[CCWG-ACCT] Personal Responses to Draft Summary of ALAC Issues on Mission (Recommendation 5)

[Mueller, Milton L]

Becky, I think trying to answer ALAC questions is an improper shift in the burden of proof. I think the question that Alan and the other 14 people on ALAC need to answer is whether they believe there should be ANY limits on ICANN's scope of authority that can be exercised via contracting with registrars and registries. My belief, based on the comments I see here, is that they do not want there to be any such limits.

Could an ALAC spokesperson, or even an individual ALAC member, answer that question with a simple yes or no? Should the mission limit what ICANN can do via its contracts? If your answer is No, then it's clearly going to be a nonconsensual position and we will just have to go on without it. If the answer is Yes, I'd be interested in seeing examples of what kinds of things the 15 people in ALAC think ARE outside of CANN's scope and mission and would constitute an over-reaching use of its authority.

More responses to Becky in line below:


While I don't think that ICANN has the authority to demand that the registry operator adopt such a policy, I have no problem whatsoever with ICANN holding the registrant to that policy if it was offered as part of the application.  (Others may well disagree with me.)

I do disagree. One problem is that the line between what ICANN demands and what is offered "voluntarily" by the registry is unclear, and easily fudged, given ICANN's monopoly position. For example, suppose someone applied for that TLD and the GAC and ALAC advised that the applicant not be given the domain unless they adopted such a policy. If this would be classified as the registry "voluntarily" adopting the policy (because they will be denied entry if they don't) it is very clearly an example of ICANN using its monopoly control of the root to impose regulation on the users



·      Third, rather than speaking in generalities, could we talk about some specific provisions that arguably fall outside ICANN's Mission and its implementation authority?  I'm asking both sides for contributions on this point.



MM: I think David Post and I and others have provided numerous examples of this.


·      Finally - the request for a "legal opinion."  I will repeat what I've already said, these kind of open-ended questions produce very expensive, very unsatisfying legal opinions.  Rather than chase this option, once we agree on the problem statement, let's ask the lawyers if there is language that could be added to reinforce the likelihood that any challenge will be resolved in the manner we collectively anticipate.

MM: totally agree


3.   According to the ALAC Draft Summary "anything which would allow an IRP to invalidate the current contractual terms is not acceptable."

I don't think that there is a risk of invalidating the current contractual terms - and the language that we have discussed as an additional note to drafters would reinforce that (This means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements.  It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face are ultra vires.  It does not, however, modify any contracting party's right to challenge the other party¹s interpretation of that language.)  I don't have a particular problem extending that to existing applicants who have yet to sign registry agreements, though others might.

But seriously, is ALAC asking for a guarantee that certain provisions cannot be challenged?  That is not a reasonable ask IMHO.  That's because it is always the case that ICANN could choose to enforce a provision of an existing agreement in a manner that is a frank violation of the Mission.  I've previously provided several examples in the context of 3.18 of the RAA, which I believe is - on its face - consistent with Mission, but which could be enforced in a manner that is not.


4.   ALAC continues to object to the removal of the "where feasible and appropriate" caveat to the Core Values regarding reliance on market mechanisms to promote and sustain a competitive environment.



ALAC takes exception with my point that "ICANN does not possess the requisite skill or authority to intervene in the competitive market," citing the RSEP provisions regarding concerns about significant competition issues.  I think the example completely supports my point here.  In the RSEP, if ICANN has competition concerns, it has the authority to "refer the matter to the appropriate competition authority."  From that point it is entirely up to the appropriate competition authority to exercise its sovereign authority with respect to antitrust law.  If the concern is that somehow the omission of the "where feasible and appropriate" language would prevent ICANN from making such a referral (which I don't believe is the case), then I am happy to clarify.  But taking competition law into its own hands is, IMHO, a very clear example of the kind of regulatory authority that ICANN should not have.



5.   ALAC objects to the Commitment to "preserve and enhance the neutral and judgment free operation of the DNS," pointing out that the NTIA requirement is limited to the "neutral and judgment free administration of the technical DNS and IANA functions."

Good point, I am ok with that change.

MM: I am not ok with that change


6.   The ALAC believes that the AoC commitment to "consumer trust" should be in the ICANN Commitments and Core Values rather than in the AoC reviews provisions of the Bylaws.


Section 3 of the AoC describes what the "document" (the AoC) accomplishes:  it affirms key commitments by DOC and ICANN, including commitments "to promote competition, consumer trust, and consumer choice in the DNS marketplace."  The context for promoting consumer trust is found exclusively in Section 9.3, which describes the reviews that must be undertaken in connection with the expansion of the top level domain space.  This issue was debated extensively within the CCWG.  A general commitment to promoting consumer trust threatens massive scope creep IMHO.


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 / neustar.biz<http://www.neustar.biz>
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