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

[Mueller, Milton L]

This was an interesting exchange between Bruce and Becky. 

Maybe I am just an optimist, but I see Bruce responding to Becky's step by step set of questions and _agreeing_ with the basic principles and intent of the CCWG regarding the mission limitations. Bruce's main point seems to be: " ultimately the final bylaws language will be key" and "it will not be easy to draft." 

I would agree, and so I would ask Bruce to take back to the board (and its lawyers) this message: 

Don't mess with the wording of the 3rd draft on mission and commitments, and don't try to substitute language that the board (or its lawyers) came up with quickly and unilaterally for language that this much larger and more diverse group of stakeholders hashed out painstakingly over a longer period. If you fundamentally agree with what we are trying to do with the mission limitations (and the intent should be abundantly clear from the record) focus on the wording of the final bylaws language, help us to draft this language in a way that doesn't have unintended consequences. 

I think we could avoid a lot of delay and angst if we took that approach. 

On the other hand, if you (the board and its lawyers) DON'T agree with the spirit and intent of those mission limitations, please make that clear. Then it would be clear that we do have a substantive conflict and the community would be in a position to decide what to do about it.

--MM


> -----Original Message-----
> 
> 
> >>  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
> 
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