unreasonable impositions on
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Registries is not the only or main reason why we want to limit ICANN to
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acting within its Mission, so addressing the Mission limitation through
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some
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definition of what constitutes a "voluntary commitment" misses the
point.
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Limiting ICANN to its Mission is there to protect the entire community,
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not
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just Registries. Concerning the so-called "regulatory prohibition", that
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prohibition is intended primarily to protect the interests of end-user
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registrants, not those of Registries. We should be just as concerned if
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ICANN tries to exceed its Mission as a result of a conspiracy between it
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and
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the Registries as we should if ICANN does so as a result of some other
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motivation and then tries to impose requirements on Registries without
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their
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approval.
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Accordingly, I am afraid I cannot agree with either your third
proposition
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or the assumption on which it rests.
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In your question you ask "To what extent should contracted parties be
free
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to propose or voluntarily accept (and obligated to comply with) contract
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provisions that exceed the scope of ICANN's Mission".
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The answer to this is that contracted parties are not bound by ICANN's
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bylaws, and so they are entirely free to enter into any contractual
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relations they wish. However, ICANN is bound by its bylaws, and so is
not
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free to be the counterparty to a contract the purpose of which exceeds
or
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is
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in contradiction with the Mission or other bylaws requirement.
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Incidentally, I would point out that there is nothing unique about the
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Mission limitation. If we were to adopt the view that ICANN is free
enter
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into an agreement with Registries for purposes beyond the Mission merely
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because the Registries were eager for it to do so, by the same token
ICANN
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could then also disregard any other provision of the Bylaws that sought
to
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constrain how ICANN acts provided that Registries "voluntary" agreed to
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that. That cannot be acceptable to anyone, surely.
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Kind Regards,
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Malcolm.
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--
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Malcolm Hutty | tel: +44 20 7645 3523
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Head of Public Affairs | Read the LINX Public Affairs blog  London
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