Board comments on Recommendation 5 - Mission Statement
Hello All, Recommendation 5 - Mission Statement On the mission statement, the Board supports the core principles that: (a) ICANN shall not impose regulations on services that use the Internet's unique identifiers, or the content that such services carry or provide. (b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications. The drafting of the bylaws related to these principles will need to take into account the comments that the Board has previously expressed around use of terms such as "regulations", when ICANN is not a regulator, and the exact definitions of terms such as "services", so as not to exclude services such as domain name registration and domain name registry services. It is inappropriate to include within ICANN's mission a prohibition on regulation, when ICANN is not a regulator. We remain concerned about the grandfathering discussion and the potential limitations to ICANN's contracting and enforcement abilities. Rationale on Grandfathering: The Board's concerns with the recommendation to include "grandfathering" language within ICANN's Mission remain. These concerns exist notwithstanding the words used to describe the concept of "grandfathering". First, as the CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN's mission. To this end, any suggestion that ICANN's contracting ability with registries and registrars will be changed as a result of the CCWG-Accountability's work is inconsistent and troublesome. The Board does not agree with the inference, and it does not benefit ICANN or the ICANN community to suggest, that ICANN has previously entered into contracts that go beyond its mission. This introduces uncertainty and instability into ICANN's work. Second, grandfathering - no matter when the CCWG-Accountability wishes to impose a cut off - could result in inconsistent contracting among different parties and raises the question of unequal treatment among contracted parties. Finally, the uncertainty around the concept of grandfathering, and the level of detail needed to try to address that uncertainty, has carried the CCWG-Accountability beyond the clarification of ICANN's mission that was anticipated as part of this WS1 transition work. This level of detail is beyond the scope of ICANN's readiness for the transition, and creates opportunities for vagueness and challenge that could be introduced into ICANN's contracts. The Board understands that one of the concerns driving this discussion is a confirmation that the PICs would remain enforceable. As a result, the Board proposes that a reference to the viability of the PICs be added to the proposition "ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications." Regards, Bruce Tonkin ICANN Board Liaison to the CCWG
On 04/02/2016 07:38, Bruce Tonkin wrote:
(b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications.
It's a small point, but I think the word order is wrong here. As written, this would add anything in a PIC Specification to ICANN's Mission. Amongst other problems, this would be in direct conflict with the Board's own view that the Mission should not be defined by the terms of external documents. I would therefore suggest the following adjustment: (b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties (including PIC Specifications) in service of its Mission. Is that agreeable?
The drafting of the bylaws related to these principles will need to take into account the comments that the Board has previously expressed around use of terms such as “regulations”, when ICANN is not a regulator, and [...] It is inappropriate to include within ICANN’s mission a prohibition on regulation, when ICANN is not a regulator.
I'm really not too bothered about terminology. Semantic quibbling over whether ICANN "is a regulator" is beside the point. The intent of this provision is to prevent ICANN from trying to use its power "at the top of the DNS tree" to control people "further down the tree" (as Andrew puts it) in ways that have no connection to ICANN's Mission. Whether you call that "regulation" or come up with some other term doesn't matter: it's still an abuse of ICANN's position, and must be prevented.
Rationale on Grandfathering:
[...]
The Board does not agree with the inference, and it does not benefit ICANN or the ICANN community to suggest, that ICANN has previously entered into contracts that go beyond its mission.
We are not "suggesting" that. We are catering for the possibility that you might be alleged to have exceeded the Mission in the period when you could not effectively be held accountable for that by immunising you from challenge for actions taken during that period - while ensuring that you can be held accountable for any future such violations. This is a middle ground compromise between two positions i) to ensure that the new accountability provisions could be used to hold you accountable for previous violations as well as future ones; or ii) (this compromise) to ensure that the new accountability provisions can be used to hold you accountable for new violations, but not for any that might have been committed in the past; or iii) to ensure that you can never held accountable for any such violations, past or future. I can see why the first option might be thought better than our compromise, but we have decided to prefer stability over purity. The third option we were surely correct to rule out; it is simply inconsistent with the fundamental premise of this entire accountability exercise. If you ask us to take out the grandfathering provision, that will leave us with the first option. I don't think you want us to do that. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hello Malcolm,
I would therefore suggest the following adjustment:
(b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties (including PIC Specifications) in service of its Mission.
