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Draft Compact Mission Docs for consultation
by Burr, Becky April 16, 2015

April 16, 2015

Dear all - Attached for your review is a draft of the consultation documentation for the Mission, Fundamental Commitments, and Core Values sections of the Bylaws. I have attempted – but no doubt failed – to incorporate everyone’s input into these docs. The new document (consultation text) follows the Co-Chairs’ format and attempts to simplify otherwise confusing documents. The proposed changes to existing Bylaws are provided in redline format, and the documents are annotated to show the sources. Please give these a careful review. Best, Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz

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Re: [Wp2-compactmission] Draft Compact Mission Docs for consultation
by Alice Jansen April 13, 2015

April 13, 2015

Dear all, Documents are available at https://community.icann.org/display/acctcrosscomm/Compact+Mission Best regards Alice From: <Burr>, Becky <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Monday, April 13, 2015 9:03 PM To: "wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" <wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Cc: Jordan Carter <jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Steve DelBianco <sdelbianco(a)netchoice.org<mailto:sdelbianco@netchoice.org>>, Thomas Rickert <thomas(a)rickert.net<mailto:thomas@rickert.net>>, Paul Twomey <Paul.Twomey(a)argopacific.com<mailto:Paul.Twomey@argopacific.com>> Subject: [Wp2-compactmission] Draft Compact Mission Docs for consultation Dear all - Attached for your review is a draft of the consultation documentation for the Mission, Fundamental Commitments, and Core Values sections of the Bylaws. I have attempted - but no doubt failed - to incorporate everyone's input into these docs. The new document (consultation text) follows the Co-Chairs' format and attempts to simplify otherwise confusing documents. The proposed changes to existing Bylaws are provided in redline format, and the documents are annotated to show the sources. Please give these a careful review. Best, Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz

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Mission Statement Revised and Formatted
by Burr, Becky March 30, 2015

