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

[Bruce Tonkin]

Hello Becky,


>>  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

Yes - I think it is being a bit more specific for the avoidance of doubt.   You could interpret policy implementations in different ways.


>>  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).  

I think ultimately the final bylaws language will be key.    It is not easy to draft as we have seen from all the emails on the topic on this list.

>>  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"?  

Yes.

>>  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. 

Yes - as noted before though the key will be in developing appropriate bylaws language.    It is not easy to draft.


>>  [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"]

Our US legal advisors have been consistent in that they do not believe that ICANN is a regulator under the US legal environment.  


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;

Agreed.

>>  II.   Spec 1 of the RA and Spec 4 of the RAA describe activities within ICANN's Mission; and

Agreed,

>>  III. 
The parties to existing Registry Agreements and Registrar Accreditation Agreements are bound by those agreements.  

Agreed.

Regards,
Bruce Tonkin