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

[Alan Greenberg]

Becky, thanks for taking the time and effort to 
reply. Please see my comments embedded.

As with your comments, these are my personal 
comments and have not been passed by my ALAC/At-Large colleagues.

Alan

At 17/12/2015 02:53 PM, Burr, Becky 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.

AG: That was not a "charge" but a concern. My 
reading of the Board comments is that they have a 
similar concern. That does not make it any more 
valid, but does imply that we are not alone in 
worrying that the new mission statements, where 
some of the implications of the wording is 
unclear, and where there may be implications due 
to interactions among the various new clauses is 
a possible source of future problems in the 
enforcing of the contracts that are at the core of our gTLD responsibilities.

That "grave concern" was an overall caveat. The 
text that followed were the specific issues that 
we have identified to date. The caveat was 
expressing the worry that there may be others 
lurking. You will recall that the current 
grandfathering language was only invented after 
the ALAC expressed concern over the proposed text 
allowing current contracts (or parts of them such 
as PICs) from being questions via an IRP.


>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.”

AG:The area in question is whether the parts of 
contracts that were not developed through a 
bottom-up process (in some cases because the 
clauses pre-date the process, or in the case of 
the RAA, were agreed to by negotiation) might be 
invalidated due to the new Article I wording.

>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.

AG: The specific question is whether the 
grandfathering that protects a current contract 
will also include its renewal. It is a simple 
question and presumably can be covered by careful 
wording of the Bylaw if the CCWG agrees that this is what we want.

>·      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.)

AG: We are in agreement here (except PICs 
post-date the application and must be covered).


>·      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.

AG: The question was not open ended. It covers 
whether renewal is or can be covered under the 
grandfathering, and whether we can have wording 
that covers the unsigned contracts.

>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.

AG: Yes, when the issue of the unsigned contracts 
was first brought up, come CCWG participants 
basically said Too bad - any new contacts will 
have to work by the new rules", and the proposal 
was silent on the issue, thus our concern.

>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.

AG: My concern is that if terms that under 
today's Bylaws cannot be challenged, that should 
not change. If current practice is outside of 
today's mission, it can be challenged today, and that is fine.

>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.

AG: No, the concern is that with the wording 
removed, ALL competition issues are outside of 
our mission and we may not even be allowed to ask 
the question or make the initial evaluation.

>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.

AG: I am afraid that we read Section 3 
differently. The references to, for instance, the 
public interest and international participation 
are wider in scope than the particular reviews 
(although the review do address aspects of these).

We (ALAC/At-Large) recently had an interaction 
with a senior compliance officer where it was 
claimed that consumer trust was not a significant 
concern (my wording), despite it being mentioned 
in the department's mission statement. That 
misunderstanding is in the process of being 
resolved, but it has made us particularly sensitive to the issue.

Is there a harm in referencing it in the Bylaws, 
as was done in an earlier draft of the CCWG Proposal?

Alan


>
>
>J. Beckwith Burr
>Neustar, Inc. / Deputy General Counsel & Chief Privacy Offic
>1775 Pennsylvania Avenue NW, Washington D.C. 20006
>Office: +1.202.533.2932  Mobile: +1.202.352.6367 
>/ <http://www.neustar.biz>neustar.biz
>_______________________________________________
>Accountability-Cross-Community mailing list
>Accountability-Cross-Community at icann.org
>https://mm.icann.org/mailman/listinfo/accountability-cross-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151218/4d2b8514/attachment.html>