Is that agreeable?
Fine by me. It is not intended to be final Bylaw language and the topic of PICs is actually redundant as it is part of agreements, but we added it for the avoidance of doubt.
Whether you call that "regulation" or come up with some other term doesn't matter: it's still an abuse of ICANN's position, and must be prevented.
Agreed.
Rationale on Grandfathering:
[...]
i) to ensure that the new accountability provisions could be used to hold you accountable for previous violations as well as future ones; or
Well assuming we haven't changed our mission. If an IRP panel finds that we have entered into an agreement that is outside of our mission - then it seems reasonable that we must address that. Regards, Bruce Tonkin
I agree with Malcolm’s points. Robin
On Feb 4, 2016, at 12:27 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 04/02/2016 07:38, Bruce Tonkin wrote:
(b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications.
It's a small point, but I think the word order is wrong here.
As written, this would add anything in a PIC Specification to ICANN's Mission. Amongst other problems, this would be in direct conflict with the Board's own view that the Mission should not be defined by the terms of external documents.
I would therefore suggest the following adjustment:
(b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties (including PIC Specifications) in service of its Mission.
Is that agreeable?
The drafting of the bylaws related to these principles will need to take into account the comments that the Board has previously expressed around use of terms such as “regulations”, when ICANN is not a regulator, and [...] It is inappropriate to include within ICANN’s mission a prohibition on regulation, when ICANN is not a regulator.
I'm really not too bothered about terminology. Semantic quibbling over whether ICANN "is a regulator" is beside the point. The intent of this provision is to prevent ICANN from trying to use its power "at the top of the DNS tree" to control people "further down the tree" (as Andrew puts it) in ways that have no connection to ICANN's Mission.
Whether you call that "regulation" or come up with some other term doesn't matter: it's still an abuse of ICANN's position, and must be prevented.
Rationale on Grandfathering:
[...]
The Board does not agree with the inference, and it does not benefit ICANN or the ICANN community to suggest, that ICANN has previously entered into contracts that go beyond its mission.
We are not "suggesting" that. We are catering for the possibility that you might be alleged to have exceeded the Mission in the period when you could not effectively be held accountable for that by immunising you from challenge for actions taken during that period - while ensuring that you can be held accountable for any future such violations.
This is a middle ground compromise between two positions i) to ensure that the new accountability provisions could be used to hold you accountable for previous violations as well as future ones; or ii) (this compromise) to ensure that the new accountability provisions can be used to hold you accountable for new violations, but not for any that might have been committed in the past; or iii) to ensure that you can never held accountable for any such violations, past or future.
I can see why the first option might be thought better than our compromise, but we have decided to prefer stability over purity. The third option we were surely correct to rule out; it is simply inconsistent with the fundamental premise of this entire accountability exercise.
If you ask us to take out the grandfathering provision, that will leave us with the first option. I don't think you want us to do that.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I do as well - David At 05:08 PM 2/4/2016, Robin Gross wrote:
I agree with Malcolm's points.
Robin
On Feb 4, 2016, at 12:27 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 04/02/2016 07:38, Bruce Tonkin wrote:
(b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications.
It's a small point, but I think the word order is wrong here.
As written, this would add anything in a PIC Specification to ICANN's Mission. Amongst other problems, this would be in direct conflict with the Board's own view that the Mission should not be defined by the terms of external documents.
I would therefore suggest the following adjustment:
(b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties (including PIC Specifications) in service of its Mission.
Is that agreeable?
The drafting of the bylaws related to these principles will need to take into account the comments that the Board has previously expressed around use of terms such as "regulations", when ICANN is not a regulator, and [...] It is inappropriate to include within ICANN's mission a prohibition on regulation, when ICANN is not a regulator.
