"Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws
I reject the argument that we have turned Article 1 into a “ Christmas tree” already and should thus not object to adding an additional consumer protection role for ICANN. I commend folks to look at the three column side by side analysis of the changes to Commitments and Core Values in the 3rd Draft Report. The relevant chart starts on page 11 of Annex 5. I believe that it demonstrates pretty conclusively that in transposing the AoC and the NTIA requirements into Section 1 of the Bylaws we have not YET introduced an entirely new concept into ICANN’s wheelhouse. The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself. I urge you to review this argument by reference to the actual text in the proposal, which includes the 3 column comparison. Here’s my analysis below for those who are interested. At the end I explain again why I am deeply opposed to including a reference to “consumer trust” untethered to the new gTLD context. Commitment 1. You can see (from the blue text at the top of page 12) that we added language regarding operation “consistent with its bylaws for the benefit of the Internet community as a whole, international law, open and transparent process, and competition. The obligation to comply with bylaws (limited Mission) appears now in (existing) Core Value 2; the competition provisions appear in (existing Core Values 5 and 6); the reference to international law appears in the existing Articles of Incorporation, as does the reference to the benefit of the Internet community as a whole; transparency gets a whole section in ICANN’s existing Bylaws. Commitment 2 incorporates the concept of neutral and judgment free [operation of the DNS], which we agreed would become "Preserve and enhance the neutral and judgment free administration of the technical DNS.” We also added direct references to interoperability, resilience, and openness. I don’t think any of these concepts are new. To the extent that they are, they are specifically cited as a requirement for the transition to proceed. Commitment 3 requires ICANN to maintain the capacity and ability to do its work in support of a singer interoperable Internet. While this language is new, it strikes me as basic service to its stability and security Mission. Commitment 4 is a very modest restatement of existing Core Value 2. Commitment 5 restates existing Core Value 7, and restates clearly accepted commitments to bottom-up, multistakeholder processes, private sector leadership informed by public policy advice, etc. All of these concepts appear in the existing Bylaws. While the phrases "bottom-up" and “multistakeholder” may not appear, they are echoes from the White Paper and the PDP spelled out in the Bylaws. Commitment 6 restates existing Core Value 8. Commitment 7 restates existing Core Value 10. Core Value 2 (which is really 1, but for some reason the chapeau is numbered here) restates existing Core Value 3, Core Value 7, and Core Value 9. Core Value 3 (should be 2) restates existing Core Value 4 and again references the use of bottom-up, multistakeholder processes. Core Value 4 (should be 3) restates existing Core Value 5. Core Value 5 (should be 4) restates existing Core Value 6 and again references the use of bottom-up, multistakeholder processes. Core Value 6 (should be 5) restates existing Core Value 9 and adds the concept of fiscal responsibility and accountability. Accountability already appears in the ICANN Bylaws, and it is hard to make the case that requiring ICANN to be fiscally responsible reflects a new role or obligation. Core Value 7 (should be 6) restates existing Core Value 11. Core Value 8 (should be 7) is new – but references the need to employ processes and procedures to prevent capture. Again, that strikes me as inherent in being accountable, serving the Internet community as a whole, etc. Accordingly, I remain strongly opposed to introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs. Some argue that promoting “consumer trust” in general (as opposed to in the context of new gTLDs) is demonstrably separable from sovereign legal concepts governing consumer protection, but don’t (and really can’t) support that by reference to national or international law. We really do not have a grip on the unintended consequences that this language could have, in particular, on registries – both gTLDs and ccTLDs – registrars, and entities that services that use the Internet’s unique identifiers. I am particularly concerned that this raises issues related to content regulation – consumer protection law is at its heart involves regulation of speech (albeit, commercial speech). I am happy to further explore this concept as part of Work Stream 2 (or separately). Becky 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: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Date: Tuesday, January 12, 2016 at 9:40 AM To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Cc: Jonathan Zuck <jzuck@actonline.org<mailto:jzuck@actonline.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Jonathan Zuck wrote: Agree with Steve here. We need to keep core values minimal. This Christmas Tree is already getting weighed down a bit too much for my tastes. Alan Greenberg wrote: Oh I agree. But it got heavy a long time ago. If we want to start stripping stuff out that we have added, I am all for it. Why all this vehemence about this one item? I would suggest that it's because (a) while we may not have reached a tipping point of weighing down the Christmas Tree with so many values and commitments that ICANN will be able, in effect, to do whatever it likes itn the future, we're perilously close, and we should resist the temptation to add any new ones (including this one). And (b) there are far too many things ICANN would be able to justify (in good faith) as being designed to "increase consumer trust" that would take it very far from its core mission - instituting a program to investigate and remedy false, fraudulent, or defamatory claims on websites, for instance. David Alan From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> > Date: Saturday, January 9, 2016 at 11:10 AM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> >, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Our recommendation #9 is Incorporating the Affirmation of Commitments in ICANN’s Bylaws. That includes commitments made by ICANN in the AoC, such as the commitment cited by Becky, to "promote competition, consumer trust, and consumer choice in the DNS marketplace." First, I don’t think we should casually discard any of those three commitment items just because it is difficult to define. The AoC review that’s just begun will develop working definitions as part of its review. I would answer 'No' to both of Becky’s questions. This commitment does not need to be part of Core Values, and could live in the bylaws section describing the required AoC review of any expansion of new gTLDs. Since it is in the bylaws, ICANN’s fulfillment of this commitment could be the subject of an IRP. And any changes to this commitment would be subject to veto by the empowered community. From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> > Date: Friday, January 8, 2016 at 2:10 PM To: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] "Consumer Trust" in the Mission Statement As discussed in our call yesterday, we would like to get some discussion started on some of the issues with the Mission Statement, Commitments & Core Values elements of the CCWG Proposal. One of those issues relates to the inclusion of the concept of promoting “consumer trust†in the Commitments and/or Core Values. The USCIB comment, for example, urged inclusion of a Commitment/Core Value of “promoting competition, consumer trust, and consumer choice in the DNS marketplace.†ALAC urged inclusion of the consumer trust language. This is the topic we will discuss on Monday, during the Ad Hoc meeting just announced. Feel free to contribute your views in this thread, particularly if you are not going to be able to participate on Monday. ISSUE: Paragraph 3 of the Affirmation of Commitments describes the goals of the AoC, saying: "This document affirms key commitments by DOC and ICANN, including commitments to: … (c) promote competition, consumer trust, and consumer choice in the DNS marketplace….†Paragraph 9.3 of the AoC says: … IIf and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice …. ICANN will organize a further review of its execution of the above commitments two years after the first review, and then no less frequently than every four years. In the Initial Draft Proposal, this AoC language was transposed into the Core Values by requiring ICANN to depend “on market mechanisms to proote and sustain a healthy competitive environment in the DNS market that enhances consumer trust and choice.†(Para 107, page 27 Initial Draft Proposal) In the 2nd Draft Proposal we elected to delete the reference to consumer trust in the Mission statement and include it in the Review section of the Bylaws (See 3rd Report, Appendix 9, Para. 33). The reason we agreed to make this switch was because it is not a standalone ICANN commitment in the AoC, rather, it is specifically tied to new gTLD expansion and specifically tied to a required review. Several commenters in both the 2nd and 3rd comment round argued that the Core Values should specifically call out consumer trust. Some have disputed my characterization of Paragraph 3 of the AoC (i.e., it states the goals of the AoC but does not recite a specific commitment), on the grounds that my characterization is an opinion and not a fact. QUESTIONS: Should an AoC provision specific to TLD expansion be leveraged to impose generalized, independent, and affirmative competition and consumer trust protection obligations on ICANN? Does ICANN’s fundamental Mission to ensure “stable and secure operation†of the DNS, and its various Commitments (i.e., to use processes that enable competition, and to preserve stability, reliability, security, global interoperability, resilience, and openness) adequately address this concern? 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> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=UpqXB2b5N4s7L-iJXsaW6-FyEcpJIGblvzhi6KLarns&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic<https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=J87XSge-oxlXPP7Q38XN_CMENLTL4Kz0XERCuQxBYPg&e=> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25EF-2...> *******************************
Becky, First, I concure that the Xmas-tree meme is unhelpful, and inaccurate, and now out of season. Second, I appreciate your taking the time and effort to create the correspondences of Core Values and Commitments. Third, I suggest that the AoC has a specific context, and despite the utility of "consumer trust" (what ever that may mean) to the legacy, 2001 and 2005 cohorts of namespaces (and their registries, registrars, registrants, and non-registrant-users), the authors of the AoC limited their scope to the then-anticipated 2013 new gTLD participants (users, registrants, ...). Eric Brunner-Williams Eugene, Oregon
Dear Becky, as a I´m eagerly waiting in line for some issues allocated to WS2 and member of the CCT Review Team that starts tomorrow by the way, I follow this thread with particular interest. I kindly ask for 3 clarifications: I ask you kindly to explain in plain language what " introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs” means. Also going back to a previous mail, I also reacted to your initial question by suggesting to at least separate Consumer Trust from the two other elements well know in the economic literature (Competition and Choice) and would understand from your position that right now we are effectively separating this two sides of the initial title in the AoC that puts them together. Additionally, in Steve Del Bianco second mail to the thread he referred to a set of definition from a previous working group (AIG report) on CCT. I would like to ask you if those definitions out of a WG can be considered to be a reasonable point of reference. thank you very much Carlos Raúl Gutiérrez _____________________ email: crg@isoc-cr.org <mailto:crg@isoc-cr.org> Skype: carlos.raulg +506 8837 7176 (cel) +506 4000 2000 (home) +506 2290 3678 (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA
On 12Jan, 2016, at 13:08, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
I reject the argument that we have turned Article 1 into a “ Christmas tree” already and should thus not object to adding an additional consumer protection role for ICANN. I commend folks to look at the three column side by side analysis of the changes to Commitments and Core Values in the 3rd Draft Report. The relevant chart starts on page 11 of Annex 5. I believe that it demonstrates pretty conclusively that in transposing the AoC and the NTIA requirements into Section 1 of the Bylaws we have not YET introduced an entirely new concept into ICANN’s wheelhouse. The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself.
I urge you to review this argument by reference to the actual text in the proposal, which includes the 3 column comparison. Here’s my analysis below for those who are interested. At the end I explain again why I am deeply opposed to including a reference to “consumer trust” untethered to the new gTLD context.
Commitment 1. You can see (from the blue text at the top of page 12) that we added language regarding operation “consistent with its bylaws for the benefit of the Internet community as a whole, international law, open and transparent process, and competition. The obligation to comply with bylaws (limited Mission) appears now in (existing) Core Value 2; the competition provisions appear in (existing Core Values 5 and 6); the reference to international law appears in the existing Articles of Incorporation, as does the reference to the benefit of the Internet community as a whole; transparency gets a whole section in ICANN’s existing Bylaws.
Commitment 2 incorporates the concept of neutral and judgment free [operation of the DNS], which we agreed would become "Preserve and enhance the neutral and judgment free administration of the technical DNS.” We also added direct references to interoperability, resilience, and openness. I don’t think any of these concepts are new. To the extent that they are, they are specifically cited as a requirement for the transition to proceed.
Commitment 3 requires ICANN to maintain the capacity and ability to do its work in support of a singer interoperable Internet. While this language is new, it strikes me as basic service to its stability and security Mission.
Commitment 4 is a very modest restatement of existing Core Value 2.
Commitment 5 restates existing Core Value 7, and restates clearly accepted commitments to bottom-up, multistakeholder processes, private sector leadership informed by public policy advice, etc. All of these concepts appear in the existing Bylaws. While the phrases "bottom-up" and “multistakeholder” may not appear, they are echoes from the White Paper and the PDP spelled out in the Bylaws.
Commitment 6 restates existing Core Value 8.
Commitment 7 restates existing Core Value 10.
Core Value 2 (which is really 1, but for some reason the chapeau is numbered here) restates existing Core Value 3, Core Value 7, and Core Value 9.
Core Value 3 (should be 2) restates existing Core Value 4 and again references the use of bottom-up, multistakeholder processes.
Core Value 4 (should be 3) restates existing Core Value 5.
Core Value 5 (should be 4) restates existing Core Value 6 and again references the use of bottom-up, multistakeholder processes.
Core Value 6 (should be 5) restates existing Core Value 9 and adds the concept of fiscal responsibility and accountability. Accountability already appears in the ICANN Bylaws, and it is hard to make the case that requiring ICANN to be fiscally responsible reflects a new role or obligation.
Core Value 7 (should be 6) restates existing Core Value 11.
Core Value 8 (should be 7) is new – but references the need to employ processes and procedures to prevent capture. Again, that strikes me as inherent in being accountable, serving the Internet community as a whole, etc.