March 30, 2015

Hello All - In advance of our discussion tomorrow I am working through the Mission and Core Values docs to reflect input (both substantive and presentation wise) from Istanbul. This document addresses the Mission statement only, remaining sections on (1) Reconciling competing Commitments and Core Values; (2) Fundamental Commitments; and (3) Core Values to follow. Please review. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: <Burr>, Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>> Date: Wednesday, March 18, 2015 at 2:48 PM To: Kavouss Arasteh <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: "wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" <wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Subject: Re: [Wp2-compactmission] Let's get cooking Kavouss, We’ve heard you loud and clear on the use of the term “compact” and we will replace it. A B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Kavouss Arasteh <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: Wednesday, March 18, 2015 at 2:11 PM To: Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, David Post <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com>>, "wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" <wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Subject: Re: [Wp2-compactmission] Let's get cooking Dear Becky One simple comment In my view Mission ( core Mission) is an integral part of Bylaws and not a separate document Due ti the fact that Bylaws is the basic instrument of ICANN and from a legal view point is at the top Of the hierarchy. In the document, reference is made that ICANN Should / shall CONSIDER ......this is a very soft language Since one considering something may or nay not implement that. From legal point of View it should be replaced by" takes into account" or " taking into account" Finally I gave serious difficulties with the term " COMPACT" . It is not a legal term as it is different conotstion Regards Kavouss Sent from my iPhone On 10 Mar 2015, at 21:42, Burr, Becky <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: This is, unfortunately, one of the hardest issues. The trademark/cybersquatting issue is something that has more or less fair game for ICANN from the beginning, but it’s hard to fit it in (except as a legacy) to ICANN’s mission/values. Specification 1, which is part of the Registry Agreement and the Registrar Accreditation Agreement go on to say: “Consensus Policies” are those policies established (1) pursuant to the procedure set forth in ICANN’s Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this Specification. The Consensus Policy development process and procedure set forth in ICANN’s Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including the operators of gTLDs. Consensus Policies shall relate to one or more of the following: 1.2.1 issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet or Domain Name System (“DNS”); 1.2.2 functional and performance specifications for the provision of Registry Services; 1.2.3 Security and Stability of the registry database for the TLD; 1.2.4 registry policies reasonably necessary to implement Consensus Policies relating to registry operations or registrars; 1.2.5 resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names); or 1.2.6 restrictions on cross-ownership of registry operators and registrars or registrar resellers and regulations and restrictions with respect to registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or registrar reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 of this Specification shall include, without limitation: 1.3.1 principles for allocation of registered names in the TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2 prohibitions on warehousing of or speculation in domain names by registries or registrars; 41 1.3.3 reservation of registered names in the TLD that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); and 1.3.4 maintenance of and access to accurate and up-to-date information concerning domain name registrations; and procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility for serving registered domain names in a TLD affected by such a suspension or termination. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Tuesday, March 10, 2015 at 3:16 PM To: 'David Post' <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com>>, "wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" <wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Subject: Re: [Wp2-compactmission] Let's get cooking I tend to agree on this point with David – the enforceability comes from the other mechanisms. The compact defines just the limitations A test question – David has written about the use of ICANN to enforce copyright and trademark law. On the merits I agree with his view that this should not be ICANN’s mission, but that is not my test question. My test question is the related one: ASSUMING that you agree that copyright enforcement is outside ICANN’s remit, does the language below make that clear in a way that has sufficiently well defined standards that an outside arbiter could adjudicate it? I tend to think not … P Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> [cid:image001.jpg@01D05B45.2A46D2E0]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> From: David Post [mailto:david.g.post@gmail.com] Sent: Tuesday, March 10, 2015 10:14 AM To: wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org> Subject: Re: [Wp2-compactmission] Let's get cooking At 08:59 AM 3/10/2015, David W. Maher wrote: Compact with Community Strawman: ICANN will limits its scope of activity to issues that are within its Mission, and in carrying out its Mission ICANN will conduct itself in accordance its Community Compact. The Compact will be a contract enforceable by courts having jurisdiction over ICANN. The other parties to the contract will be registries, registrars and ????? Does this statement re enforceability need to be in the compact statement itself? It might be read to imply that it is NOT enforceable, for example, by the IRP - which it should be, in my opinion. I think we might want to simply state the compact, and leave the enforceability question for elsewhere David Mission Statement: in accordance with Bylaws (and something else?), ICANN’s mission is to coordinate the global Internet’s systems of unique identifiers by: 1. Coordinating operation of the DNS root server system 2. [IP addresses and protocol port and parameter numbers] 3. Implementing Consensus Policies (as defined in Specification 1) that ensure the stable and secure operation of the Internet’s unique names systems and that involve issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, security and/or stability of the DNS. Commitments to the Community: In carrying out its mission, ICANN must: 1. Limit activities to matters that are (a) within ICANN’s mission and (b) require global coordination 2. Preserve operational stability, reliability, security, interoperability and openness of the Internet 3. Operate transparently, in the public interest, and in accordance with multi-stakeholder model 4. Not advance the interests of one or more interest groups at the expense of others (avoid regulatory capture) 5. Respect the roles of SOs, ACs, and external expert bodies 6. Support the bottom up, multistakeholder model of policy development consistent with this compact, reflecting the functional, geographic, and cultural diversity of the Internet 7. Rely on market mechanisms to promote and sustain a competitive environment 8. Apply documented policies consistently, objectively, neutrally and fairly 9. Remain accountable through mechanisms defined in Bylaws 10. Duly consider governmental public policy recommendations that are consistent with the Bylaws 11. Operate with excellence and in a fiscally responsible manner J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> _______________________________________________ Wp2-compactmission mailing list Wp2-compactmission(a)icann.org<mailto:Wp2-compactmission@icann.org> https://mm.icann.org/mailman/listinfo/wp2-compactmission<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> ******************************* 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_…>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A…> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmu…> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbs…> ******************************* <image001.jpg> _______________________________________________ Wp2-compactmission mailing list Wp2-compactmission(a)icann.org<mailto:Wp2-compactmission@icann.org> https://mm.icann.org/mailman/listinfo/wp2-compactmission<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…>

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Discussion on IRP and Mission/Core Values issues post Istanbul
by Burr, Becky March 27, 2015

March 27, 2015

When: Monday, March 30, 2015 12:00 PM-1:00 PM. (UTC-05:00) Eastern Time (US & Canada) Where: 1775 PA Ave 4th Floor and remote details to be provided *~*~*~*~*~*~*~*~*~* Confirming meeting/call for Independent Review discussion on Monday. DC area folks invited to participate in person over lunch.