I'm really not too bothered about terminology. Semantic quibbling over whether ICANN "is a regulator" is beside the point. The intent of this provision is to prevent ICANN from trying to use its power "at the top of the DNS tree" to control people "further down the tree" (as Andrew puts it) in ways that have no connection to ICANN's Mission.
Whether you call that "regulation" or come up with some other term doesn't matter: it's still an abuse of ICANN's position, and must be prevented.
Rationale on Grandfathering:
[...]
The Board does not agree with the inference, and it does not benefit ICANN or the ICANN community to suggest, that ICANN has previously entered into contracts that go beyond its mission.
We are not "suggesting" that. We are catering for the possibility that you might be alleged to have exceeded the Mission in the period when you could not effectively be held accountable for that by immunising you from challenge for actions taken during that period - while ensuring that you can be held accountable for any future such violations.
This is a middle ground compromise between two positions i) to ensure that the new accountability provisions could be used to hold you accountable for previous violations as well as future ones; or ii) (this compromise) to ensure that the new accountability provisions can be used to hold you accountable for new violations, but not for any that might have been committed in the past; or iii) to ensure that you can never held accountable for any such violations, past or future.
I can see why the first option might be thought better than our compromise, but we have decided to prefer stability over purity. The third option we were surely correct to rule out; it is simply inconsistent with the fundamental premise of this entire accountability exercise.
If you ask us to take out the grandfathering provision, that will leave us with the first option. I don't think you want us to do that.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear Bruce, Thank you for the comments to Rec 5. DK agrees with the Boards comments and have no problem with the proposed slight modification made by Malcolm. As to "Grandfathering" you have rightly pointed out that "CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN's mission". Therefore "Grandfathering" will only give raise to legal uncertainty, which we should not introduce in the CCWG-proposal. Best, Finn Kind regards Finn Petersen Director of International ICT Relations DANISH BUSINESS AUTHORITY Dahlerups Pakhus Langelinie Allé 17 DK-2100 København Ø Telephone: +45 3529 1000 Direct: +45 3529 1013 Mobile: +45 2072 7131 E-mail: FinPet@erst.dk www.erhvervsstyrelsen.dk MINISTRY FOR BUSINESS AND GROWTH P Please consider the environment before printing this email. Fra: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] På vegne af Bruce Tonkin Sendt: 4. februar 2016 08:38 Til: CCWG-Accountability Emne: [CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement Hello All, Recommendation 5 - Mission Statement On the mission statement, the Board supports the core principles that: (a) ICANN shall not impose regulations on services that use the Internet's unique identifiers, or the content that such services carry or provide. (b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications. The drafting of the bylaws related to these principles will need to take into account the comments that the Board has previously expressed around use of terms such as "regulations", when ICANN is not a regulator, and the exact definitions of terms such as "services", so as not to exclude services such as domain name registration and domain name registry services. It is inappropriate to include within ICANN's mission a prohibition on regulation, when ICANN is not a regulator. We remain concerned about the grandfathering discussion and the potential limitations to ICANN's contracting and enforcement abilities. Rationale on Grandfathering: The Board's concerns with the recommendation to include "grandfathering" language within ICANN's Mission remain. These concerns exist notwithstanding the words used to describe the concept of "grandfathering". First, as the CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN's mission. To this end, any suggestion that ICANN's contracting ability with registries and registrars will be changed as a result of the CCWG-Accountability's work is inconsistent and troublesome. The Board does not agree with the inference, and it does not benefit ICANN or the ICANN community to suggest, that ICANN has previously entered into contracts that go beyond its mission. This introduces uncertainty and instability into ICANN's work. Second, grandfathering - no matter when the CCWG-Accountability wishes to impose a cut off - could result in inconsistent contracting among different parties and raises the question of unequal treatment among contracted parties. Finally, the uncertainty around the concept of grandfathering, and the level of detail needed to try to address that uncertainty, has carried the CCWG-Accountability beyond the clarification of ICANN's mission that was anticipated as part of this WS1 transition work. This level of detail is beyond the scope of ICANN's readiness for the transition, and creates opportunities for vagueness and challenge that could be introduced into ICANN's contracts. The Board understands that one of the concerns driving this discussion is a confirmation that the PICs would remain enforceable. As a result, the Board proposes that a reference to the viability of the PICs be added to the proposition "ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications." Regards, Bruce Tonkin ICANN Board Liaison to the CCWG