Accordingly, I remain strongly opposed to introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs. Some argue that promoting “consumer trust” in general (as opposed to in the context of new gTLDs) is demonstrably separable from sovereign legal concepts governing consumer protection, but don’t (and really can’t) support that by reference to national or international law. We really do not have a grip on the unintended consequences that this language could have, in particular, on registries – both gTLDs and ccTLDs – registrars, and entities that services that use the Internet’s unique identifiers. I am particularly concerned that this raises issues related to content regulation – consumer protection law is at its heart involves regulation of speech (albeit, commercial speech). I am happy to further explore this concept as part of Work Stream 2 (or separately).
Becky
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: David Post <david.g.post@gmail.com <mailto:david.g.post@gmail.com>> Date: Tuesday, January 12, 2016 at 9:40 AM To: Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> Cc: Jonathan Zuck <jzuck@actonline.org <mailto:jzuck@actonline.org>>, Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>>, Becky Burr <becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement
Jonathan Zuck wrote:
Agree with Steve here. We need to keep core values minimal. This Christmas Tree is already getting weighed down a bit too much for my tastes.
Alan Greenberg wrote:
Oh I agree. But it got heavy a long time ago. If we want to start stripping stuff out that we have added, I am all for it. Why all this vehemence about this one item?
I would suggest that it's because (a) while we may not have reached a tipping point of weighing down the Christmas Tree with so many values and commitments that ICANN will be able, in effect, to do whatever it likes itn the future, we're perilously close, and we should resist the temptation to add any new ones (including this one). And (b) there are far too many things ICANN would be able to justify (in good faith) as being designed to "increase consumer trust" that would take it very far from its core mission - instituting a program to investigate and remedy false, fraudulent, or defamatory claims on websites, for instance.
David
Alan
From: < accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org> > Date: Saturday, January 9, 2016 at 11:10 AM To: Becky Burr <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> >, Accountability Community < accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement
Our recommendation #9 is Incorporating the Affirmation of Commitments in ICANN’s Bylaws. That includes commitments made by ICANN in the AoC, such as the commitment cited by Becky, to "promote competition, consumer trust, and consumer choice in the DNS marketplace."
First, I don’t think we should casually discard any of those three commitment items just because it is difficult to define. The AoC review that’s just begun will develop working definitions as part of its review.
I would answer 'No' to both of Becky’s questions. This commitment does not need to be part of Core Values, and could live in the bylaws section describing the required AoC review of any expansion of new gTLDs.
Since it is in the bylaws, ICANN’s fulfillment of this commitment could be the subject of an IRP.
And any changes to this commitment would be subject to veto by the empowered community.
From: < accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > Date: Friday, January 8, 2016 at 2:10 PM To: Accountability Community < accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] "Consumer Trust" in the Mission Statement
As discussed in our call yesterday, we would like to get some discussion started on some of the issues with the Mission Statement, Commitments & Core Values elements of the CCWG Proposal. One of those issues relates to the inclusion of the concept of promoting “consumer trust†in the Commitments and/or Core Values. The USCIB comment, for example, urged inclusion of a Commitment/Core Value of “promoting competition, consumer trust, and consumer choice in the DNS marketplace.†ALAC urged inclusion of the consumer trust language. This is the topic we will discuss on Monday, during the Ad Hoc meeting just announced. Feel free to contribute your views in this thread, particularly if you are not going to be able to participate on Monday. ISSUE: Paragraph 3 of the Affirmation of Commitments describes the goals of the AoC, saying: "This document affirms key commitments by DOC and ICANN, including commitments to: … (c) promote competition, consumer trust, and consumer choice in the DNS marketplace….†Paragraph 9.3 of the AoC says: … IIf and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice …. ICANN will organize a further review of its execution of the above commitments two years after the first review, and then no less frequently than every four years. In the Initial Draft Proposal, this AoC language was transposed into the Core Values by requiring ICANN to depend “on market mechanisms to proote and sustain a healthy competitive environment in the DNS market that enhances consumer trust and choice.†(Para 107, page 27 Initial Draft Proposal) In the 2nd Draft Proposal we elected to delete the reference to consumer trust in the Mission statement and include it in the Review section of the Bylaws (See 3rd Report, Appendix 9, Para. 33). The reason we agreed to make this switch was because it is not a standalone ICANN commitment in the AoC, rather, it is specifically tied to new gTLD expansion and specifically tied to a required review. Several commenters in both the 2nd and 3rd comment round argued that the Core Values should specifically call out consumer trust. Some have disputed my characterization of Paragraph 3 of the AoC (i.e., it states the goals of the AoC but does not recite a specific commitment), on the grounds that my characterization is an opinion and not a fact. QUESTIONS: Should an AoC provision specific to TLD expansion be leveraged to impose generalized, independent, and affirmative competition and consumer trust protection obligations on ICANN? Does ICANN’s fundamental Mission to ensure “stable and secure operation†of the DNS, and its various Commitments (i.e., to use processes that enable competition, and to preserve stability, reliability, security, global interoperability, resilience, and openness) adequately address this concern?
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/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=>_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=UpqXB2b5N4s7L-iJXsaW6-FyEcpJIGblvzhi6KLarns&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25EF-2...> ******************************* _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Carlos – see responses in blue below 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: Carlos Raúl Gutiérrez <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> Date: Tuesday, January 12, 2016 at 3:01 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Carlos Raúl Gutiérrez via CCT-Review <cct-review@icann.org<mailto:cct-review@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Dear Becky, as a I´m eagerly waiting in line for some issues allocated to WS2 and member of the CCT Review Team that starts tomorrow by the way, I follow this thread with particular interest. I kindly ask for 3 clarifications: * I ask you kindly to explain in plain language what " introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs” means. I read the language in paragraph 3 of the Affirmation of Commitments regarding “consumer trust” to refer to the specific reference in Paragraph 9.3 of the AoC, which is entitled "9.3 Promoting competition, consumer trust, and consumer choice” (just like the language in Paragraph 3) and which obligates ICANN to conduct various reviews to ensure that as it contemplates expanding the top-level domain space, the various issues that are involved (including competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection) will be adequately addressed prior to implementation. Those who want to reference to ICANN’s role with respect to “consumer trust” in Article 1 of the Bylaws argue that the reference to “consumer trust” in Paragraph 3 and Paragraph 9.3 are completely unrelated, and that Paragraph 3 is intended to apply generally to ICANN’s activities – not just its expansion of the top-level domain space. That “general” consumer trust role would be “untethered” (not limited to) TLD expansion activities. I hope that makes sense and apologize for any confusion. * Also going back to a previous mail, I also reacted to your initial question by suggesting to at least separate Consumer Trust from the two other elements well know in the economic literature (Competition and Choice) and would understand from your position that right now we are effectively separating this two sides of the initial title in the AoC that puts them together. I don’t propose to separate them in the context that they appear in the AoC – new gTLDs. I just object to adding the concepts of consumer trust and consumer choice to Article 1 of the ICANN Bylaws. The competition language is distinct because the ICANN Bylaws have referenced competition-related roles for some time. For example, existing Core Value 5 requires ICANN to depend on market mechanisms to promote and sustain a competitive environment and existing Core Value 6 requires ICANN to introduce and promote competition in the registration of domain names. The existing Bylaws do not reference consumer choice or consumer trust. I do not think that ICANN possesses either the expertise or authority to take on affirmative obligations with respect to consumer protection, and I don’t think we have fully considered the consequences of including a reference to those roles in Article 1 at this time. * Additionally, in Steve Del Bianco second mail to the thread he referred to a set of definition from a previous working group (AIG report) on CCT. I would like to ask you if those definitions out of a WG can be considered to be a reasonable point of reference. I thought the definitions that Steve shared were excellent – but those definitions were specifically developed in the context of new gTLD expansion. So I clearly think that they should be used to review issues of competition, choice and trust in the context of new gTLD expansion. thank you very much Carlos Raúl Gutiérrez _____________________ email: crg@isoc-cr.org<mailto:crg@isoc-cr.org> Skype: carlos.raulg +506 8837 7176 (cel) +506 4000 2000 (home) +506 2290 3678 (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA On 12Jan, 2016, at 13:08, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I reject the argument that we have turned Article 1 into a “ Christmas tree” already and should thus not object to adding an additional consumer protection role for ICANN. I commend folks to look at the three column side by side analysis of the changes to Commitments and Core Values in the 3rd Draft Report. The relevant chart starts on page 11 of Annex 5. I believe that it demonstrates pretty conclusively that in transposing the AoC and the NTIA requirements into Section 1 of the Bylaws we have not YET introduced an entirely new concept into ICANN’s wheelhouse. The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself. I urge you to review this argument by reference to the actual text in the proposal, which includes the 3 column comparison. Here’s my analysis below for those who are interested. At the end I explain again why I am deeply opposed to including a reference to “consumer trust” untethered to the new gTLD context. Commitment 1. You can see (from the blue text at the top of page 12) that we added language regarding operation “consistent with its bylaws for the benefit of the Internet community as a whole, international law, open and transparent process, and competition. The obligation to comply with bylaws (limited Mission) appears now in (existing) Core Value 2; the competition provisions appear in (existing Core Values 5 and 6); the reference to international law appears in the existing Articles of Incorporation, as does the reference to the benefit of the Internet community as a whole; transparency gets a whole section in ICANN’s existing Bylaws. Commitment 2 incorporates the concept of neutral and judgment free [operation of the DNS], which we agreed would become "Preserve and enhance the neutral and judgment free administration of the technical DNS.” We also added direct references to interoperability, resilience, and openness. I don’t think any of these concepts are new. To the extent that they are, they are specifically cited as a requirement for the transition to proceed. Commitment 3 requires ICANN to maintain the capacity and ability to do its work in support of a singer interoperable Internet. While this language is new, it strikes me as basic service to its stability and security Mission. Commitment 4 is a very modest restatement of existing Core Value 2. Commitment 5 restates existing Core Value 7, and restates clearly accepted commitments to bottom-up, multistakeholder processes, private sector leadership informed by public policy advice, etc. All of these concepts appear in the existing Bylaws. While the phrases "bottom-up" and “multistakeholder” may not appear, they are echoes from the White Paper and the PDP spelled out in the Bylaws. Commitment 6 restates existing Core Value 8. Commitment 7 restates existing Core Value 10. Core Value 2 (which is really 1, but for some reason the chapeau is numbered here) restates existing Core Value 3, Core Value 7, and Core Value 9. Core Value 3 (should be 2) restates existing Core Value 4 and again references the use of bottom-up, multistakeholder processes. Core Value 4 (should be 3) restates existing Core Value 5. Core Value 5 (should be 4) restates existing Core Value 6 and again references the use of bottom-up, multistakeholder processes. Core Value 6 (should be 5) restates existing Core Value 9 and adds the concept of fiscal responsibility and accountability. Accountability already appears in the ICANN Bylaws, and it is hard to make the case that requiring ICANN to be fiscally responsible reflects a new role or obligation. Core Value 7 (should be 6) restates existing Core Value 11. Core Value 8 (should be 7) is new – but references the need to employ processes and procedures to prevent capture. Again, that strikes me as inherent in being accountable, serving the Internet community as a whole, etc. Accordingly, I remain strongly opposed to introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs. Some argue that promoting “consumer trust” in general (as opposed to in the context of new gTLDs) is demonstrably separable from sovereign legal concepts governing consumer protection, but don’t (and really can’t) support that by reference to national or international law. We really do not have a grip on the unintended consequences that this language could have, in particular, on registries – both gTLDs and ccTLDs – registrars, and entities that services that use the Internet’s unique identifiers. I am particularly concerned that this raises issues related to content regulation – consumer protection law is at its heart involves regulation of speech (albeit, commercial speech). I am happy to further explore this concept as part of Work Stream 2 (or separately). Becky 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: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Date: Tuesday, January 12, 2016 at 9:40 AM To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Cc: Jonathan Zuck <jzuck@actonline.org<mailto:jzuck@actonline.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Jonathan Zuck wrote: Agree with Steve here. We need to keep core values minimal. This Christmas Tree is already getting weighed down a bit too much for my tastes. Alan Greenberg wrote: Oh I agree. But it got heavy a long time ago. If we want to start stripping stuff out that we have added, I am all for it. Why all this vehemence about this one item? I would suggest that it's because (a) while we may not have reached a tipping point of weighing down the Christmas Tree with so many values and commitments that ICANN will be able, in effect, to do whatever it likes itn the future, we're perilously close, and we should resist the temptation to add any new ones (including this one). And (b) there are far too many things ICANN would be able to justify (in good faith) as being designed to "increase consumer trust" that would take it very far from its core mission - instituting a program to investigate and remedy false, fraudulent, or defamatory claims on websites, for instance. David Alan From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> > Date: Saturday, January 9, 2016 at 11:10 AM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> >, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Our recommendation #9 is Incorporating the Affirmation of Commitments in ICANN’s Bylaws. That includes commitments made by ICANN in the AoC, such as the commitment cited by Becky, to "promote competition, consumer trust, and consumer choice in the DNS marketplace." First, I don’t think we should casually discard any of those three commitment items just because it is difficult to define. The AoC review that’s just begun will develop working definitions as part of its review. I would answer 'No' to both of Becky’s questions. This commitment does not need to be part of Core Values, and could live in the bylaws section describing the required AoC review of any expansion of new gTLDs. Since it is in the bylaws, ICANN’s fulfillment of this commitment could be the subject of an IRP. And any changes to this commitment would be subject to veto by the empowered community. From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> > Date: Friday, January 8, 2016 at 2:10 PM To: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] "Consumer Trust" in the Mission Statement As discussed in our call yesterday, we would like to get some discussion started on some of the issues with the Mission Statement, Commitments & Core Values elements of the CCWG Proposal. One of those issues relates to the inclusion of the concept of promoting “consumer trust†in the Commitments and/or Core Values. The USCIB comment, for example, urged inclusion of a Commitment/Core Value of “promoting competition, consumer trust, and consumer choice in the DNS marketplace.