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Missions vs Values
by Malcolm Hutty March 23, 2015

March 23, 2015

Reading again through the discussion draft "Statement of Mission and Values", it strikes me that while most of the values speak to "how" the mission should be carried out, there are two or three that speak to "what" is (or is not) within the Mission. So for example, values #3 ("operate democratically and transparently..."), #6 ("fully respect the roles of the SOs, ACs and external expert bodies"), #7 ("continue to support the bottom-up multistakeholder model...") all describe how ICANN should operate. By contrast it seems to me that values #1 ("Limit its activities matters that [...] (b) require global coordination") and #5 ("Avoid content regulation") seek to set additional bounds on the scope of the mission. #2 ("Preserve the operational stability, reliability... [etc]") also seems to reproduce a boundary that does appear in the current Mission, but applies it to the whole Mission rather than just part of it. As these '"what" values' seem to further refine the Mission definition, I propose that they should be moved into the Mission section. Thus, the revised Mission would say something like this "ICANN’s Mission is to coordinate the global Internet’s systems of unique identifiers by: 1. Coordinating operation of the DNS root server system 2. Coordinating at the overall level the allocation and assignment of Internet protocol (“IP”) addresses and autonomous system (“AS”) numbers. 3. Coordinating the allocation and assignment of protocol port and parameter numbers. 4. Implementing Consensus Policies (as defined in Specification 1) that ensure the stable and secure operation of the Internet’s unique names systems insofar as uniform global coordination is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the Internet. ICANN's Mission does not include the regulation of services that use the Internet's unique identifiers, or the content which they carry or provide." Values #1, #5, and possibly #2 could then be deleted. (I can see an argument for leaving #2 in place nonetheless, as it may perform multiple roles, so we should discuss that). 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 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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Ombudsman
by Chris LaHatte March 18, 2015

March 18, 2015

Welcome to this group. There are a number of issues which need to be discussed, and I suggest we start with the ATRT 2 recommendations and follow with any additional items. Please let me know what other issues we need to discuss Regards Chris LaHatte Ombudsman Blog <https://omblog.icann.org/> https://omblog.icann.org/ Webpage <http://www.icann.org/en/help/ombudsman> http://www.icann.org/en/help/ombudsman

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Re: [Wp2-compactmission] Let's get cooking
by David W. Maher March 18, 2015

March 18, 2015

Plz note edit below David W. Maher Senior Vice President – Law & Policy Public Interest Registry 312 375 4849 From: <Burr>, "J. BECKWITH BURR" <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Monday, March 9, 2015 5:34 PM To: "wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" <wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Subject: [Wp2-compactmission] Let's get cooking We need to have a draft of the Mission/Compact by March 20 in advance of the Istanbul F2F. Here is my straw man. Could you all take a look and provide comments? Compact with Community Strawman: ICANN will limits its scope of activity to issues that are within its Mission, and in carrying out its Mission ICANN will conduct itself in accordance its Community Compact. The Compact will be a contract enforceable by courts having jurisdiction over ICANN. The other parties to the contract will be registries, registrars and ????? Mission Statement: in accordance with Bylaws (and something else?), ICANN’s mission is to coordinate the global Internet’s systems of unique identifiers by: 1. Coordinating operation of the DNS root server system 2. [IP addresses and protocol port and parameter numbers] 3. Implementing Consensus Policies (as defined in Specification 1) that ensure the stable and secure operation of the Internet’s unique names systems and that involve issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, security and/or stability of the DNS. Commitments to the Community: In carrying out its mission, ICANN must: 1. Limit activities to matters that are (a) within ICANN’s mission and (b) require global coordination 2. Preserve operational stability, reliability, security, interoperability and openness of the Internet 3. Operate transparently, in the public interest, and in accordance with multi-stakeholder model 4. Not advance the interests of one or more interest groups at the expense of others (avoid regulatory capture) 5. Respect the roles of SOs, ACs, and external expert bodies 6. Support the bottom up, multistakeholder model of policy development consistent with this compact, reflecting the functional, geographic, and cultural diversity of the Internet 7. Rely on market mechanisms to promote and sustain a competitive environment 8. Apply documented policies consistently, objectively, neutrally and fairly 9. Remain accountable through mechanisms defined in Bylaws 10. Duly consider governmental public policy recommendations that are consistent with the Bylaws 11. Operate with excellence and in a fiscally responsible manner J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz

