Moving this thread over to the Stress Test work party, at Malcolm’s request. 

Greg offered his edits (1st attachment) based on the 2nd draft CCWG report.   

Greg had not seen that the ST work party published its recommendation last week for how to respond to public comments on ST 29 and ST 30 (attached and below).    I’m not suggesting the recommendations below would solve Greg’s concerns and Malcolm’s response, but let’s please consider this text as well.

—Steve

 

Areas of Concern/Divergence

1. Stress Tests 29 and 30:  (pp 112-13)     These STs were added in response to public comment from New America Foundation.  7 commenters object to ST 29 and 30 (CoA, RIAA, IPC, ITI, US Chamber, USCIB, BC). Staff summarized objections as:

submissions were concerned about conflation with content regulation. To quote the US Chamber of Commerce on the topic: “We are concerned with the framing of Stress Tests # 29 and 30, which seems to conflate the enforcement of certain mutually-agreed to contractual obligations with that of “content regulation.” ICANN has a duty to enforce and enter into mutually agreeable contractual provisions, that are aimed at preventing malicious, abusive, or illegal conduct and the CCWG should add language clarifying this this obligation is not altered by ICANN’s revised Mission statement. We have a concern that the by-laws can be interpreted to limit ICANN’s ability (or willingness) to enforce existing contract terms and Public Interest Commitments with Registrars, agree to new contracts with strong protection provisions or otherwise participate in other programs designed to promote public interest goals.”

As to whether the ST team properly analyzed the Stress Tests, we said the IRP could potentially find that contract enforcement could be tested against bylaws requirement for bottom-up policy and ICANN’s mission statement.   (We have no idea what an IRP would say).  Commenters in Los Angeles said that we should not have accepted the Consequence text from New America: “ICANN effectively becomes a regulator of conduct and content on registrant websites”

The ST analysis as succeeded in focusing attention on the need to clarify whether limited mission and B-Up process bylaws would interfere with contract enforcement.   We note that WP2 is considering new text for the mission statement draft.

ST team recommends that the “consequence” stated in ST 29 and ST 30 be replaced with ”ICANN’s enforcement of registry and registrar contract terms might be blocked by an IRP ruling citing amended Mission and Core Values. “

Also, the ST team recommends that the conclusion of ST 29 and 30 be replaced with “Proposed measures would be adequate to challenge ICANN enforcement actions, but it is unlikely that IRP panels would block enforcement of voluntary contract terms and consensus policies”