†ALAC urged inclusion of the consumer trust language. This is the topic we will discuss on Monday, during the Ad Hoc meeting just announced. Feel free to contribute your views in this thread, particularly if you are not going to be able to participate on Monday. ISSUE: Paragraph 3 of the Affirmation of Commitments describes the goals of the AoC, saying: "This document affirms key commitments by DOC and ICANN, including commitments to: … (c) promote competition, consumer trust, and consumer choice in the DNS marketplace….†Paragraph 9.3 of the AoC says: … IIf and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice …. ICANN will organize a further review of its execution of the above commitments two years after the first review, and then no less frequently than every four years. In the Initial Draft Proposal, this AoC language was transposed into the Core Values by requiring ICANN to depend “on market mechanisms to proote and sustain a healthy competitive environment in the DNS market that enhances consumer trust and choice.†(Para 107, page 27 Initial Draft Proposal) In the 2nd Draft Proposal we elected to delete the reference to consumer trust in the Mission statement and include it in the Review section of the Bylaws (See 3rd Report, Appendix 9, Para. 33). The reason we agreed to make this switch was because it is not a standalone ICANN commitment in the AoC, rather, it is specifically tied to new gTLD expansion and specifically tied to a required review. Several commenters in both the 2nd and 3rd comment round argued that the Core Values should specifically call out consumer trust. Some have disputed my characterization of Paragraph 3 of the AoC (i.e., it states the goals of the AoC but does not recite a specific commitment), on the grounds that my characterization is an opinion and not a fact. QUESTIONS: Should an AoC provision specific to TLD expansion be leveraged to impose generalized, independent, and affirmative competition and consumer trust protection obligations on ICANN? Does ICANN’s fundamental Mission to ensure “stable and secure operation†of the DNS, and its various Commitments (i.e., to use processes that enable competition, and to preserve stability, reliability, security, global interoperability, resilience, and openness) adequately address this concern? 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/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=UpqXB2b5N4s7L-iJXsaW6-FyEcpJIGblvzhi6KLarns&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic<https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=J87XSge-oxlXPP7Q38XN_CMENLTL4Kz0XERCuQxBYPg&e=> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25EF-2...> ******************************* _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVPyuV8Pn_LvN6l2D9KW5vEHh9jtwcjN8VYsOmet208&s=PL71Z1FoQAHz_X0nPQ32xydG1BreYsxGcV2Gfbt4XZA&e=>
Carlos Raul, I presented those definitions (below) as examples of how our community is capable of defining concepts like ‘consumer’, ‘consumer trust’ and ‘consumer choice’. We created those definitions in a multi-stakeholder working group chartered to prepare for the AoC review on the 2012 gTLD expansion. So it’s a ‘point of reference’ only in that we should not fear having those concepts in the bylaws, where we already have similar terms like public interest, security, stability, resiliency, etc. I do not recommend that we bring those definitions into the bylaws — especially because they were developed only to review the gTLD expansion and would not apply to ccTLDs or legacy TLDs. Here are working definitions of ‘Consumer' and 'Consumer Trust', from the 2012 Working Group that defined measures and metrics for the AoC Review of the 2012 gTLD expansion (<http://gnso.icann.org/en/issues/cctc/cctc-final-advice-letter-31oct12-en.pdf>link<http://gnso.icann.org/en/issues/cctc/cctc-final-advice-letter-05dec12-en.pdf> to WG report, page 5): Consumer is defined as actual and potential Internet users and registrants. Consumer Trust is defined as the confidence Consumers have in the domain name system. This includes (i) trust in the consistency of name resolution (ii) confidence that a TLD registry operator is fulfilling the Registry’s stated purpose and is complying with ICANN policies and applicable national laws and (iii) confidence in ICANN’s compliance function. Consumer Choice is defined as the range of options available to Consumers for domain scripts and languages, and for TLDs that offer meaningful choices as to the proposed purpose and integrity of their domain name registrants. Competition is defined as the quantity, diversity, and the potential for and actual market rivalry of TLDs, TLD registry operators, and registrars. That WG was created per a Dec-2010 Board resolution (link<http://www.icann.org/en/minutes/resolutions-10dec10-en.htm>) requesting advice from the GNSO, ccNSO, ALAC and GAC on establishing the definition, measures, and three-year targets for competition, consumer trust and consumer choice in the context of the DNS in preparation for the AoC required review of the 2012 gTLD expansion. The WG's final report<http://gnso.icann.org/en/issues/cctc/cctc-final-advice-letter-05dec12-en.pdf> was adopted by its chartering organizations, GNSO and ALAC, with ALAC adding several additional measures. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Carlos Raúl Gutiérrez <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> Date: Tuesday, January 12, 2016 at 3:01 PM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Carlos Raúl Gutiérrez via CCT-Review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Dear Becky, as a I´m eagerly waiting in line for some issues allocated to WS2 and member of the CCT Review Team that starts tomorrow by the way, I follow this thread with particular interest. I kindly ask for 3 clarifications: * I ask you kindly to explain in plain language what " introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs” means. * Also going back to a previous mail, I also reacted to your initial question by suggesting to at least separate Consumer Trust from the two other elements well know in the economic literature (Competition and Choice) and would understand from your position that right now we are effectively separating this two sides of the initial title in the AoC that puts them together. * Additionally, in Steve Del Bianco second mail to the thread he referred to a set of definition from a previous working group (AIG report) on CCT. I would like to ask you if those definitions out of a WG can be considered to be a reasonable point of reference. thank you very much Carlos Raúl Gutiérrez _____________________ email: crg@isoc-cr.org<mailto:crg@isoc-cr.org> Skype: carlos.raulg +506 8837 7176 (cel) +506 4000 2000 (home) +506 2290 3678 (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA On 12Jan, 2016, at 13:08, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I reject the argument that we have turned Article 1 into a “ Christmas tree” already and should thus not object to adding an additional consumer protection role for ICANN. I commend folks to look at the three column side by side analysis of the changes to Commitments and Core Values in the 3rd Draft Report. The relevant chart starts on page 11 of Annex 5. I believe that it demonstrates pretty conclusively that in transposing the AoC and the NTIA requirements into Section 1 of the Bylaws we have not YET introduced an entirely new concept into ICANN’s wheelhouse. The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself. I urge you to review this argument by reference to the actual text in the proposal, which includes the 3 column comparison. Here’s my analysis below for those who are interested. At the end I explain again why I am deeply opposed to including a reference to “consumer trust” untethered to the new gTLD context. Commitment 1. You can see (from the blue text at the top of page 12) that we added language regarding operation “consistent with its bylaws for the benefit of the Internet community as a whole, international law, open and transparent process, and competition. The obligation to comply with bylaws (limited Mission) appears now in (existing) Core Value 2; the competition provisions appear in (existing Core Values 5 and 6); the reference to international law appears in the existing Articles of Incorporation, as does the reference to the benefit of the Internet community as a whole; transparency gets a whole section in ICANN’s existing Bylaws. Commitment 2 incorporates the concept of neutral and judgment free [operation of the DNS], which we agreed would become "Preserve and enhance the neutral and judgment free administration of the technical DNS.” We also added direct references to interoperability, resilience, and openness. I don’t think any of these concepts are new. To the extent that they are, they are specifically cited as a requirement for the transition to proceed. Commitment 3 requires ICANN to maintain the capacity and ability to do its work in support of a singer interoperable Internet. While this language is new, it strikes me as basic service to its stability and security Mission. Commitment 4 is a very modest restatement of existing Core Value 2. Commitment 5 restates existing Core Value 7, and restates clearly accepted commitments to bottom-up, multistakeholder processes, private sector leadership informed by public policy advice, etc. All of these concepts appear in the existing Bylaws. While the phrases "bottom-up" and “multistakeholder” may not appear, they are echoes from the White Paper and the PDP spelled out in the Bylaws. Commitment 6 restates existing Core Value 8. Commitment 7 restates existing Core Value 10. Core Value 2 (which is really 1, but for some reason the chapeau is numbered here) restates existing Core Value 3, Core Value 7, and Core Value 9. Core Value 3 (should be 2) restates existing Core Value 4 and again references the use of bottom-up, multistakeholder processes. Core Value 4 (should be 3) restates existing Core Value 5. Core Value 5 (should be 4) restates existing Core Value 6 and again references the use of bottom-up, multistakeholder processes. Core Value 6 (should be 5) restates existing Core Value 9 and adds the concept of fiscal responsibility and accountability. Accountability already appears in the ICANN Bylaws, and it is hard to make the case that requiring ICANN to be fiscally responsible reflects a new role or obligation. Core Value 7 (should be 6) restates existing Core Value 11. Core Value 8 (should be 7) is new – but references the need to employ processes and procedures to prevent capture. Again, that strikes me as inherent in being accountable, serving the Internet community as a whole, etc. Accordingly, I remain strongly opposed to introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs. Some argue that promoting “consumer trust” in general (as opposed to in the context of new gTLDs) is demonstrably separable from sovereign legal concepts governing consumer protection, but don’t (and really can’t) support that by reference to national or international law. We really do not have a grip on the unintended consequences that this language could have, in particular, on registries – both gTLDs and ccTLDs – registrars, and entities that services that use the Internet’s unique identifiers. I am particularly concerned that this raises issues related to content regulation – consumer protection law is at its heart involves regulation of speech (albeit, commercial speech). I am happy to further explore this concept as part of Work Stream 2 (or separately). Becky 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: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Date: Tuesday, January 12, 2016 at 9:40 AM To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Cc: Jonathan Zuck <jzuck@actonline.org<mailto:jzuck@actonline.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Jonathan Zuck wrote: Agree with Steve here. We need to keep core values minimal. This Christmas Tree is already getting weighed down a bit too much for my tastes. Alan Greenberg wrote: Oh I agree. But it got heavy a long time ago. If we want to start stripping stuff out that we have added, I am all for it. Why all this vehemence about this one item? I would suggest that it's because (a) while we may not have reached a tipping point of weighing down the Christmas Tree with so many values and commitments that ICANN will be able, in effect, to do whatever it likes itn the future, we're perilously close, and we should resist the temptation to add any new ones (including this one). And (b) there are far too many things ICANN would be able to justify (in good faith) as being designed to "increase consumer trust" that would take it very far from its core mission - instituting a program to investigate and remedy false, fraudulent, or defamatory claims on websites, for instance. David Alan From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> > Date: Saturday, January 9, 2016 at 11:10 AM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> >, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Our recommendation #9 is Incorporating the Affirmation of Commitments in ICANN’s Bylaws. That includes commitments made by ICANN in the AoC, such as the commitment cited by Becky, to "promote competition, consumer trust, and consumer choice in the DNS marketplace." First, I don’t think we should casually discard any of those three commitment items just because it is difficult to define. The AoC review that’s just begun will develop working definitions as part of its review. I would answer 'No' to both of Becky’s questions. This commitment does not need to be part of Core Values, and could live in the bylaws section describing the required AoC review of any expansion of new gTLDs. Since it is in the bylaws, ICANN’s fulfillment of this commitment could be the subject of an IRP. And any changes to this commitment would be subject to veto by the empowered community. From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> > Date: Friday, January 8, 2016 at 2:10 PM To: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] "Consumer Trust" in the Mission Statement As discussed in our call yesterday, we would like to get some discussion started on some of the issues with the Mission Statement, Commitments & Core Values elements of the CCWG Proposal. One of those issues relates to the inclusion of the concept of promoting “consumer trust†in the Commitments and/or Core Values. The USCIB comment, for example, urged inclusion of a Commitment/Core Value of “promoting competition, consumer trust, and consumer choice in the DNS marketplace.†ALAC urged inclusion of the consumer trust language. This is the topic we will discuss on Monday, during the Ad Hoc meeting just announced. Feel free to contribute your views in this thread, particularly if you are not going to be able to participate on Monday. ISSUE: Paragraph 3 of the Affirmation of Commitments describes the goals of the AoC, saying: "This document affirms key commitments by DOC and ICANN, including commitments to: … (c) promote competition, consumer trust, and consumer choice in the DNS marketplace….†Paragraph 9.3 of the AoC says: … IIf and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice …. ICANN will organize a further review of its execution of the above commitments two years after the first review, and then no less frequently than every four years. In the Initial Draft Proposal, this AoC language was transposed into the Core Values by requiring ICANN to depend “on market mechanisms to proote and sustain a healthy competitive environment in the DNS market that enhances consumer trust and choice.†(Para 107, page 27 Initial Draft Proposal) In the 2nd Draft Proposal we elected to delete the reference to consumer trust in the Mission statement and include it in the Review section of the Bylaws (See 3rd Report, Appendix 9, Para. 33). The reason we agreed to make this switch was because it is not a standalone ICANN commitment in the AoC, rather, it is specifically tied to new gTLD expansion and specifically tied to a required review. Several commenters in both the 2nd and 3rd comment round argued that the Core Values should specifically call out consumer trust. Some have disputed my characterization of Paragraph 3 of the AoC (i.e., it states the goals of the AoC but does not recite a specific commitment), on the grounds that my characterization is an opinion and not a fact. QUESTIONS: Should an AoC provision specific to TLD expansion be leveraged to impose generalized, independent, and affirmative competition and consumer trust protection obligations on ICANN? Does ICANN’s fundamental Mission to ensure “stable and secure operation†of the DNS, and its various Commitments (i.e., to use processes that enable competition, and to preserve stability, reliability, security, global interoperability, resilience, and openness) adequately address this concern? 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/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=UpqXB2b5N4s7L-iJXsaW6-FyEcpJIGblvzhi6KLarns&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic<https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=J87XSge-oxlXPP7Q38XN_CMENLTL4Kz0XERCuQxBYPg&e=> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25EF-2...> ******************************* _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