I have to admit that I am a little confused about the Board’s comments on grandfathering. This was done to respond to the GAC and the ALAC who asked for “assurances” that the existing contracts, including PICs, could be enforced. I don’t see how the commentary on grandfathering introduces uncertainty, but I – personally – don’t object to taking it out. I suspect, however, that others will. 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> From: Finn Petersen <FinPet@erst.dk<mailto:FinPet@erst.dk>> Date: Thursday, February 4, 2016 at 5:35 AM To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement Dear Bruce, Thank you for the comments to Rec 5. DK agrees with the Boards comments and have no problem with the proposed slight modification made by Malcolm. As to “Grandfathering” you have rightly pointed out that “CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN’s mission”. Therefore “Grandfathering” will only give raise to legal uncertainty, which we should not introduce in the CCWG-proposal. Best, Finn Kind regards Finn Petersen Director of International ICT Relations DANISH BUSINESS AUTHORITY Dahlerups Pakhus Langelinie Allé 17 DK-2100 København Ø Telephone: +45 3529 1000 Direct: +45 3529 1013 Mobile: +45 2072 7131 E-mail: FinPet@erst.dk<mailto:FinPet@erst.dk> www.erhvervsstyrelsen.dk MINISTRY FOR BUSINESS AND GROWTH PPlease consider the environment before printing this email. Fra: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] På vegne af Bruce Tonkin Sendt: 4. februar 2016 08:38 Til: CCWG-Accountability Emne: [CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement Hello All, Recommendation 5 - Mission Statement On the mission statement, the Board supports the core principles that: (a) ICANN shall not impose regulations on services that use the Internet’s unique identifiers, or the content that such services carry or provide. (b) ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications. The drafting of the bylaws related to these principles will need to take into account the comments that the Board has previously expressed around use of terms such as “regulations”, when ICANN is not a regulator, and the exact definitions of terms such as “services”, so as not to exclude services such as domain name registration and domain name registry services. It is inappropriate to include within ICANN’s mission a prohibition on regulation, when ICANN is not a regulator. We remain concerned about the grandfathering discussion and the potential limitations to ICANN’s contracting and enforcement abilities. Rationale on Grandfathering: The Board’s concerns with the recommendation to include “grandfathering” language within ICANN’s Mission remain. These concerns exist notwithstanding the words used to describe the concept of “grandfathering”. First, as the CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN’s mission. To this end, any suggestion that ICANN’s contracting ability with registries and registrars will be changed as a result of the CCWG-Accountability’s work is inconsistent and troublesome. The Board does not agree with the inference, and it does not benefit ICANN or the ICANN community to suggest, that ICANN has previously entered into contracts that go beyond its mission. This introduces uncertainty and instability into ICANN’s work. Second, grandfathering – no matter when the CCWG-Accountability wishes to impose a cut off – could result in inconsistent contracting among different parties and raises the question of unequal treatment among contracted parties. Finally, the uncertainty around the concept of grandfathering, and the level of detail needed to try to address that uncertainty, has carried the CCWG-Accountability beyond the clarification of ICANN’s mission that was anticipated as part of this WS1 transition work. This level of detail is beyond the scope of ICANN’s readiness for the transition, and creates opportunities for vagueness and challenge that could be introduced into ICANN’s contracts. The Board understands that one of the concerns driving this discussion is a confirmation that the PICs would remain enforceable. As a result, the Board proposes that a reference to the viability of the PICs be added to the proposition “ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications.” Regards, Bruce Tonkin ICANN Board Liaison to the CCWG
participants (6)
-
Bruce Tonkin -
Burr, Becky -
David Post -
Finn Petersen -
Malcolm Hutty -
Robin Gross