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Re: [Wp2-compactmission] Let's get cooking
by Burr, Becky March 18, 2015

March 18, 2015

All – I’ve updated this to include work forwarded by Matthew and Keith in the course of WP1. That additional info is in teal font below Mission Statement and Core Values Compact: A clear, concise and widely-accepted definition of ICANN’s limited mission, core values, powers and restrictions is needed to ensure the future accountability of ICANN’s management to the multi-stakeholder community. Accordingly, the ICANN Bylaws should be amended to include the Mission Statement and Core Values Compact as part of the durable or “golden” provisions that cannot be amended [except in specified circumstances]. In addition, the provisions should be incorporated by reference into agreements with Contracted Parties. These provisions will further be incorporated into the review and redress mechanism and serve as a basis to challenge ICANN’s actions/failure to act. ICANN’s mission is to coordinate the global Internet’s systems of unique identifiers by: 1. Coordinating operation of the DNS root server system 2. [IP addresses and protocol port and parameter numbers]2- Coordinating at the overall level the allocation and assignment of Internet protocol (“IP”) addresses and autonomous system (“AS”) numbers. 3. Coordinating the allocation and assignment of protocol port and parameter numbers. 34. Implementing Consensus Policies (as defined in Specification 1) that (a) ensure the stable and secure operation of the Internet’s unique names systems and (b) that involve issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS. In carrying out its mission, [Note, this added chapeau from Articles of Incorporation] ICANN must operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable law and international conventions and through open and transparent processes that enable competition and open entry in Internet-related markets. Specifically, ICANN must: 1. Limit its activities to matters that are (a) within ICANN’s mission and (b) require global coordination; a. Alternative from WP1: “Limiting its role to operations, policy development and coordination of domain names and related internet identifiers as per its mission. Changes to the scope of this mission must be determined and agreed to by the broader ICANN community.” [Note, I am uncomfortable with expanded scope, whether or not community supports. What if community decided, for example, that ICANN should regulate content, etc.?] 2. Preserve the operational stability, reliability, security, interoperability, resilience, and openness of the DNS and the global Internet 3. Operate democratically and transparently, in the public interest, and in accordance with multi-stakeholder model [Alt from WP1: operate as a multi-stakeholder, private-sector led organization with input from the public, for whose benefit ICANN shall in all events act] 4. Not advance Refrain from advancing the interests of one or more interest groups at the expense of others; [NOTE: I think this needs to be refined. Sometimes there will be winners and losers, we don’t want to create a monster.] 5. Avoid content regulation; 6. Fully rRespect the roles of SOs, ACs, and external expert bodies; 7. Continue to S support the bottom up, multistakeholder model of policy development consistent with this compact, reflecting the functional, geographic, and cultural diversity of the Internet; 8. Rely on market mechanisms to promote and sustain a healthy competitive environment; 9. Apply documented policies consistently, objectively, neutrally and fairly; 10. Remain accountable through mechanisms defined in the Bylaws; 11. Duly consider governmental public policy recommendations that are consistent with the Bylaws; and 12. Operate with efficiency, excellence and in a fiscally responsible and accountable manner. THE ICANN BYLAWS GO ON TO STATE THE FOLLOWING: These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values. I have always been very uncomfortable with this language, as it could form the basis of an exception that swallows the rule. At the same time, sometimes balancing will be required. I would be more comfortable with a formulation that limits any balancing "must be narrowly tailored and no broader than reasonably necessary to address a Substantial and Compelling Reason in the Public Interest” where a “Substantial and Compelling Reason in the Public Interest” is defined as “a reason that is justified by an important, specific, and articulated public interest goal that is within ICANN's mission and consistent with a balanced application of this core values compact.” · Additional suggestions from WP1 To implement such clarifications: o A more detailed list of enumerated powers could be incorporated into ICANN’s bylaws. • Any powers not enumerated for ICANN would remain outside ICANN’s purview. • Any changes to the enumerated powers would require community agreement via a clearly-defined process for amending ICANN’s bylaws. o The “Powers” section of the bylaws could be amended to refer specifically to ICANN’s limited