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

[Dr Eberhard W Lisse]

Occasionally I like to follow my own posts...

On reflection, with Ms Gross and myself having objected, and now the ALAC members having had their mind changes for them, it means we do not have Consensus.

Nice tactics...


el

-- 
Sent from Dr Lisse's iPad mini

> On 17 Dec 2015, at 23:55, Dr Eberhard W Lisse <el at lisse.na> wrote:
> 
> Now I do not want to accuse Mr Greenberg of being intelligent, but that the ALAC appointed members to the CCWG agree to everything this CCWG comes up with just to renege on it, all the effing time, does cast doubt on that AC's involvement in the process. Again.
> 
> Never mind their attempt to elevate themselves to the level of a SO.
> 
> 
> el
> 
> -- 
> Sent from Dr Lisse's iPad mini
> 
>> On 17 Dec 2015, at 21:53, Burr, Becky <Becky.Burr at neustar.biz> wrote:
>> 
>> According to the Draft Issues document circulated by Alan Greenberg, “ALAC has a grave concern that the wording used to restrict ICANN’s mission may have inadvertent results which severely impact its ability to carry out its intended mission.”  That’s a pretty serious charge and I thought it would make sense to begin a substantive discussion of the ALAC points.  Here is my attempt to start that conversation.  In the hope of moving this issue forward quickly, I am stepping out of my role as rapporteur here and expressing my personal views.  I apologize in advance for the length of this post, but wanted to respond as fully as possible to the ALAC Draft. 
>>  
>> 1.   According to the Draft Summary, the notes to drafters incorrectly imply that ICANN’s Mission is limited to the “picket fence.”
>>  
>> I believe this is inaccurate.  ICANN’s Mission is specifically described as coordinating the development and implementation of bottom-up policies for which uniform coordinate resolution is reasonably necessary to facilitate the openness,, interoperability, and/or stability [of the DNS].  The note to drafters says that RAA Spec 4 and RA Spec 1 “are intended and understood to be within the scope of ICANN’s Mission.” 
>>  
>> 2.   According to the Draft Summary, the ALAC wants a legal opinion that provides assurance that the “many areas of contracts” outside the so-called “picket fence,” established by negotiation, or other than through a PDP “may be renewed without change in the areas in question.”  This concern also extends to new gTLD operators who have not signed contracts yet.
>>  
>> I think we need to break this question down a bit. 
>>  
>> ·      First, recall that the Mission specifically empowers ICANN to “implement” policies.  Also recall that the text we have provided states “ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.”  Most of the provisions of the RA and RAA of concern should be covered by these authorities, IMHO.
>>  
>> ·      Second, I acknowledge that there could be some new gTLD applicant-provided PICs and new gTLD applicant-provided operating rules that fall outside of ICANN’s Mission Statement.  For example, suppose the applicant for .singlemaltscotch specified in its application (which is, in turn, incorporated into its Registry Agreement) that all registrants in the domain must be 21 years old.  That requirement probably is not strictly necessary to facilitate the openness, interoperability, resilience, security and/or stability [of the DNS].  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.)
>>  
>> ·      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. 
>>  
>> ·      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. 
>>  
>> 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.
>>  
>> 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
>> 
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