This is a good example of ensuring appropriate context – here the definitions were developed specifically to inform review of the gTLD expansion and may or may not make sense in a broader or more generalized context. 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: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Tuesday, January 12, 2016 at 4:43 PM To: Carlos Raúl Gutiérrez <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Carlos Raúl Gutiérrez via CCT-Review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Carlos Raul, I presented those definitions (below) as examples of how our community is capable of defining concepts like ‘consumer’, ‘consumer trust’ and ‘consumer choice’. We created those definitions in a multi-stakeholder working group chartered to prepare for the AoC review on the 2012 gTLD expansion. So it’s a ‘point of reference’ only in that we should not fear having those concepts in the bylaws, where we already have similar terms like public interest, security, stability, resiliency, etc. I do not recommend that we bring those definitions into the bylaws — especially because they were developed only to review the gTLD expansion and would not apply to ccTLDs or legacy TLDs. Here are working definitions of ‘Consumer' and 'Consumer Trust', from the 2012 Working Group that defined measures and metrics for the AoC Review of the 2012 gTLD expansion (<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_issues_cctc_cctc-2Dfinal-2Dadvice-2Dletter-2D31oct12-2Den.pdf&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=IyJWNj9jZ4-echjBC-piimSmeqCTi7fEjHrfb332URE&s=BhIayqqFNcMWP20aYoup9ioX5bJsakJcysmdtZkPHc4&e=>link<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_issues_cctc_cctc-2Dfinal-2Dadvice-2Dletter-2D05dec12-2Den.pdf&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=IyJWNj9jZ4-echjBC-piimSmeqCTi7fEjHrfb332URE&s=_MuZT7btvMzeekAGQnGCliNEVhjkEAAEwXoMfLhVzaM&e=> to WG report, page 5): Consumer is defined as actual and potential Internet users and registrants. Consumer Trust is defined as the confidence Consumers have in the domain name system. This includes (i) trust in the consistency of name resolution (ii) confidence that a TLD registry operator is fulfilling the Registry’s stated purpose and is complying with ICANN policies and applicable national laws and (iii) confidence in ICANN’s compliance function. Consumer Choice is defined as the range of options available to Consumers for domain scripts and languages, and for TLDs that offer meaningful choices as to the proposed purpose and integrity of their domain name registrants. Competition is defined as the quantity, diversity, and the potential for and actual market rivalry of TLDs, TLD registry operators, and registrars. That WG was created per a Dec-2010 Board resolution (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.icann.org_en_minutes...>) requesting advice from the GNSO, ccNSO, ALAC and GAC on establishing the definition, measures, and three-year targets for competition, consumer trust and consumer choice in the context of the DNS in preparation for the AoC required review of the 2012 gTLD expansion. The WG's final report<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_issues...> was adopted by its chartering organizations, GNSO and ALAC, with ALAC adding several additional measures. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Carlos Raúl Gutiérrez <crg@isoc-cr.org<mailto:crg@isoc-cr.org>> Date: Tuesday, January 12, 2016 at 3:01 PM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Carlos Raúl Gutiérrez via CCT-Review <cct-review@icann.org<mailto:cct-review@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Dear Becky, as a I´m eagerly waiting in line for some issues allocated to WS2 and member of the CCT Review Team that starts tomorrow by the way, I follow this thread with particular interest. I kindly ask for 3 clarifications: * I ask you kindly to explain in plain language what " introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs” means. * Also going back to a previous mail, I also reacted to your initial question by suggesting to at least separate Consumer Trust from the two other elements well know in the economic literature (Competition and Choice) and would understand from your position that right now we are effectively separating this two sides of the initial title in the AoC that puts them together. * Additionally, in Steve Del Bianco second mail to the thread he referred to a set of definition from a previous working group (AIG report) on CCT. I would like to ask you if those definitions out of a WG can be considered to be a reasonable point of reference. thank you very much Carlos Raúl Gutiérrez _____________________ email: crg@isoc-cr.org<mailto:crg@isoc-cr.org> Skype: carlos.raulg +506 8837 7176 (cel) +506 4000 2000 (home) +506 2290 3678 (fax) _____________________ Apartado 1571-1000 San Jose, COSTA RICA On 12Jan, 2016, at 13:08, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I reject the argument that we have turned Article 1 into a “ Christmas tree” already and should thus not object to adding an additional consumer protection role for ICANN. I commend folks to look at the three column side by side analysis of the changes to Commitments and Core Values in the 3rd Draft Report. The relevant chart starts on page 11 of Annex 5. I believe that it demonstrates pretty conclusively that in transposing the AoC and the NTIA requirements into Section 1 of the Bylaws we have not YET introduced an entirely new concept into ICANN’s wheelhouse. The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself. I urge you to review this argument by reference to the actual text in the proposal, which includes the 3 column comparison. Here’s my analysis below for those who are interested. At the end I explain again why I am deeply opposed to including a reference to “consumer trust” untethered to the new gTLD context. Commitment 1. You can see (from the blue text at the top of page 12) that we added language regarding operation “consistent with its bylaws for the benefit of the Internet community as a whole, international law, open and transparent process, and competition. The obligation to comply with bylaws (limited Mission) appears now in (existing) Core Value 2; the competition provisions appear in (existing Core Values 5 and 6); the reference to international law appears in the existing Articles of Incorporation, as does the reference to the benefit of the Internet community as a whole; transparency gets a whole section in ICANN’s existing Bylaws. Commitment 2 incorporates the concept of neutral and judgment free [operation of the DNS], which we agreed would become "Preserve and enhance the neutral and judgment free administration of the technical DNS.” We also added direct references to interoperability, resilience, and openness. I don’t think any of these concepts are new. To the extent that they are, they are specifically cited as a requirement for the transition to proceed. Commitment 3 requires ICANN to maintain the capacity and ability to do its work in support of a singer interoperable Internet. While this language is new, it strikes me as basic service to its stability and security Mission. Commitment 4 is a very modest restatement of existing Core Value 2. Commitment 5 restates existing Core Value 7, and restates clearly accepted commitments to bottom-up, multistakeholder processes, private sector leadership informed by public policy advice, etc. All of these concepts appear in the existing Bylaws. While the phrases "bottom-up" and “multistakeholder” may not appear, they are echoes from the White Paper and the PDP spelled out in the Bylaws. Commitment 6 restates existing Core Value 8. Commitment 7 restates existing Core Value 10. Core Value 2 (which is really 1, but for some reason the chapeau is numbered here) restates existing Core Value 3, Core Value 7, and Core Value 9. Core Value 3 (should be 2) restates existing Core Value 4 and again references the use of bottom-up, multistakeholder processes. Core Value 4 (should be 3) restates existing Core Value 5. Core Value 5 (should be 4) restates existing Core Value 6 and again references the use of bottom-up, multistakeholder processes. Core Value 6 (should be 5) restates existing Core Value 9 and adds the concept of fiscal responsibility and accountability. Accountability already appears in the ICANN Bylaws, and it is hard to make the case that requiring ICANN to be fiscally responsible reflects a new role or obligation. Core Value 7 (should be 6) restates existing Core Value 11. Core Value 8 (should be 7) is new – but references the need to employ processes and procedures to prevent capture. Again, that strikes me as inherent in being accountable, serving the Internet community as a whole, etc. Accordingly, I remain strongly opposed to introducing a generalized obligation that ICANN promote “consumer trust” in the DNS and Internet untethered to ICANN’s role in new gTLDs. Some argue that promoting “consumer trust” in general (as opposed to in the context of new gTLDs) is demonstrably separable from sovereign legal concepts governing consumer protection, but don’t (and really can’t) support that by reference to national or international law. We really do not have a grip on the unintended consequences that this language could have, in particular, on registries – both gTLDs and ccTLDs – registrars, and entities that services that use the Internet’s unique identifiers. I am particularly concerned that this raises issues related to content regulation – consumer protection law is at its heart involves regulation of speech (albeit, commercial speech). I am happy to further explore this concept as part of Work Stream 2 (or separately). Becky 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: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Date: Tuesday, January 12, 2016 at 9:40 AM To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Cc: Jonathan Zuck <jzuck@actonline.org<mailto:jzuck@actonline.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Jonathan Zuck wrote: Agree with Steve here. We need to keep core values minimal. This Christmas Tree is already getting weighed down a bit too much for my tastes. Alan Greenberg wrote: Oh I agree. But it got heavy a long time ago. If we want to start stripping stuff out that we have added, I am all for it. Why all this vehemence about this one item? I would suggest that it's because (a) while we may not have reached a tipping point of weighing down the Christmas Tree with so many values and commitments that ICANN will be able, in effect, to do whatever it likes itn the future, we're perilously close, and we should resist the temptation to add any new ones (including this one). And (b) there are far too many things ICANN would be able to justify (in good faith) as being designed to "increase consumer trust" that would take it very far from its core mission - instituting a program to investigate and remedy false, fraudulent, or defamatory claims on websites, for instance. David Alan From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> > Date: Saturday, January 9, 2016 at 11:10 AM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> >, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Consumer Trust" in the Mission Statement Our recommendation #9 is Incorporating the Affirmation of Commitments in ICANN’s Bylaws. That includes commitments made by ICANN in the AoC, such as the commitment cited by Becky, to "promote competition, consumer trust, and consumer choice in the DNS marketplace." First, I don’t think we should casually discard any of those three commitment items just because it is difficult to define. The AoC review that’s just begun will develop working definitions as part of its review. I would answer 'No' to both of Becky’s questions. This commitment does not need to be part of Core Values, and could live in the bylaws section describing the required AoC review of any expansion of new gTLDs. Since it is in the bylaws, ICANN’s fulfillment of this commitment could be the subject of an IRP. And any changes to this commitment would be subject to veto by the empowered community. From: < accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> > Date: Friday, January 8, 2016 at 2:10 PM To: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] "Consumer Trust" in the Mission Statement As discussed in our call yesterday, we would like to get some discussion started on some of the issues with the Mission Statement, Commitments & Core Values elements of the CCWG Proposal. One of those issues relates to the inclusion of the concept of promoting “consumer trust†in the Commitments and/or Core Values. The USCIB comment, for example, urged inclusion of a Commitment/Core Value of “promoting competition, consumer trust, and consumer choice in the DNS marketplace.†ALAC urged inclusion of the consumer trust language. This is the topic we will discuss on Monday, during the Ad Hoc meeting just announced. Feel free to contribute your views in this thread, particularly if you are not going to be able to participate on Monday. ISSUE: Paragraph 3 of the Affirmation of Commitments describes the goals of the AoC, saying: "This document affirms key commitments by DOC and ICANN, including commitments to: … (c) promote competition, consumer trust, and consumer choice in the DNS marketplace….†Paragraph 9.3 of the AoC says: … IIf and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice …. ICANN will organize a further review of its execution of the above commitments two years after the first review, and then no less frequently than every four years. In the Initial Draft Proposal, this AoC language was transposed into the Core Values by requiring ICANN to depend “on market mechanisms to proote and sustain a healthy competitive environment in the DNS market that enhances consumer trust and choice.†(Para 107, page 27 Initial Draft Proposal) In the 2nd Draft Proposal we elected to delete the reference to consumer trust in the Mission statement and include it in the Review section of the Bylaws (See 3rd Report, Appendix 9, Para. 33). The reason we agreed to make this switch was because it is not a standalone ICANN commitment in the AoC, rather, it is specifically tied to new gTLD expansion and specifically tied to a required review. Several commenters in both the 2nd and 3rd comment round argued that the Core Values should specifically call out consumer trust. Some have disputed my characterization of Paragraph 3 of the AoC (i.e., it states the goals of the AoC but does not recite a specific commitment), on the grounds that my characterization is an opinion and not a fact. QUESTIONS: Should an AoC provision specific to TLD expansion be leveraged to impose generalized, independent, and affirmative competition and consumer trust protection obligations on ICANN? Does ICANN’s fundamental Mission to ensure “stable and secure operation†of the DNS, and its various Commitments (i.e., to use processes that enable competition, and to preserve stability, reliability, security, global interoperability, resilience, and openness) adequately address this concern? 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/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=S40xFzrQgu3gB4EC49xZEMzl8piQCGDlUc-3LiT5bx0&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=UpqXB2b5N4s7L-iJXsaW6-FyEcpJIGblvzhi6KLarns&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic<https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NtkBowesRAzbMpwys793DjrRP7JS0cud1PvjbfHJXyc&s=J87XSge-oxlXPP7Q38XN_CMENLTL4Kz0XERCuQxBYPg&e=> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25EF-2...> ******************************* _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=IyJWNj9jZ4-echjBC-piimSmeqCTi7fEjHrfb332URE&s=widUG0vgWxJf0_t9mlqq1kS_Q6qZcNJGjMFVJAOml1U&e=>
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself.