role and responsibilities, but also to acknowledge more directly the leadership role of the Supporting Organizations in policy development. o The “Restrictions” section of the bylaws could be amended to include a corresponding restriction under Article II, Section 2, as follows: • “ICANN shall not expand or amend its mission, core values, powers or restrictions without the support of ICANN’s multi-stakeholder community.” J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: <Burr>, Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>> Date: Sunday, March 15, 2015 at 4:52 AM To: Matthew Shears <mshears(a)cdt.org<mailto:mshears@cdt.org>> Cc: Keith Drazek <kdrazek(a)verisign.com<mailto:kdrazek@verisign.com>>, Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>, "grace.abuhamad(a)icann.org<mailto:grace.abuhamad@icann.org>" <grace.abuhamad(a)icann.org<mailto:grace.abuhamad@icann.org>> Subject: Re: [Wp2-compactmission] Let's get cooking Thanks for reminding me Matthew, will add tomorrow Sent from my iPad On Mar 13, 2015, at 6:08 PM, Matthew Shears <mshears(a)cdt.org<mailto:mshears@cdt.org>> wrote: Thanks Becky - does this include the suggestions that were ported over from WP1? On 3/13/2015 5:21 PM, Burr, Becky wrote: My email from earlier today on compact/mission stuff J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: <Burr>, Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>> Date: Friday, March 13, 2015 at 12:11 PM To: David Post <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com>> Cc: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" <wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Subject: Re: [Wp2-compactmission] Let's get cooking All – these are the suggested changes that we’ve received to date. The changes in red have been specifically proposed by others, while the changes and additions in blue reflect my attempt to incorporate more general suggestions and contributions. Please review and share your reactions, keeping in mind that we need to deliver a draft to the larger group on March 20 in advance of the Istanbul meeting. Please read all the way down to the bottom, where there is an important issue to be considered. Mission Statement and Core Values Compact: The ICANN Bylaws should be amended to include the Mission Statement and Core Values Compact as part of the durable or “golden” provisions that cannot be amended [except in specified circumstances]. In addition, the provisions should be incorporated by reference into agreements with Contracted Parties. These provisions will further be incorporated into the review and redress mechanism and serve as a basis to challenge ICANN’s actions/failure to act. ICANN’s mission is to coordinate the global Internet’s systems of unique identifiers by: 1. Coordinating operation of the DNS root server system 2. [IP addresses and protocol port and parameter numbers]2- Coordinating at the overall level the allocation and assignment of Internet protocol (“IP”) addresses and autonomous system (“AS”) numbers. 3. Coordinating the allocation and assignment of protocol port and parameter numbers. 34. Implementing Consensus Policies (as defined in Specification 1) that (a) ensure the stable and secure operation of the Internet’s unique names systems and (b) that involve issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS. In carrying out its mission, [Note, this added chapeau from Articles of Incorporation] ICANN must operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable law and international conventions and through open and transparent processes that enable competition and open entry in Internet-related markets. Specifically, ICANN must: 1. Limit its activities to matters that are (a) within ICANN’s mission and (b) require global coordination; 2. Preserve the operational stability, reliability, security, interoperability, resilience, and openness of the DNS and the global Internet 3. Operate democratically and transparently, in the public interest, and in accordance with multi-stakeholder model 4. Not advance Refrain from advancing the interests of one or more interest groups at the expense of others; [NOTE: I think this needs to be refined. Sometimes there will be winners and losers, we don’t want to create a monster.] 5. Avoid content regulation; 6. Fully rRespect the roles of SOs, ACs, and external expert bodies; 7. Continue to S support the bottom up, multistakeholder model of policy development consistent with this compact, reflecting the functional, geographic, and cultural diversity of the Internet; 8. Rely on market mechanisms to promote and sustain a healthy competitive environment; 9. Apply documented policies consistently, objectively, neutrally and fairly; 10. Remain accountable through mechanisms defined in the Bylaws; 11. Duly consider governmental public policy recommendations that are consistent with the Bylaws; and 12. Operate with efficiency, excellence and in a fiscally responsible and accountable manner. THE ICANN BYLAWS GO ON TO STATE THE FOLLOWING: These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values. I have always been very uncomfortable with this language, as it could form the basis of an exception that swallows the rule. At the same time, sometimes balancing will be required. I would be more comfortable with a formulation that limits any balancing "must be narrowly tailored and no broader than reasonably necessary to address a Substantial and Compelling Reason in the Public Interest” where a “Substantial and Compelling Reason in the Public Interest” is defined as “a reason that is justified by an important, specific, and articulated public interest goal that is within ICANN's mission and consistent with a balanced application of this core values compact.” THOUGHTS? