Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Nov. 13, 2015

      Robin and all:

As has been shown by the extensive discussion on this thread, the concept of what "services" mean has been very much a point of debate.  Consensus about what we want the drafters to say about this, was therefore clearly lacking.   The meaning of "services" has implications for what the broader language means, and the proposals currently on the table have attempted to give substance to the consensus by calibrating what "services means", alongside the rest of that language.  Even if one accepts that consensus was earlier reached on the words of the text, it was clearly not reached on the meaning of certain of those words, which is the kind of consensus I thought we were aiming for.

Bradley

-----Original Message-----
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross
Sent: Friday, November 13, 2015 11:06 AM
To: thomas@rickert.net Rickert; León Felipe Sánchez Ambía; Mathieu Weill (Mathieu.Weill@afnic.fr)
Cc: Accountability Community
Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Dear Co-Chairs,

Please note that there is NO consensus to remove the language from the 2nd draft which has already twice received consensus in both drafts and public comment periods.  This is a significant Process Violation if you do so.

It is imperative that the text from the 2nd draft be included in the document until a new text finds consensus within the group.  Unless and until that happens it is a violation of our charter to remove consensus language and by doing so, the co-chairs risk the final document not being approved by the GNSO Council.

The language never would have gotten into the report had it NOT had previous consensus, and re-opening the draft (based on an unrelated issue: switching to Designator) is not an acceptable way to remove it now.  There is no consensus to remove that language and until a new consensus is achieved, it must remain.  I am hopeful we can find the agreement, but until that happens, this will be a major Process Violation, which is likely to kill the acceptance of the overall report.  I suggest you take this Process Violation seriously.

Robin

On Nov 12, 2015, at 4:41 AM, Malcolm Hutty wrote:
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Dear Co-Chairs
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I think the best way of resolving this would be to note that we have
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ALREADY reached consensus on this TWICE (in order to publish two Draft
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Reports that recommended this provision), and only to assess the
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public comments.
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Remember, either of the previous Draft Reports could have been the
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final outcome; we've only come back to a second and a third because of
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a separate issue (changing the Reference Model, twice).
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When assessing the public comments, we can see overwhelming support
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for the inclusion of this text.
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Moreover, we have found a way to at least partially address the only
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concerns raised in the public comment, by adding
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"ICANN shall have the ability to negotiate, enter into and enforce
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agreements with contracted parties in service of its Mission."
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This gives what those few who raised concerns at least part of what
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they want, and we have not found any consensus to go further.
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I think the Co-Chairs could quite legitimately say that it is too late
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to open new issues now, and that we should proceed on the basis of the
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previously achieved consensus.
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Malcolm.
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On 12/11/2015 12:20, Mueller, Milton L wrote:
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Let me add this: I see once again a disturbing tendency to ignore and override the public comments. We went through two rounds of public comment on this proposal. In both comment periods, there was overwhelming support for the prohibition on content regulation. A consensus-based process that is responsive to the community would not be asking _whether_ we need this prohibition, it would only be asking how to word it.
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--MM
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-----Original Message-----
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From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>
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[mailto:accountability-cross-community-bounces@icann.org] On Behalf
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Of Mueller, Milton L
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Sent: Thursday, November 12, 2015 7:15 AM
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To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; Accountability Community
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<accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>
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Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding
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Mission and Contract
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Keith
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I don't think we have irreconcilable views, and I certainly don't
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see any increase in divergence. What I see is some difficulty in
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formulating the wording right so that prohibiting ICANN from
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regulating other services doesn't get in the way of it regulating the services it is supposed to regulate.
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Even if there is divergence, it is NOT an issue that can be avoided;
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it is fundamental to ICANN's mission limitation and accountability
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and I would never agree to a transition without it. We need to
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resolve this, and we have to do it in WS1.
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By the way, it is impossible to avoid resolving this issue. If you
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do not include this prescription, you are siding with those who
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don't want it to be there - and thus overriding and ignoring the views of the people who want it there.
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Andrew:
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ICANN shall have no power to act other than in accordance with,
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and as reasonably appropriate to achieve its Mission.
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With that prohibition on ICANN going out and finding new things to
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do, you have the explicit limitation you want.  No?
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No. Paul R has addressed this. What we have now is open to too much
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interpretation and is not a clear enough limitation. We need to have
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a clear and explicit limitation, not a general statement that ICANN
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will conform to its mission. We need to make it clear that the
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mission does NOT include content regulation.
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--
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Malcolm Hutty | tel: +44 20 7645 3523

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Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Silver, Bradley