I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
I agree fully with Becky and Andrew on this. Regards, Keith
On Jan 12, 2016, at 4:32 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself.
I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I support Becky's argument along with Andrew and Keith. cheers Jordan On 13 January 2016 at 10:36, Drazek, Keith <kdrazek@verisign.com> wrote:
I agree fully with Becky and Andrew on this.
Regards, Keith
On Jan 12, 2016, at 4:32 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself.
I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
Hi, Not sure I buy into the Xmas tree analogy, especially when trying to delineate values. And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet. I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely. As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours. avri On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized “consumer trust” role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN’s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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Avri, The exercise of delegated rule making (Prof. Froomkin's language, not the more familar Jones Day's language) does not vacate the delegating agency's larger obligations, which includes a respect for human rights. [1]
I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
So I agree with your statement as to where the responsibility lies. Eric Brunner-Williams Eugene, Oregon [1] Some laughter is permissible at the human rights pretentions of the USG.
Thank you Eric, the footnote is greatly appreciated from down here in Central America. I would never make fun of the pretentions, and greatly respect your internal values and freedoms as per your constitution a lot. But the external track record is indeed inconsistent. For that reason I prefer to leave ICANN out of this discussion. The fight for human rights is at a different level. Carlos Raúl Gutiérrez ISOC Costa Rica Chapter skype carlos.raulg +506 8837 7176 (New Phone number!!!!) ________ Apartado 1571-1000 COSTA RICA On Tue, Jan 12, 2016 at 6:44 PM, Eric (Maule) Brunner-Williams < ebw@abenaki.wabanaki.net> wrote:
Avri,
The exercise of delegated rule making (Prof. Froomkin's language, not the more familar Jones Day's language) does not vacate the delegating agency's larger obligations, which includes a respect for human rights. [1]
I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
So I agree with your statement as to where the responsibility lies.
Eric Brunner-Williams Eugene, Oregon
[1] Some laughter is permissible at the human rights pretentions of the USG. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Carlos,
For that reason I prefer to leave ICANN out of this discussion. The fight for human rights is at a different level.
Perhaps we could agree that from the earliest publications on packetized communications, to the present, that those who contributed to what became the ongoing activity of technical coordination of unique identifiers and protocol parameters, have acted, as well as have argued, to extend the benefits of unique identifiers for packetized communications, to later adopters. Perhaps we could agree that, however tragic, and comic, the USG's record is in promoting human rights, the NTIA has some obligation, even some record of activities, the benefits of which are not limited to domestic national interests. It might be more time consuming, but perhaps we could agree that no other institution currently has, as its core mission, the continuous correct function of what kc claffy has baptized the "skitter core" as a routing platform, and the association of unique identifiers by instances of communication through this concatenation of networks of networks. If we agree to any one of these, or some other possible agreement, then we have a means of promoting, or maintaining, operational art that has the effect of extending the means to access "the internet", which has been referred to as a "human right", and which also is referred to as being "in the public interest". I hope we can agree, whether those who agree there is a "human right" or a "global public interest" form a minority of two or three or four, in this awkward and contentious debate. Eric Brunner-Williams Eugene, Oregon
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach. 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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ³consumer trust² role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN¹s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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Hi, In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws. Of course ICANN can still unilaterally abandon the AOC. I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better. I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up? Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews. avri On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ³consumer trust² role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN¹s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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Come on Avri - I could say that we don’t have sufficient cause - let alone authority - to amend the AoC, but I don’t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue. One group reads Paragraph 3 as a “chapeau” text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC. I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws. I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN’s remit. I know what protecting and promoting “consumer trust” means to a consumer protection regulator with sovereign authority. I don’t think that’s ICANN’s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws. But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2. 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 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ³consumer trust² role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN¹s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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This is almost certainly the correct view. On 13/01/16 19:01, Burr, Becky wrote:
Come on Avri - I could say that we don’t have sufficient cause - let alone authority - to amend the AoC, but I don’t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue.
One group reads Paragraph 3 as a “chapeau” text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC.
I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws.
I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN’s remit. I know what protecting and promoting “consumer trust” means to a consumer protection regulator with sovereign authority. I don’t think that’s ICANN’s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws.
But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2.
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 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ³consumer trust² role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN¹s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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I agree with Becky. I've watched this debate with a little bit of astonishment, to be honest: I share the view that everyone's arguing in good faith, but I can't see how the new gTLD obligation can be made wider. Certainly from a ccTLD perspective, the idea that ICANN could have any role here is just not viable. It isn't ICANN's role, it is the role or responsibility of each ccTLD manager in their own ccTLD. So it seems to me that if people want to try and expand ICANN's remit to intervene in ccTLD matters, that's a non-starter. Why not leave the commitment as it is at the moment, on the new gTLDs, and move ahead and help close this project? cheers Jordan On 14 January 2016 at 08:01, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Come on Avri - I could say that we don’t have sufficient cause - let alone authority - to amend the AoC, but I don’t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue.
One group reads Paragraph 3 as a “chapeau” text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC.
I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws.
I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN’s remit. I know what protecting and promoting “consumer trust” means to a consumer protection regulator with sovereign authority. I don’t think that’s ICANN’s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws.
But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2.
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 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ³consumer trust² role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN¹s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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-- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
I don't think this is an issue of "making the new gTLD obligation wider." The issue is whether Section 3 of the AoC represents a set of commitments in and of itself, or just acts as a sort of chapeau to section 9. I think Section 3 does represent a set of commitments that need to be carried forward into the Bylaws. If they are discarded, that is an affirmative decision to narrow the affirmation of commitments. I note that Section 9 has its own chapeau, and doesn't need a chapeau on top of that. Section 9 is a commitment to conduct reviews, but reviews need to be based on an underlying set of commitments. You don't review for something you have not committed to, and Section 9 does not contain a commitment to any principles, just to conducting reviews to see if those principles are being honored or not. So the commitment must be elsewhere, and that place is Section 3. Section 3 is not unbounded. It is limited to the "DNS marketplace." It's not clear how ICANN itself has viewed this commitment. However, I found an AoC tracking chart that ICANN maintained for some time to be quite relevant in this regard. It's no longer in use but still can be found at https://aoctracking.icann.org/. It's clear from the way that chart is set up and completed that Section 3 is viewed as a set of commitments that stand on their own. I guess that means I agree (in broad strokes) with Avri. Greg On Wed, Jan 13, 2016 at 2:34 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
I agree with Becky. I've watched this debate with a little bit of astonishment, to be honest: I share the view that everyone's arguing in good faith, but I can't see how the new gTLD obligation can be made wider.
Certainly from a ccTLD perspective, the idea that ICANN could have any role here is just not viable. It isn't ICANN's role, it is the role or responsibility of each ccTLD manager in their own ccTLD.
So it seems to me that if people want to try and expand ICANN's remit to intervene in ccTLD matters, that's a non-starter.
Why not leave the commitment as it is at the moment, on the new gTLDs, and move ahead and help close this project?
cheers Jordan
On 14 January 2016 at 08:01, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Come on Avri - I could say that we don’t have sufficient cause - let alone authority - to amend the AoC, but I don’t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue.
One group reads Paragraph 3 as a “chapeau” text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC.
I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws.
I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN’s remit. I know what protecting and promoting “consumer trust” means to a consumer protection regulator with sovereign authority. I don’t think that’s ICANN’s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws.
But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2.
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 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
> The language on human rights would be a departure from that > standard, and the introduction of a generalized ³consumer trust² role > would be yet another. Apart from these two concepts, all of the > assigned roles and responsibilities appear in ICANN¹s existing > Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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My point remains – we have a significant and strongly held disagreement about the scope of ICANN’s consumer trust role under the AoC. We should implement what we do agree about consistent with the 2nd and 3rd draft proposal – that ICANN must pay attention to this through a specific review in connection with gTLD expansion (as required in section 9.3) - and talk about the stuff we don’t agree about (the broader than gTLD expansion context) in WS2. 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: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday, January 13, 2016 at 3:47 PM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws I don't think this is an issue of "making the new gTLD obligation wider." The issue is whether Section 3 of the AoC represents a set of commitments in and of itself, or just acts as a sort of chapeau to section 9. I think Section 3 does represent a set of commitments that need to be carried forward into the Bylaws. If they are discarded, that is an affirmative decision to narrow the affirmation of commitments. I note that Section 9 has its own chapeau, and doesn't need a chapeau on top of that. Section 9 is a commitment to conduct reviews, but reviews need to be based on an underlying set of commitments. You don't review for something you have not committed to, and Section 9 does not contain a commitment to any principles, just to conducting reviews to see if those principles are being honored or not. So the commitment must be elsewhere, and that place is Section 3. Section 3 is not unbounded. It is limited to the "DNS marketplace." It's not clear how ICANN itself has viewed this commitment. However, I found an AoC tracking chart that ICANN maintained for some time to be quite relevant in this regard. It's no longer in use but still can be found at https://aoctracking.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__aoctracking.icann.org_&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=_sk0TAvnXT5WoOeM62TdtAkr6i6G7wkLYsnCBF9ntxQ&s=nD7c5GPqs3tA4g6Fo2leeNIrcFaZYlyEljMgmoBk-fI&e=>. It's clear from the way that chart is set up and completed that Section 3 is viewed as a set of commitments that stand on their own. I guess that means I agree (in broad strokes) with Avri. Greg On Wed, Jan 13, 2016 at 2:34 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: I agree with Becky. I've watched this debate with a little bit of astonishment, to be honest: I share the view that everyone's arguing in good faith, but I can't see how the new gTLD obligation can be made wider. Certainly from a ccTLD perspective, the idea that ICANN could have any role here is just not viable. It isn't ICANN's role, it is the role or responsibility of each ccTLD manager in their own ccTLD. So it seems to me that if people want to try and expand ICANN's remit to intervene in ccTLD matters, that's a non-starter. Why not leave the commitment as it is at the moment, on the new gTLDs, and move ahead and help close this project? cheers Jordan On 14 January 2016 at 08:01, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Come on Avri - I could say that we don’t have sufficient cause - let alone authority - to amend the AoC, but I don’t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue. One group reads Paragraph 3 as a “chapeau” text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC. I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws. I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN’s remit. I know what protecting and promoting “consumer trust” means to a consumer protection regulator with sovereign authority. I don’t think that’s ICANN’s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws. But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz> On 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz>
On 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ³consumer trust² role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN¹s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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On Wed, Jan 13, 2016 at 03:47:06PM -0500, Greg Shatan wrote:
Section 3 is not unbounded. It is limited to the "DNS marketplace."
Ok. Please tell me, what is that marketplace? My employer (Dyn), for instance, sells DNS services to companies. We have many competitors. Dyn has been at this for about 15 years. For a significant chunk of that time, Dyn wasn't even a registrar (which Dyn only does for convenience, really -- it's not our main market). In any case, many of our customers use someone else for domain name registration and just use us for DNS. Indeed, for part of Dyn's history you couldn't do any domain name registration in any TLD with Dyn; instead, you registered a hostname under (say) dyndns.org and Dyn hooked up your dynamically-assigned IP to the DNS with a 5 minute TTL so that you could access your machine at home or wherever. Other companies are in this business too, through today. Under any plain-language meaning of the terms, those behaviours seem to be part of the DNS marketplace. But I claim ICANN has absolutely no business, of any kind, in that marketplace, and if you're going to argue that it does then I think we have a very deep disagreement about where ICANN's responsibilities begin and end. If we're this far apart on that fundamental question, then I think we have a practical problem of hammering out the answer. For practical reasons, I think, we therefore need to kick the question to WS 2 and use the minimal interpretation that is compatible with everyone's interpretation. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Becky, I agree that we have a disagreement. If we kick this to WS2, I think we need to keep Section 3 of the AoC alive until the issue is resolved. We can't just sunset Section 3 on the premise that some of us think it didn't really do anything anyway. Andrew, I don't think we have a disagreement on the point you raise. The "DNS marketplace" is the term that's used in the AoC, so I assume there is background and history to show how that is viewed in this context. So, it's not a plain-language meaning we are looking for, it is a fit-for-purpose definition. As such I don't think what you're describing is part of the "DNS marketplace" for purposes of the AoC. So I don't think we far apart, in this regard. Greg On Wed, Jan 13, 2016 at 4:25 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Wed, Jan 13, 2016 at 03:47:06PM -0500, Greg Shatan wrote:
Section 3 is not unbounded. It is limited to the "DNS marketplace."