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: David Post <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com>> Date: Friday, March 13, 2015 at 10:04 AM To: Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" <wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Subject: Re: [Wp2-compactmission] Let's get cooking I share Paul's concern about this; this is a good opportunity to make, as I think Becky is suggesting, the limitations regarding "consensus policies" and substantive limitations on the Board's power clearer than perhaps they've been; and the clearer they are, the easier it will be to make them enforceable by the IRP. The definition in Spec. 1 doesn't quite do the trick - it refers back to the Bylaws, but the "procedure set forth in the Bylaws" doesn't clearly specify the nature of the "consensus" that is required (and in any event, the Bylaws can be amended from time to time to remove the requirement ...). So I think the first thing that is needed is a provision in te Bylaws, which can only be changed with some supermajority of the Board (plus others?), that ICANN can only impose policies on which there is a consensus of Internet stakeholders, and, importantly, that it is the Board's responsibility to demonstrate that such a consensus has been achieved. The second set of limitations, which I think also need to be in the Bylaws, is the "picket fence." On this, I think Spec 1 does a good job: 1.2.1 issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet or Domain Name System (“DNS”); 1.2.2 functional and performance specifications for the provision of Registry Services; 1.2.3 Security and Stability of the registry database for the TLD; 1.2.4 registry policies reasonably necessary to implement Consensus Policies relating to registry operations or registrars; 1.2.5 resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names); or 1.2.6 restrictions on cross-ownership of registry operators and registrars or registrar resellers and regulations and restrictions with respect to registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or registrar reseller are affiliated. So in answer to Paul's question/concern: if these provisions were in the ByLaws, AND there was an IRP that was charged with determining whether the Board had acted contrary to the provisions of the ByLaws, possessing the power to invalidate Board action that it determines is contrary to the Bylaws. I would say, in those circumstances, the IRP would have sufficient cause to invalidate action by the ICANN Board to set up a UDRP-Copyright scheme. First, there's no demonstrated consensus that such a thing is desirable (I don't believe), and it is not "reasonably necessary to faciltitate interoperability, security and/or stability" of the DNS, nor does it meet any of the other "picket fence" requirements. David At 04:42 PM 3/10/2015, Burr, Becky wrote: This is, unfortunately, one of the hardest issues. The trademark/cybersquatting issue is something that has more or less fair game for ICANN from the beginning, but it’s hard to fit it in (except as a legacy) to ICANN’s mission/values. Specification 1, which is part of the Registry Agreement and the Registrar Accreditation Agreement go on to say: “Consensus Policies” are those policies established (1) pursuant to the procedure set forth in ICANN’s Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this Specification. The Consensus Policy development process and procedure set forth in ICANN’s Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including the operators of gTLDs. Consensus Policies shall relate to one or more of the following: 1.2.1 issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet or Domain Name System (“DNS”); 1.2.2 functional and performance specifications for the provision of Registry Services; 1.2.3 Security and Stability of the registry database for the TLD; 1.2.4 registry policies reasonably necessary to implement Consensus Policies relating to registry operations or registrars; 1.2.5 resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names); or 1.2.6 restrictions on cross-ownership of registry operators and registrars or registrar resellers and regulations and restrictions with respect to registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or registrar reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 of this Specification shall include, without limitation: 1.3.1 principles for allocation of registered names in the TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2 prohibitions on warehousing of or speculation in domain names by registries or registrars; 41 1.3.3 reservation of registered names in the TLD that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); and 1.3.4 maintenance of and access to accurate and up-to-date information concerning domain name registrations; and procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility for serving registered domain names in a TLD affected by such a suspension or termination. