[CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

David Post david.g.post at gmail.com
Tue Dec 15 12:55:41 UTC 2015 

There are several troubling things in the Board's 
comments on the Mission Statement.

The CCWG Mission Statement had two fundamental 
constraints on ICANN's powers:  a "picket fence," 
and a requirement that policies imposed by ICANN 
on DNS participants have to be developed through 
a consensus-based multi-stakeholder process.

The Board's comments appear to do away with both 
of these constraints. Instead, the Board would 
substitute a simplified Mission Statement - "to 
ensure the stable and secure operation of the 
global, interoperable Internet's unique 
identifier systems" - a statement that ICANN will 
only as "reasonably appropriate" to achieve that 
Mission, and two additional Principles:

(1) that "ICANN's entering into and enforcement 
of Registry and Registrar contracts is an 
important component of ICANN's work in 
coordination and allocation of names in the Root Zone of the DNS"; and
(2) that "ICANN is not a regulator, and does not 
regulate content through these contracts."

The consensus requirement has disappeared 
entirely.  As I read it, anything that the ICANN 
Board decides is "reasonably appropriate" for the 
"stable and secure operation of the [DNS]" is 
within its power to impose on third parties - 
whether or not it has been subject of consensus decision-making.

And the Mission Statement is watered down still 
further in regard to the question of ICANN's 
contracting powers.  The CCWG proposal already 
acknowledged that "ICANN shall have the ability 
to negotiate, enter into, and enforce agreements 
with contracted parties in service of its 
Mission."  This was intended to make clear that 
ICANN's powers to impose conditions on 3d parties 
through its contracts are limited by the Mission; 
ICANN can't make an "end run" around the Mission 
Statement limitations through its 
contracts.   The Board's comment omits that 
italicized language, which would seem to imply a 
view that ICANN's power to contract with others 
(including Registries and Registrars) is NOT 
subject to ICANN's Mission, and that ICANN can 
condition access to the DNS on whatever 
conditions it sees fit to impose.  If that's what 
was intended, I believe it represents a serious difference of opinion.

Finally, why does the Board prefer its language in its Principle 2 -
"ICANN is not a regulator, and does not regulate 
content through these contracts" -

to the CCWG proposal language
"ICANN shall not impose regulations on services 
that use the Internet's unique identifiers or the 
content such services carry or provide"

?   To use an example we used before: Suppose 
ICANN requires all registrants to agree to abide 
by the decisions of its new Consumer Protection 
Dispute Resolution Procedure (CPDRP),which will 
evaluate claims of consumer fraud.  A challenger 
says: "That's outside of ICANN's Mission, and it 
violates the "no content regulation" 
principle."  I think it's fair to say that we 
want that challenge to succeed - this is 
precisely the sort of thing we don't want ICANN to be doing in the future.
But under the Board's view, ICANN will be able to 
say:  "No, we're not a regulator - and this isn't 
a 'regulation' of content or anything else - it's 
just a contract, and we can do what we like through our contracts."

Unless I'm misreading your comments, it's 
difficult for me to see how these views can be reconciled.

David

At 03:13 PM 12/14/2015, Burr, Becky wrote:
>Bruce -
>
>Could I ask for some clarification on the 
>Board’s comments on the Mission statement?
>
>1.  I understand that ICANN has an “operational” 
>role with respect to names, but I am not sure 
>why that is not encompassed by concept of 
>“implementation of domain name policies”?  (The 
>Mission statement does not limit ICANN’s role to 
>policy development, and specifically includes 
>policy implementation.)  So, it is important to 
>understand what the Board means when it refers 
>to “allocation and assignment of names in the 
>root zone” and to understand why such activities 
>might fall outside of policy implementation.  It 
>would help to have concrete examples of the 
>Board’s concern here, because I suspect we agree 
>that ICANN does not have authority to allocate 
>and assign new gTLDs outside of a policy 
>development process, or to allocate and assign 
>ccTLDs outside RFC 1591.  The Board’s view here 
>also has important implications for resolving 2.B. below
>
>2.  I understand the Board is concerned about 
>vague language regarding contractual 
>enforcement.  But I’’m a little vague on what 
>language is and is not acceptable to the Board 
>(keeping in mind that none of this is intended as final Bylaws language).
>
>A.  Does the Board accept (both conceptually and 
>as a concept in the Bylaws) that “ICANN shall 
>act strictly in accordance with, and only as 
>reasonably appropriate to achieve its Mission”?
>
>B.  Does the Board propose to replace (in some 
>place other than the Mission Statement) the following two concepts:
>
>ICANN shall not impose regulations on services 
>that use the Internet’s unique identifiers or 
>the content that such services carry or provide; and
>ICANN shall have the ability to negotiate, enter 
>into, and enforce agreements with contracted parties in service of its Mission
>
>With these concepts:
>
>ICANN’s entering into and enforcement of 
>Registry and Registrar contracts is an important 
>component of ICANN’s work in coordination and 
>allocation of names in the Root Zone of the DNS; and
>ICANN is not a regulator and does not regulate 
>content through these contracts.
>[Aside - I assume ICANN is merely asserting its 
>status here, and is not actually willing to 
>agree to language prohibiting it from acting as a “regulator”]
>
>
>
>3.  Whether or not the following concepts belong 
>in the Bylaws, does the Board agree that:
>
>I.  The prohibition on regulation of “content” 
>is not intended to prevent ICANN policies from 
>taking into account the use of domain names as 
>identifiers in various natural languages;
>II.   Spec 1 of the RA and Spec 4 of the RAA 
>describe activities within ICANN’s Mission; and
>III.  The parties to existing Registry 
>Agreements and Registrar Accreditation 
>Agreements are bound by those agreements.
>
>
>Thanks.
>
>B
>
>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 
>/ <http://www.neustar.biz>neustar.biz
>
>From: Bruce Tonkin 
><<mailto:Bruce.Tonkin at melbourneit.com.au>Bruce.Tonkin at melbourneit.com.au>
>Date: Monday, December 14, 2015 at 5:49 AM
>To: Accountability Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board 
>Comments on Third CCWG-Accountability Draft 
>Proposal on Work Stream 1 Recommendations
>
>Hello Jordan,
>
>Thanks for posting to the list.
>
>The comments are also available in the public comment forum at:
>
><https://urldefense.proofpoint.com/v2/url?u=http-3A__forum.icann.org_lists_comments-2Ddraft-2Dccwg-2Daccountability-2Dproposal-2D30nov15_msg00011.html&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=iW32Hzmtks3csdT35yoDnewxY1qpThZOMgm4lAhs1is&s=5YoT41DhstPoCt-F83_aupS65UqO3DBFX9YrdeFCgdA&e=>http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30nov15/msg00011.html
>
>We had a half day meeting of the full Board on 
>Thursday 10 Dec, and then spent a few hours 
>again with the full Board finalizing the 
>comments yesterday – Sunday 13 Dec.      That 
>was in addition to another half day meeting held 
>on Saturday 5 Dec.   All dates are relative to my time zone J
>
>Regards,
>Bruce Tonkin
>_______________________________________________
>Accountability-Cross-Community mailing list
>Accountability-Cross-Community at icann.org
>https://mm.icann.org/mailman/listinfo/accountability-cross-community

*******************************
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