Ok. Please tell me, what is that marketplace?
My employer (Dyn), for instance, sells DNS services to companies. We have many competitors. Dyn has been at this for about 15 years. For a significant chunk of that time, Dyn wasn't even a registrar (which Dyn only does for convenience, really -- it's not our main market). In any case, many of our customers use someone else for domain name registration and just use us for DNS. Indeed, for part of Dyn's history you couldn't do any domain name registration in any TLD with Dyn; instead, you registered a hostname under (say) dyndns.org and Dyn hooked up your dynamically-assigned IP to the DNS with a 5 minute TTL so that you could access your machine at home or wherever. Other companies are in this business too, through today.
Under any plain-language meaning of the terms, those behaviours seem to be part of the DNS marketplace. But I claim ICANN has absolutely no business, of any kind, in that marketplace, and if you're going to argue that it does then I think we have a very deep disagreement about where ICANN's responsibilities begin and end. If we're this far apart on that fundamental question, then I think we have a practical problem of hammering out the answer. For practical reasons, I think, we therefore need to kick the question to WS 2 and use the minimal interpretation that is compatible with everyone's interpretation.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Wed, Jan 13, 2016 at 04:40:01PM -0500, Greg Shatan wrote:
The "DNS marketplace" is the term that's used in the AoC, so I assume there is background and history to show how that is viewed in this context.
Several of us (including, I'm afraid, anybody I know who actually has to operate servers) _always_ thought it was a terribly unfortunate term, that it was careless language, and that it was going to come back and hurt. But people were willing to live with it because they thought it was limited to the new TLDs; and, since those new TLDs couldn't be used in any other part of the Internet before delegation, it was not so risky. The very concern that many of us had is now being proposed to be activated now. This is the same kind of problem that the IAB was worried about earlier in the over-broad mission language. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Andrew, I don't think it's anything so cataclysmic. I'm not sure what the "very concern" was, of course. If it was any application beyond the new TLDs then maybe your concern is realized. But I think this is still a focused "commitment." Whatever ICANN has to do in this regard would still be bounded by its mission, even if it is not limited to new gTLDs. Greg On Wed, Jan 13, 2016 at 4:50 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Wed, Jan 13, 2016 at 04:40:01PM -0500, Greg Shatan wrote:
The "DNS marketplace" is the term that's used in the AoC, so I assume
there
is background and history to show how that is viewed in this context.
Several of us (including, I'm afraid, anybody I know who actually has to operate servers) _always_ thought it was a terribly unfortunate term, that it was careless language, and that it was going to come back and hurt. But people were willing to live with it because they thought it was limited to the new TLDs; and, since those new TLDs couldn't be used in any other part of the Internet before delegation, it was not so risky.
The very concern that many of us had is now being proposed to be activated now. This is the same kind of problem that the IAB was worried about earlier in the over-broad mission language.
Best regards,
A
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Greg, I'm not sure what the "very concern" was, of course. MM: The concern that “DNS marketplace” would be stretched to include business activities that are not directly tied to ICANN’s mission of registering names in the root zone. If it was any application beyond the new TLDs then maybe your concern is realized. But I think this is still a focused "commitment." MM: Really? What focuses it? Where are the limitations on its applicability documented? You are rejecting outright the one meaningful limitation on its context and scope, namely the gTLD expansion. There is no other limitation. There is no accepted definition of the ‘DNS marketplace’ with which to limit our understanding of its applicability. What we have from you now is nothing but a subjective assurance that you think it is focused. Whatever ICANN has to do in this regard would still be bounded by its mission, even if it is not limited to new gTLDs. MM: (facepalm) You are trying to insert a generalized ‘consumer trust’ obligation into the bylaws in a position that would alter the mission.
On Wed, Jan 13, 2016 at 05:01:23PM -0500, Greg Shatan wrote:
If it was any application beyond the new TLDs then maybe your concern is realized.
Yes, that's exactly what the concern is, as several of us have tried to say in different ways. ICANN is supposed to manage certain parts of the DNS, not "the DNS". The DNS is designed _precisely_ to foil this kind of centralised responsibility. It's the only thing that has kept it around so long, given all its faults. Attempting to make ICANN responsible for consumer trust in the DNS in general[1] is just another way of trying to make ICANN into Lords of the Internet instead of insisting that they be responsible, competent administrators of their narrow technical function. If what you're arguing is that ICANN's previous AoC included as a matter of words but not intent resposibility for stuff outside ICANN's remit, I'm prepared to admit that. But as a practical matter, in that case, I think we still need to kick sorting that out to WS 2 and put in this WS only the bit we all definitely agree was in scope: the new TLD program. Otherwise, we'll never ship the minimal stuff necessary for the transition. With the new community powers, the community will be able to take the time to get any further analysis right and craft text that is actually appropriate to ICANN's job. A [1] whatever that means, anyway. It's to me like saying "consumer trust in fuel ignition systems". Do drivers even know whether their cars have a fuel ignition system? If your car breaks down, do you get angry at Bosch or NGK or Denso, or do get angry at whoever made your car? I actually know who made my "ignition system" (and the cheating, lying software inside it -- mine isn't a separate part of the engine), but I'm still mad at VW. -- Andrew Sullivan ajs@anvilwalrusden.com
Are incumbent gTLDs included within the "certain parts of the DNS" that ICANN should manage? avri On 13-Jan-16 17:19, Andrew Sullivan wrote:
On Wed, Jan 13, 2016 at 05:01:23PM -0500, Greg Shatan wrote:
If it was any application beyond the new TLDs then maybe your concern is realized. Yes, that's exactly what the concern is, as several of us have tried to say in different ways.
ICANN is supposed to manage certain parts of the DNS, not "the DNS". The DNS is designed _precisely_ to foil this kind of centralised responsibility. It's the only thing that has kept it around so long, given all its faults. Attempting to make ICANN responsible for consumer trust in the DNS in general[1] is just another way of trying to make ICANN into Lords of the Internet instead of insisting that they be responsible, competent administrators of their narrow technical function.
If what you're arguing is that ICANN's previous AoC included as a matter of words but not intent resposibility for stuff outside ICANN's remit, I'm prepared to admit that. But as a practical matter, in that case, I think we still need to kick sorting that out to WS 2 and put in this WS only the bit we all definitely agree was in scope: the new TLD program. Otherwise, we'll never ship the minimal stuff necessary for the transition. With the new community powers, the community will be able to take the time to get any further analysis right and craft text that is actually appropriate to ICANN's job.
A
[1] whatever that means, anyway. It's to me like saying "consumer trust in fuel ignition systems". Do drivers even know whether their cars have a fuel ignition system? If your car breaks down, do you get angry at Bosch or NGK or Denso, or do get angry at whoever made your car? I actually know who made my "ignition system" (and the cheating, lying software inside it -- mine isn't a separate part of the engine), but I'm still mad at VW.
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On Wed, Jan 13, 2016 at 05:50:00PM -0500, Avri Doria wrote:
Are incumbent gTLDs included within the "certain parts of the DNS" that ICANN should manage?
Actually, my view is that ICANN shouldn't manage TLDs at all. It should manage delegations from the root zone. Some of those delegations came with (more or less elaborate) rules around what made the delegation acceptable, and I can see my way to agreeing that ICANN should also be in a position to enforce such rules on the grounds that they were the basis for the original delegation (setting aside whether they should have been). Some continations of an agreement around delegation have also come with rules about what ICANN wanted as a basis for not finding a new operator of the enclosed name space; again, on the basis of existing commercial agreements I think ICANN should be in a position to enforce such rules. I note that this enforcement includes a duty to escrow the TLD's registration data (for some value thereof) in such a way that, if the operator of the TLD in question were to misbehave, ICANN would be in a position to undertake a forced redelegation. But note that merely moves the actual management of the TLD itself to some other operator, and does not actually make ICANN the manager of that subordinate namespace. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
ICANN does not manage the root zone, the IANA and soon the PTI does. el -- Sent from Dr Lisse's iPad mini
On 14 Jan 2016, at 01:00, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Wed, Jan 13, 2016 at 05:50:00PM -0500, Avri Doria wrote:
Are incumbent gTLDs included within the "certain parts of the DNS" that ICANN should manage?
Actually, my view is that ICANN shouldn't manage TLDs at all. It should manage delegations from the root zone. Some of those delegations came with (more or less elaborate) rules around what made the delegation acceptable, and I can see my way to agreeing that ICANN should also be in a position to enforce such rules on the grounds that they were the basis for the original delegation (setting aside whether they should have been). Some continations of an agreement around delegation have also come with rules about what ICANN wanted as a basis for not finding a new operator of the enclosed name space; again, on the basis of existing commercial agreements I think ICANN should be in a position to enforce such rules.
I note that this enforcement includes a duty to escrow the TLD's registration data (for some value thereof) in such a way that, if the operator of the TLD in question were to misbehave, ICANN would be in a position to undertake a forced redelegation. But note that merely moves the actual management of the TLD itself to some other operator, and does not actually make ICANN the manager of that subordinate namespace.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Perhaps what "management of TLD" mean for ICANN needs to be clarified and I like to get it clear through example. Is ICANN said to be "managing TLD" in the 2 broad scenarios below: 1. That ICANN by its policy/procedure approves specific TLD to certain applicant 2. That ICANN require an already assigned TLD be used/operated in a specific way. It seem 1 is within scope and 2 is where the question mark is, but how does ICANN fulfill item1 without implementing/enforcing some form of item 2. Regards On 14 Jan 2016 12:00 a.m., "Andrew Sullivan" <ajs@anvilwalrusden.com> wrote:
On Wed, Jan 13, 2016 at 05:50:00PM -0500, Avri Doria wrote:
Are incumbent gTLDs included within the "certain parts of the DNS" that ICANN should manage?
Actually, my view is that ICANN shouldn't manage TLDs at all. It should manage delegations from the root zone. Some of those delegations came with (more or less elaborate) rules around what made the delegation acceptable, and I can see my way to agreeing that ICANN should also be in a position to enforce such rules on the grounds that they were the basis for the original delegation (setting aside whether they should have been). Some continations of an agreement around delegation have also come with rules about what ICANN wanted as a basis for not finding a new operator of the enclosed name space; again, on the basis of existing commercial agreements I think ICANN should be in a position to enforce such rules.
I note that this enforcement includes a duty to escrow the TLD's registration data (for some value thereof) in such a way that, if the operator of the TLD in question were to misbehave, ICANN would be in a position to undertake a forced redelegation. But note that merely moves the actual management of the TLD itself to some other operator, and does not actually make ICANN the manager of that subordinate namespace.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Thu, Jan 14, 2016 at 07:31:50PM +0100, Seun Ojedeji wrote:
Perhaps what "management of TLD" mean for ICANN needs to be clarified and I like to get it clear through example. Is ICANN said to be "managing TLD" in the 2 broad scenarios below:
I don't think they're managing the TLD at all. They're managing the terms of the delegation of that TLD. We're sliding over a technical difference that, in this case, makes the difference.
1. That ICANN by its policy/procedure approves specific TLD to certain applicant
I'd state this instead as "ICANN by its policies and procedures allocates specific names in the root zone for a given operator of that name, subject additionally to the ordinary IANA rules (which are, themselves, generated by ICANN policies and procedures) in order to permit delegation." ICANN's rules here might well involve checks on the action of the operator of that name, but that is not "management" of them except in the sense of any other management of a commercial contract. The operator receives the allocation under certain terms and conditions, and because of that ICANN is in a position to determine whether the terms and conditions are met, in order to fulfill ICANN's job as the manager of the allocation and delegation policies within ICANN's area of responsibilty (the root zone).