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> From: Paul Rosenzweig < paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Tuesday, March 10, 2015 at 3:16 PM To: 'David Post' <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com> >, " wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>" < wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org>> Subject: Re: [Wp2-compactmission] Let's get cooking I tend to agree on this point with David – the enforceability comes from the other mechanisms. The compact defines just the limitations A test question – David has written about the use of ICANN to enforce copyright and trademark law. On the merits I agree with his view that this should not be ICANN’s mission, but that is not my test question. My test question is the related one: ASSUMING that you agree that copyright enforcement is outside ICANN’s remit, does the language below make that clear in a way that has sufficiently well defined standards that an outside arbiter could adjudicate it? I tend to think not … P Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> [[]]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> From: David Post [mailto:david.g.post@gmail.com ] Sent: Tuesday, March 10, 2015 10:14 AM To: wp2-compactmission(a)icann.org<mailto:wp2-compactmission@icann.org> Subject: Re: [Wp2-compactmission] Let's get cooking At 08:59 AM 3/10/2015, David W. Maher wrote: Compact with Community Strawman: ICANN will limits its scope of activity to issues that are within its Mission, and in carrying out its Mission ICANN will conduct itself in accordance its Community Compact. The Compact will be a contract enforceable by courts having jurisdiction over ICANN. The other parties to the contract will be registries, registrars and ????? Does this statement re enforceability need to be in the compact statement itself? It might be read to imply that it is NOT enforceable, for example, by the IRP - which it should be, in my opinion. I think we might want to simply state the compact, and leave the enforceability question for elsewhere David Mission Statement: in accordance with Bylaws (and something else?), ICANN’s mission is to coordinate the global Internet’s systems of unique identifiers by: 1. Coordinating operation of the DNS root server system 2. [IP addresses and protocol port and parameter numbers] 3. Implementing Consensus Policies (as defined in Specification 1) that ensure the stable and secure operation of the Internet’s unique names systems and that involve issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, security and/or stability of the DNS. Commitments to the Community: In carrying out its mission, ICANN must: 1. Limit activities to matters that are (a) within ICANN’s mission and (b) require global coordination 2. Preserve operational stability, reliability, security, interoperability and openness of the Internet 3. Operate transparently, in the public interest, and in accordance with multi-stakeholder model 4. Not advance the interests of one or more interest groups at the expense of others (avoid regulatory capture) 5. Respect the roles of SOs, ACs, and external expert bodies 6. Support the bottom up, multistakeholder model of policy development consistent with this compact, reflecting the functional, geographic, and cultural diversity of the Internet 7. Rely on market mechanisms to promote and sustain a competitive environment 8. Apply documented policies consistently, objectively, neutrally and fairly 9. Remain accountable through mechanisms defined in Bylaws 10. Duly consider governmental public policy recommendations that are consistent with the Bylaws 11. Operate with excellence and in a fiscally responsible manner J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> _______________________________________________ Wp2-compactmission mailing list Wp2-compactmission(a)icann.org<mailto:Wp2-compactmission@icann.org> https://mm.icann.org/mailman/listinfo/wp2-compactmission<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> ******************************* 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_…>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A…> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmu…> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbs…> ******************************* ******************************* 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_…>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A…> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmu…> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25C2-…> *******************************

