[CCWG-ACCT] Mission/Contract

[Andrew Sullivan]

Hi,

(following the CCWG meeting with interest.)

On Tue, Nov 10, 2015 at 10:12:07AM +0000, Malcolm Hutty wrote:
> Great, so we're in agreement about the underlying aim here.

I think we are in strong agreement that ICANN's job is not to be the
Internet Police, yes.  For whatever it's worth, I don't know a single
Board or staff member who wants that job, either, so the question is
really just how to ensure ICANN's mission is appropriately tight.

> I'm afraid your assumption that "the only option ICANN would have would
> be to remove the delegation from the root zone."
> 
> If ICANN were to attempt the regulation of the content of web sites, the
> means by which it would do so would be
> 
> i) to write into Registry agreements a duty to ensure that that content
> does not appear, and to take enforcement actions if it does; and
> ii) in the event that the Registry fails to enforce the prohibition of
> certain content, to enforce its contract against the Registry
> 
> This can be done without removing the delegation from the root zone.

How?  ICANN has basically two sticks at its disposal: it can sue
people, or it can remove the delegation.  Apart from that, it's hard
to see what force ICANN has to bring to bear.  But I think that's a
distraction, because I reject the premise that ICANN would be in a
position to write those terms into the agreements in the first place,
because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms:

        • For which uniform or coordinated resolution is reasonably
          necessary to facilitate the openness, interoperability,
          resilience, security and/or stability:
        • That are developed through a bottom-up, consensus-based
          multi- stakeholder process and designed to ensure the stable
          and secure operation of the Internet’s unique names systems.

It seems to me that it would be hard to argue ICANN could impose the
terms this way, because they wouldn't be consensus-based or bottom-up.
I'd go futher and suggest that such policies would not be designed to
ensure stable and secure operation, either; neither would they be
reasonably necessary for openness, interoperability, resilience,
security, or stability.  So I think the basis for rejecting such
overreach is already in the mission text we all seem to like.

> I hope this clarifies why we think that the prohibition is necessary.

It does, but I'm not convinced by the premise.  Again, however, I
haven't been around this many times and it's strictly speaking not the
issue I'm here to contribute on, so I won't say more about it.  But
for me, the narrowness of the reworded mission rewards us with many
benefits, and I think the "regulator" case is one of them.

> Any references to taking a long walk will be addressed only to your
> argument :-)

I should hope that will ever be true!

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com