2. That ICANN require an already assigned TLD be used/operated in a specific way.
This is just a special case of the same "terms and conditions are met" question above. ICANN's power comes from its ability to remove the delegation from the root zone due to of non-performance on the part of the operator of the name. Because that would be disruptive to the global DNS, ICANN seeks to use other mechanisms (like contracts) to enforce the performance. But the ultimate management power ICANN has is in fact only that of removing the delegation -- in effect, terminating the contract. Like any other normal actor that has operational responsibilities, ICANN seeks to blunt the side effects of such contract termination by requiring escrow and so on, precisely so that one bad actor's non-performance doesn't have nasty side effects. To the extent that ICANN uses this power to expand its ability to force terms on operators of TLDs, I think it is acting outside its remit. I think that worry is one source of opposition here. But I also think that the new accountability measures that are supposed to take effect if ever we finish this work mean that ICANN's incentives to try to expand its control in this way will be tempered by the ability of the community to prevent it doing so. This is why I think the approach Becky has been taking is correct. We need to line up the incentives for the right behaviour, rather than trying to create rules that will make bad behaviour impossible. Rules can always be gamed, whereas correctly-aligned incentives discourage gaming. But none of this will be made easier if we permit over-broad language about consumer protection in the DNS market, since that isn't actually what ICANN does. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
+1 David At 05:19 PM 1/13/2016, Andrew Sullivan wrote:
On Wed, Jan 13, 2016 at 05:01:23PM -0500, Greg Shatan wrote:
If it was any application beyond the new TLDs then maybe your concern is realized.
Yes, that's exactly what the concern is, as several of us have tried to say in different ways.
ICANN is supposed to manage certain parts of the DNS, not "the DNS". The DNS is designed _precisely_ to foil this kind of centralised responsibility. It's the only thing that has kept it around so long, given all its faults. Attempting to make ICANN responsible for consumer trust in the DNS in general[1] is just another way of trying to make ICANN into Lords of the Internet instead of insisting that they be responsible, competent administrators of their narrow technical function.
If what you're arguing is that ICANN's previous AoC included as a matter of words but not intent resposibility for stuff outside ICANN's remit, I'm prepared to admit that. But as a practical matter, in that case, I think we still need to kick sorting that out to WS 2 and put in this WS only the bit we all definitely agree was in scope: the new TLD program. Otherwise, we'll never ship the minimal stuff necessary for the transition. With the new community powers, the community will be able to take the time to get any further analysis right and craft text that is actually appropriate to ICANN's job.
A
[1] whatever that means, anyway. It's to me like saying "consumer trust in fuel ignition systems". Do drivers even know whether their cars have a fuel ignition system? If your car breaks down, do you get angry at Bosch or NGK or Denso, or do get angry at whoever made your car? I actually know who made my "ignition system" (and the cheating, lying software inside it -- mine isn't a separate part of the engine), but I'm still mad at VW.
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
Agree strongly with Andrew here. It is another example of how advocates of including the Consumer Trust stuff seem to be deaf to the concern that is being expressed. You can't just leave that language in there without a very specific context. If the consumer trust advocates can't accept such a basic and simple limitation on the applicability of thee AoC language, I would say that the whole AoC incorporation into the bylaws needs to be kicked to WS2.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Wednesday, January 13, 2016 4:50 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws
On Wed, Jan 13, 2016 at 04:40:01PM -0500, Greg Shatan wrote:
The "DNS marketplace" is the term that's used in the AoC, so I assume there is background and history to show how that is viewed in this context.
Several of us (including, I'm afraid, anybody I know who actually has to operate servers) _always_ thought it was a terribly unfortunate term, that it was careless language, and that it was going to come back and hurt. But people were willing to live with it because they thought it was limited to the new TLDs; and, since those new TLDs couldn't be used in any other part of the Internet before delegation, it was not so risky.
The very concern that many of us had is now being proposed to be activated now. This is the same kind of problem that the IAB was worried about earlier in the over-broad mission language.
Best regards,
A
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On 13-Jan-16 17:02, Mueller, Milton L wrote:
If the consumer trust advocates can't accept such a basic and simple limitation on the applicability of thee AoC language, I would say that the whole AoC incorporation into the bylaws needs to be kicked to WS2.
Perhaps better to do that than to say we have included the AOC when we haven't. Though we have had rather strong support for including the AOC in the transition accountability changes. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Some of us think we have included AoC in the Bylaws and some of us don¹t. We have included what we actually agree is in the AoC 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 1/13/16, 6:40 PM, "Avri Doria" <avri@acm.org> wrote:
On 13-Jan-16 17:02, Mueller, Milton L wrote:
If the consumer trust advocates can't accept such a basic and simple limitation on the applicability of thee AoC language, I would say that the whole AoC incorporation into the bylaws needs to be kicked to WS2.
Perhaps better to do that than to say we have included the AOC when we haven't. Though we have had rather strong support for including the AOC in the transition accountability changes.
avri
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Exactly. Keith
On Jan 13, 2016, at 7:41 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Some of us think we have included AoC in the Bylaws and some of us don¹t. We have included what we actually agree is in the AoC
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 1/13/16, 6:40 PM, "Avri Doria" <avri@acm.org> wrote:
On 13-Jan-16 17:02, Mueller, Milton L wrote: If the consumer trust advocates can't accept such a basic and simple limitation on the applicability of thee AoC language, I would say that the whole AoC incorporation into the bylaws needs to be kicked to WS2.
Perhaps better to do that than to say we have included the AOC when we haven't. Though we have had rather strong support for including the AOC in the transition accountability changes.
avri
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Hi, It does seem like an impasse. I am sure there is a way out of it other than having one group surrender to the other (my interpretation of the earlier "Come on Avri" message.) I wonder do we still have anyone around who was part of negotiating the text for ICANN? We could also consult with NTIA to see which interpretation of the AOC most closely reflects their understanding. I believe that the NTIA folks who negotiated are still at NTIA. We can ask them whether their idea was 3 was just a reference to what is in 9 or was an affirmation that had its own content indicating that consumer trust went beyond new gTLDs, e.g. to all gTLDs or perhaps referred to the activities of ICANN itslef. avri On 13-Jan-16 19:39, Burr, Becky wrote:
Some of us think we have included AoC in the Bylaws and some of us don¹t. We have included what we actually agree is in the AoC
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 1/13/16, 6:40 PM, "Avri Doria" <avri@acm.org> wrote:
On 13-Jan-16 17:02, Mueller, Milton L wrote:
If the consumer trust advocates can't accept such a basic and simple limitation on the applicability of thee AoC language, I would say that the whole AoC incorporation into the bylaws needs to be kicked to WS2. Perhaps better to do that than to say we have included the AOC when we haven't. Though we have had rather strong support for including the AOC in the transition accountability changes.
avri
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I think Section 3 of the AoC is in the AoC. On Wednesday, January 13, 2016, Burr, Becky <Becky.Burr@neustar.biz <javascript:_e(%7B%7D,'cvml','Becky.Burr@neustar.biz');>> wrote:
Some of us think we have included AoC in the Bylaws and some of us don¹t. We have included what we actually agree is in the AoC
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 1/13/16, 6:40 PM, "Avri Doria" <avri@acm.org> wrote:
On 13-Jan-16 17:02, Mueller, Milton L wrote:
If the consumer trust advocates can't accept such a basic and simple limitation on the applicability of thee AoC language, I would say that the whole AoC incorporation into the bylaws needs to be kicked to WS2.
Perhaps better to do that than to say we have included the AOC when we haven't. Though we have had rather strong support for including the AOC in the transition accountability changes.
avri
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Are ccTLDs part of the DNS marketplace?? Why not? 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: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday, January 13, 2016 at 4:40 PM To: Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Becky, I agree that we have a disagreement. If we kick this to WS2, I think we need to keep Section 3 of the AoC alive until the issue is resolved. We can't just sunset Section 3 on the premise that some of us think it didn't really do anything anyway. Andrew, I don't think we have a disagreement on the point you raise. The "DNS marketplace" is the term that's used in the AoC, so I assume there is background and history to show how that is viewed in this context. So, it's not a plain-language meaning we are looking for, it is a fit-for-purpose definition. As such I don't think what you're describing is part of the "DNS marketplace" for purposes of the AoC. So I don't think we far apart, in this regard. Greg On Wed, Jan 13, 2016 at 4:25 PM, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> wrote: On Wed, Jan 13, 2016 at 03:47:06PM -0500, Greg Shatan wrote:
Section 3 is not unbounded. It is limited to the "DNS marketplace."
Ok. Please tell me, what is that marketplace? My employer (Dyn), for instance, sells DNS services to companies. We have many competitors. Dyn has been at this for about 15 years. For a significant chunk of that time, Dyn wasn't even a registrar (which Dyn only does for convenience, really -- it's not our main market). In any case, many of our customers use someone else for domain name registration and just use us for DNS. Indeed, for part of Dyn's history you couldn't do any domain name registration in any TLD with Dyn; instead, you registered a hostname under (say) dyndns.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__dyndns.org&d=CwMFaQ&c=MO...> and Dyn hooked up your dynamically-assigned IP to the DNS with a 5 minute TTL so that you could access your machine at home or wherever. Other companies are in this business too, through today. Under any plain-language meaning of the terms, those behaviours seem to be part of the DNS marketplace. But I claim ICANN has absolutely no business, of any kind, in that marketplace, and if you're going to argue that it does then I think we have a very deep disagreement about where ICANN's responsibilities begin and end. If we're this far apart on that fundamental question, then I think we have a practical problem of hammering out the answer. For practical reasons, I think, we therefore need to kick the question to WS 2 and use the minimal interpretation that is compatible with everyone's interpretation. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=U8JV-pppuzL5by4GRAsK2KjEfJrLbZS2ptPd2Qo1-4k&s=oAyCDwSLge0wlubgemF80EhkvEy_XoUZjgzkL94GwfM&e=>
ICANN's role is restricted to the ccNSO and therein to keeping the root database and the whois database up to date. el -- Sent from Dr Lisse's iPad mini
On 14 Jan 2016, at 00:16, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Are ccTLDs part of the DNS marketplace?? Why not?
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
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday, January 13, 2016 at 4:40 PM To: Andrew Sullivan <ajs@anvilwalrusden.com> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws
Becky, I agree that we have a disagreement.
If we kick this to WS2, I think we need to keep Section 3 of the AoC alive until the issue is resolved. We can't just sunset Section 3 on the premise that some of us think it didn't really do anything anyway.
Andrew, I don't think we have a disagreement on the point you raise.
The "DNS marketplace" is the term that's used in the AoC, so I assume there is background and history to show how that is viewed in this context. So, it's not a plain-language meaning we are looking for, it is a fit-for-purpose definition. As such I don't think what you're describing is part of the "DNS marketplace" for purposes of the AoC. So I don't think we far apart, in this regard.
Greg
On Wed, Jan 13, 2016 at 4:25 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote: On Wed, Jan 13, 2016 at 03:47:06PM -0500, Greg Shatan wrote:
Section 3 is not unbounded. It is limited to the "DNS marketplace."
Ok. Please tell me, what is that marketplace?
My employer (Dyn), for instance, sells DNS services to companies. We have many competitors. Dyn has been at this for about 15 years. For a significant chunk of that time, Dyn wasn't even a registrar (which Dyn only does for convenience, really -- it's not our main market). In any case, many of our customers use someone else for domain name registration and just use us for DNS. Indeed, for part of Dyn's history you couldn't do any domain name registration in any TLD with Dyn; instead, you registered a hostname under (say) dyndns.org and Dyn hooked up your dynamically-assigned IP to the DNS with a 5 minute TTL so that you could access your machine at home or wherever. Other companies are in this business too, through today.
Under any plain-language meaning of the terms, those behaviours seem to be part of the DNS marketplace. But I claim ICANN has absolutely no business, of any kind, in that marketplace, and if you're going to argue that it does then I think we have a very deep disagreement about where ICANN's responsibilities begin and end. If we're this far apart on that fundamental question, then I think we have a practical problem of hammering out the answer. For practical reasons, I think, we therefore need to kick the question to WS 2 and use the minimal interpretation that is compatible with everyone's interpretation.
Best regards,
A
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+1. I would note that nature of ccTLDs and the concept of ICANN deciding what the (for example) .uk DNS market place is and how it should be managed is not acceptable. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Dr Eberhard W Lisse Sent: 14 January 2016 13:50 To: CCWG Accountability <accountability-cross-community@icann.org> Cc: Lisse Eberhard <directors@omadhina.NET> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws ICANN's role is restricted to the ccNSO and therein to keeping the root database and the whois database up to date. el -- Sent from Dr Lisse's iPad mini On 14 Jan 2016, at 00:16, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Are ccTLDs part of the DNS marketplace?? Why not? 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: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday, January 13, 2016 at 4:40 PM To: Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Becky, I agree that we have a disagreement. If we kick this to WS2, I think we need to keep Section 3 of the AoC alive until the issue is resolved. We can't just sunset Section 3 on the premise that some of us think it didn't really do anything anyway. Andrew, I don't think we have a disagreement on the point you raise. The "DNS marketplace" is the term that's used in the AoC, so I assume there is background and history to show how that is viewed in this context. So, it's not a plain-language meaning we are looking for, it is a fit-for-purpose definition. As such I don't think what you're describing is part of the "DNS marketplace" for purposes of the AoC. So I don't think we far apart, in this regard. Greg On Wed, Jan 13, 2016 at 4:25 PM, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>> wrote: On Wed, Jan 13, 2016 at 03:47:06PM -0500, Greg Shatan wrote:
Section 3 is not unbounded. It is limited to the "DNS marketplace."
