[CCWG-ACCT] Mission/Contract

[Malcolm Hutty]

On 10/11/2015 12:25, Andrew Sullivan wrote:
>>
>> 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.  

You answer your own question.

If someone has contracted with ICANN to do something, ICANN can insist
upon it. It may sue if necessary, but usually this won't be necessary
because it will be obvious that if it does it will win.

ICANN should be prevented from entering into an agreement whose purpose
is to achieve something that it is outside ICANN's Mission to seek to
achieve. If we say otherwise, and allow ICANN to do anything

> 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.

Andrew, I think you have misunderstood what is being proposed by those
who disagree with me.

What our colleagues are proposing is to override this clause. They are
saying that ICANN should be able to do anything allowed by the above,
*plus also* to enter into and enforce agreements that go far outside
what is allowed by the above.

So if a Registry offers to promise that the CEO will greet Fadi every
Monday morning by tapdancing in Fadi's office, then they say ICANN
should be permitted to enter into that contract and enforce it, provided
only that the Registry's offer was made "voluntarily" (whatever that
means in practice.

> 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.

These agreements are in addition to consensus-based bottom-up policy.


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            Malcolm Hutty | tel: +44 20 7645 3523
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