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FW: [Party2] Purpose of ICANN and its mission
by Burr, Becky March 11, 2015

March 11, 2015

The difference between the Articles and Bylaws is interesting. From my perspective, ICANN should be required to carry out its mission in a manner that serves the public interest, but its obligation to serve the public interest should be constrained by its mission J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz / www.neustar.biz On 3/5/15, 9:29 PM, "Bruce Tonkin" <Bruce.Tonkin(a)melbourneit.com.au> wrote: >Just following up from the call today, ICANN has its purpose as defined >in its Articles of Incorporation, and a simplified Mission defined in its >bylaws. > >My comment was that if the scope of the purpose/mission is to be >clarified, and if the intent is to lock it in so it can't be changed by >the Board without community approval of some form, it is worth looking >at the two sets of language. > >From the Articles of Incorporation: >https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_abou >t_governance_articles&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRl >aq8Mo8TjDmrxdYahOP8WDDkMr4k&m=ULCJzM6lktsEdjgVKLVDzIv9kImPzHLgGIoVSKfaMIY& >s=yYhE78JdtKd9Glgh6Tu5rijANYMFuut9I6TBc4BKTks&e= > >"This Corporation is a nonprofit public benefit corporation and is not >organized for the private gain of any person. It is organized under the >California Nonprofit Public Benefit Corporation Law for charitable and >public purposes. The Corporation is organized, and will be operated, >exclusively for charitable, educational, and scientific purposes within >the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as >amended (the "Code"), or the corresponding provision of any future United >States tax code. Any reference in these Articles to the Code shall >include the corresponding provisions of any further United States tax >code. > > In furtherance of the foregoing purposes, and in recognition of the fact >that the Internet is an international network of networks, owned by no >single nation, individual or organization, the Corporation shall, except >as limited by Article 5 hereof, pursue the charitable and public purposes >of lessening the burdens of government and promoting the global public >interest in the operational stability of the Internet by > >(i) coordinating the assignment of Internet technical parameters as >needed to maintain universal connectivity on the Internet; > > (ii) performing and overseeing functions related to the coordination of >the Internet Protocol ("IP") address space; > >(iii) performing and overseeing functions related to the coordination of >the Internet domain name system ("DNS"), including the development of >policies for determining the circumstances under which new top-level >domains are added to the DNS root system; > > (iv) overseeing operation of the authoritative Internet DNS root server >system; > >and (v) engaging in any other related lawful activity in furtherance of >items (i) through (iv). > >The Corporation shall operate for the benefit of the Internet community >as a whole, carrying out its activities in conformity with relevant >principles of international law and applicable international conventions >and local law and, to the extent appropriate and consistent with these >Articles and its Bylaws, through open and transparent processes that >enable competition and open entry in Internet-related markets. > >To this effect, the Corporation shall cooperate as appropriate with >relevant international organizations." > > >The mission in the bylaws is much more stripped down and doesn't mention >promoting the global public interest: > > >https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resourc >es_pages_governance_bylaws-2Den-23I&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62 >cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=ULCJzM6lktsEdjgVKLVDzIv9kImPzH >LgGIoVSKfaMIY&s=Yqrixk5Tgepi-TLBfBgHBMFasxl_61GxYwJo_5jn4EE&e= > > >Instead it states: > >"The mission of The Internet Corporation for Assigned Names and Numbers >("ICANN") is to coordinate, at the overall level, the global Internet's >systems of unique identifiers, and in particular to ensure the stable and >secure operation of the Internet's unique identifier systems. In >particular, ICANN: > >1. Coordinates the allocation and assignment of the three sets of unique >identifiers for the Internet, which are > > a. Domain names (forming a system referred to as "DNS"); > > b. Internet protocol ("IP") addresses and autonomous system ("AS") >numbers; and > > c. Protocol port and parameter numbers. > >2. Coordinates the operation and evolution of the DNS root name server >system. > >3. Coordinates policy development reasonably and appropriately related >to these technical functions." > > > >The ICANN community rarely references the Articles of Incorporation, but >I think the purpose defined in those Articles is important. > >Regards, >Bruce Tonkin > >_______________________________________________ >WP2 mailing list >WP2(a)icann.org >https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ >listinfo_wp2&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjD >mrxdYahOP8WDDkMr4k&m=ULCJzM6lktsEdjgVKLVDzIv9kImPzHLgGIoVSKfaMIY&s=c90vJMs >kz3Ch0HC31KgqxpgYSxF8MNtARcQRxdjnrcQ&e=

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Let's get cooking
by alain.bidron＠orange.com March 11, 2015

March 11, 2015

Dear all, May I suggest to replace the part with brackets by: “2- Coordinating at the overall level the allocation and assignment of Internet protocol (“IP”) addresses and autonomous system (“AS”) numbers. Insert a new “3” “3- Coordinating the allocation and assignment of protocol port and parameter numbers. Previous 3 is now a 4 without any change from Mr Arasteh proposal: 4- Implementing Consensus BASED Policies (as defined in Specification 1) that ensure the stable and secure operation of the Internet’s unique names systems and that involve issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, security and/or stability of the DNS. Totally inspired by the current bylaws. Regards Alain _________________________________________________________________________________________________________________________ Ce message et ses pieces jointes peuvent contenir des informations confidentielles ou privilegiees et ne doivent donc pas etre diffuses, exploites ou copies sans autorisation. Si vous avez recu ce message par erreur, veuillez le signaler a l'expediteur et le detruire ainsi que les pieces jointes. Les messages electroniques etant susceptibles d'alteration, Orange decline toute responsabilite si ce message a ete altere, deforme ou falsifie. Merci. This message and its attachments may contain confidential or privileged information that may be protected by law; they should not be distributed, used or copied without authorisation. If you have received this email in error, please notify the sender and delete this message and its attachments. As emails may be altered, Orange is not liable for messages that have been modified, changed or falsified. Thank you.

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