Ok. Please tell me, what is that marketplace? My employer (Dyn), for instance, sells DNS services to companies. We have many competitors. Dyn has been at this for about 15 years. For a significant chunk of that time, Dyn wasn't even a registrar (which Dyn only does for convenience, really -- it's not our main market). In any case, many of our customers use someone else for domain name registration and just use us for DNS. Indeed, for part of Dyn's history you couldn't do any domain name registration in any TLD with Dyn; instead, you registered a hostname under (say) dyndns.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__dyndns.org&d=CwMFaQ&c=MO...> and Dyn hooked up your dynamically-assigned IP to the DNS with a 5 minute TTL so that you could access your machine at home or wherever. Other companies are in this business too, through today. Under any plain-language meaning of the terms, those behaviours seem to be part of the DNS marketplace. But I claim ICANN has absolutely no business, of any kind, in that marketplace, and if you're going to argue that it does then I think we have a very deep disagreement about where ICANN's responsibilities begin and end. If we're this far apart on that fundamental question, then I think we have a practical problem of hammering out the answer. For practical reasons, I think, we therefore need to kick the question to WS 2 and use the minimal interpretation that is compatible with everyone's interpretation. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=U8JV-pppuzL5by4GRAsK2KjEfJrLbZS2ptPd2Qo1-4k&s=oAyCDwSLge0wlubgemF80EhkvEy_XoUZjgzkL94GwfM&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Becky, can you please explain why you think that 3.c is there solely as an introduction to 9.3, whereas 3.a, 3.b and 3.d clearly have a wider scope? For those who do not have an AoC handy, I reproduce the section in question here. 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. Alan At 13/01/2016 02:01 PM, Burr, Becky wrote:
Come on Avri - I could say that we don¡¯t have sufficient cause - let alone authority - to amend the AoC, but I don¡¯t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue.
One group reads Paragraph 3 as a ¡°chapeau¡± text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC.
I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws.
I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN¡¯s remit. I know what protecting and promoting ¡°consumer trust¡± means to a consumer protection regulator with sovereign authority. I don¡¯t think that¡¯s ICANN¡¯s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws.
But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2.
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 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ©øconsumer trust©÷ encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ©øconsumer trust©÷ role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN©ös existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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Good question. A comparison table (text of AoC and way it is being introduced into the Bylaws) would be helpful for those (like me) who do not know by heart the AoC... Regards Jorge Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Alan Greenberg Gesendet: Donnerstag, 14. Januar 2016 06:50 An: Burr, Becky <Becky.Burr@neustar.biz>; avri@acm.org; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Becky, can you please explain why you think that 3.c is there solely as an introduction to 9.3, whereas 3.a, 3.b and 3.d clearly have a wider scope? For those who do not have an AoC handy, I reproduce the section in question here. 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. Alan At 13/01/2016 02:01 PM, Burr, Becky wrote: Come on Avri - I could say that we don¡¯t have sufficient cause - let alone authority - to amend the AoC, but I don¡¯t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue. One group reads Paragraph 3 as a ¡°chapeau¡± text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC. I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws. I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN¡¯s remit. I know what protecting and promoting ¡°consumer trust¡± means to a consumer protection regulator with sovereign authority. I don¡¯t think that¡¯s ICANN¡¯s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws. But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2. 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<http://www.neustar.biz/>> On 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ©øconsumer trust©÷ encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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<http://www.neustar.biz/>>
On 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ©øconsumer trust©÷ role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN©ös existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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I don’t agree that 3a, 3b, or 3d have a wider scope. All of 3 serves as a chapeau to the specific commitments of DOC and ICANN that appear below. They are specifically addressed in 7,8, and 9. Some of the specific language in 3 was already in ICANN Mission and Core Values, and unlike consumer trust, some of the stuff in 9 is global 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: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Thursday, January 14, 2016 at 12:49 AM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Becky, can you please explain why you think that 3.c is there solely as an introduction to 9.3, whereas 3.a, 3.b and 3.d clearly have a wider scope? For those who do not have an AoC handy, I reproduce the section in question here. 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. Alan At 13/01/2016 02:01 PM, Burr, Becky wrote: Come on Avri - I could say that we don¡¯t have sufficient cause - let alone authority - to amend the AoC, but I don¡¯t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue. One group reads Paragraph 3 as a ¡°chapeau¡± text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC. I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws. I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN¡¯s remit. I know what protecting and promoting ¡°consumer trust¡± means to a consumer protection regulator with sovereign authority. I don¡¯t think that¡¯s ICANN¡¯s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws. But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2. 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<http://www.neustar.biz/>> On 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ©øconsumer trust©÷ encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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<http://www.neustar.biz/>>
On 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ©øconsumer trust©÷ role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN©ös existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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isn't it true that AoC items 3a, 3b, and 3c map directly to AoC reviews 9.1, 9.2, and 9.3 ? From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Thursday, January 14, 2016 at 1:11 AM To: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Avri Doria <avri@acm.org<mailto:avri@acm.org>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws I don’t agree that 3a, 3b, or 3d have a wider scope. All of 3 serves as a chapeau to the specific commitments of DOC and ICANN that appear below. They are specifically addressed in 7,8, and 9. Some of the specific language in 3 was already in ICANN Mission and Core Values, and unlike consumer trust, some of the stuff in 9 is global From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Thursday, January 14, 2016 at 12:49 AM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws Becky, can you please explain why you think that 3.c is there solely as an introduction to 9.3, whereas 3.a, 3.b and 3.d clearly have a wider scope? For those who do not have an AoC handy, I reproduce the section in question here. 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. Alan At 13/01/2016 02:01 PM, Burr, Becky wrote: Come on Avri - I could say that we don¡¯t have sufficient cause - let alone authority - to amend the AoC, but I don¡¯t think that moves the ball forward. Rather, and respecting the integrity and good intentions of people on various sides of this argument, we have a strong disagreement about the meaning of the AoC on the consumer trust issue. One group reads Paragraph 3 as a ¡°chapeau¡± text introducing Paragraph 9.3, in which the consumer trust issue is exclusively limited to TLD expansion and calls for a review on the subject. I, along with many others, acting in good faith believe that this is unquestionably the proper reading of the AoC. I understand that another group reads Paragraph 3 as creating a separate, stand-alone and generalized obligation to promote consumer trust in the DNS marketplace that should be reflected in Article 1 of the Bylaws. I accept that this reading is taken in good faith, but I believe it is inconsistent with standard principles applicable to textual interpretation, let alone statutory construction, and an extraordinary expansion of ICANN¡¯s remit. I know what protecting and promoting ¡°consumer trust¡± means to a consumer protection regulator with sovereign authority. I don¡¯t think that¡¯s ICANN¡¯s job - although I do agree that the AoC gives ICANN specific obligations in this regard in connection with TLD expansion. That is being transposed into the Bylaws. But if we cannot reach consensus about charging ICANN with a general obligation with to promote consumer trust in the DNS marketplace - which apparently we cannot - then we need to find a way to proceed, unless everyone just wants to keep repeating their views and casting aspersions about the good faith of people with different views. So, my suggestion is WS2. 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<http://www.neustar.biz/>> On 1/13/16, 12:12 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ©øconsumer trust©÷ encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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<http://www.neustar.biz/>>
On 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ©øconsumer trust©÷ role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN©ös existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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On 14/01/2016 06:15, Steve DelBianco wrote:
isn't it true that AoC items 3a, 3b, and 3c map directly to AoC reviews 9.1, 9.2, and 9.3 ?
AoC item 3 begins "3. This document affirms key commitments by DOC and ICANN, including commitments to ..." By contrast, successive clauses begin: "4. DOC affirms... 5. DOC recognises... 6. DOC also affirms... 7. ICANN commits... 8. ICANN affirms... 9. Recognising that [some stuff], ICANN affirms..." So we have six clauses where the active verb explicitly has either ICANN or the DOC as the actor (the subject, in grammatical terms), and one clause where "this document" is the subject. That looks to me very much like item 3 is a chapeau, merely introducing, describing and explaining the clauses that follow in "this document". As a textual matter, I find it very hard to read it as introducing wholly additional commitments, that are not elaborated in one of the following clauses. I'm not all that keen on inviting parties to a document such as this to interpret it after the event: the document should be interpreted objectively, as saying what it says on its face. But since we have decided to invite the NTIA to give their view, we need to be very precise in the question we ask them. Here is my initial suggestion, for the group's review: "In the opinion of the NTIA, does clause 3 of the AoC serve only to introduce, explain and interpret the commitments affirmed in clauses 4-11, or does it also create a separate affirmation of additional commitments beyond those elaborated elsewhere in the document?". Kind Regards, 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
The reference to Consumer Trust is in the AoC and despite Becky's reading of section 3 as referring only to the new gTLD expansion, parts a, b and c of section 3 have no relation to the expansion. They are a general summary of commitments. The mission of Contractual Compliance is "To preserve the security, stability and resiliency of the Domain Name System and to promote consumer trust." The first clause refers to the AoC 3.b and the second to 3.c - the latter being the section in question. If everyone feels that consumer trust has no place here, then it would seem that someone would be able to initiate an IRP saying that the CC Mission is in violation of the ICANN Bylaws. Alan At 13/01/2016 12:12 PM, Avri Doria wrote:
Hi,
In this case, I do not believe we will have sufficient cause to request that the AOC be cancelled by mutual agreement. If all of the AOC concerns can't be brought into the bylaws, then they can't be said to be covered by the the By Laws.
Of course ICANN can still unilaterally abandon the AOC.
I also think we may need to be much more careful to make sure we have agreed upon definitions for all terms in the By Laws and not just those that belong to concepts some people are not comfortable with. I know there are some terms for which I have not been absolutely sure of the meaning and on which we have never had real dialogue. For example in an international context what do we really mean by 'promote', 'competition', and 'consumer choice'. I know I am not comfortable with the way some people define these terms. What are our criteria for these terms and for knowing when we have achieved them? How can a review decide that we have adequate global competition? How active do we need to be about promoting competition, especially in a global context with economies that have different capabilities. How much choice is sufficient consumer choice? I do not believe we have any better idea, or have had adequate dialogue and consensus on the meaning of these terms and concepts. I do believe we generally understand them as well as we understand consumer trust, but not better.
I am also sure I can find lack of dialogue and ambiguity on many other terms used in the By Laws. Is that the process we must now open up?
Lastly I think it is in the process of the multistakeholder AOC type reviews that we work on our evolving consensus definitions. I am certain that we now have a much deeper understanding of Accountability and Transparency after the two ATRT reviews than we did before those reviews.
avri
On 13-Jan-16 10:59, Burr, Becky wrote:
I understand your point Avri, but (as I said, unlike the HR issue) we have had no real dialogue on what ³consumer trust² encompasses (outside of the new gTLD review context), so it seems to me that moving the issue to WS2 is the only possible approach.
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 1/12/16, 5:42 PM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Not sure I buy into the Xmas tree analogy, especially when trying to delineate values.
And while I have not had to make this argument in a while, I still maintain that as a vassal of the NTIA, ICANN would have been constrained to respect human rights and that the loss of NTIA forces us to take some responsibility for that as a corporation, especially in regard to an open Internet.
I still find it rather shocking and depressing that many, including our Board are fighting against human rights so hard at iCANN. Option 2b would be a travesty and 2c is just a fig leaf, better than nothing, but barely.
As for consumer trust, that may be a similar situation. NTIA has shown by its participation in the AOC how much it cares about consumer trust, and I think that if the complaints against ICANN for consumer issues got any worse than they are, we would hear about from the NTIA and it would be a consideration for any IANA renewal. I would hope that they would reject any plan that did not promise an effort to maintain and improve ours.
avri
On 12-Jan-16 16:30, Andrew Sullivan wrote:
On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
The language on human rights would be a departure from that standard, and the introduction of a generalized ³consumer trust² role would be yet another. Apart from these two concepts, all of the assigned roles and responsibilities appear in ICANN¹s existing Bylaws, Articles of Incorporation, and the White Paper itself. I think the above is an important argument, and it takes on more importance when we reflect on previous observations from the NTIA that this accountability work ought not to be an opportunity to remake ICANN.
Best regards,
A
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participants (18)
-
Alan Greenberg -
Andrew Sullivan -
Avri Doria -
Burr, Becky -
Carlos Raúl Gutiérrez -
David Post -
Dr Eberhard W Lisse -
Drazek, Keith -
Eric (Maule) Brunner-Williams -
Greg Shatan -
Jordan Carter -
Jorge.Cancio＠bakom.admin.ch -
Malcolm Hutty -
Martin Boyle -
Mueller, Milton L -
Nigel Roberts -
Seun Ojedeji -
Steve DelBianco