[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Wed Nov 11 05:03:33 UTC 2015

Responding first to Becky's original email.....

Comments inline.

Greg

On Tue, Nov 10, 2015 at 5:58 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> Please read all the way through to the bottom for a question and proposal.
>
> Based on our discussion this morning, I believe that the following
> statements reflect the consensus of the CCWG (lack of “full consensus” on
> 1 point noted in text):
>

GS: I think it's premature (at best) to call consensus (much less full
consensus) on a number of these topics.  We begin well but go downhill
after that

>
>
> ·     ICANN’s Mission with respect to names is described in the Mission
> Statement as follows:  With respect to NAMES, ICANN’s Mission is to
> coordinate the allocation and assignment of names in the root zone of the
> Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate
> the development and implementation of policies: (I)For which uniform or
> coordinated resolution is reasonably necessary to facilitate the openness,
> interoperability, resilience, security and/or stability of the DNS; and
> (ii) 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.
>
I can agree with that.

> ·     ICANN’s Mission is limited and enumerated.
>
I can agree with that.

> ·     ICANN’s should act in accordance with, and only as reasonably
> appropriate to achieve its Mission.
>
I can agree with that.

> ·     Coordinating development, implementation, and enforcement of
> Consensus Policy, as defined by Specification 1 of the New gTLD Registry
> Agreement and Specification 4 of the 2013 Registrar Accreditation
> Agreement, is within ICANN’s Mission.
>
I can agree with that.

> ·     ICANN should have the authority to enforce agreements with
> contracted parties, subject to established means of community input on
> those agreements and reasonable checks and balances on its ability to
> impose obligations exceeding ICANN’s Mission on such parties.
>
I can agree up to the comma.  After that, it gets less clear.  If the
"established means of community input" are public comments on form
contracts during their development, I can agree with that.  Indeed, I think
there should be more "community input" when contracts are being developed.
If it refers to some form of community input after the agreements have been
signed, I'm less sure about that (especially as something to be baked into
a Bylaw).  I would note that both Malcolm and I crossed out the language
after the first comma in the chart you circulated, so it's hard to say
there's consensus on that part of the sentence.

> o   To the extent that registry operators voluntarily assume obligations
> with respect to registry operations as part of the application process,
> ICANN should have the authority to enforce those commitments.
>
>   *NOTE:  There is not “full consensus” on this position*.
>
The lack of "full consensus" (and almost certainly lack of consensus)
probably goes in two different directions, those who think this goes too
far, and those that think this isn't going far enough.  If these
obligations are in contracts, registry operators are obligated to comply
with them.  As with each and every obligation in ICANN's agreements, the
parties (both ICANN and the contracted party) must comply with their
obligations, they are in breach if they don't do so, and the non-breaching
party should take the necessary steps to get the other party to comply.

> o   In general, consistent with ordinary contract concepts, registries and
> registrars should be presumed to have agreed to the terms and conditions of
> any contract with ICANN.
>
I think that phrasing this merely as a presumption is too weak.
 Contracts are obligations of the contracting parties, not merely presumed
obligations.  Creating a special version of contract law just for ICANN is
dangerous, and I can't agree with that.  So no agreement here, though
getting rid of the "wiggle words" would change that.  We could say that
ICANN can only enforce those parts of its contracts that the
counter-parties say are enforceable, but that would be utterly bizarre.

> *That said*, there should be some mechanism whereby contracted parties
> can enter into such agreements without waiving their rights to challenge
> specified provisions of such an agreement on the grounds that they exceed
> the scope of ICANN’s Mission.  Any such mechanism would have to provide
> adequate notice, needs to be developed, etc.
>
> It's quite interesting to see the CCWG being used as a factory in which
to construct a machine to challenge provisions of registry and registrar
agreements that some may not like.  First, we have bylaws changes to the
Mission primarily phrased as prohibitions rather than positive missions
statements, designed to form a basis for a challenge; then we have a
statement supporting an affirmative right for contracted parties (and for
some, any "aggrieved party") to challenge their contracts, after that we
have the foundation for a mechanism where this right can be exercised.  All
under the banner of enhancing ICANN's accountability.  I'm becoming less
convinced that this is about accountability, and more concerned that this
is just a tool in a campaign to renegotiate ICANN's contract, with a
playing prepared for the needs of one set of parties.  All being done at a
level of abstraction where the real controversies are not quite apparent,
or at least are not typically discussed.

>
> *We do not appear to have consensus on the following concept*:  *Without
> in any way limiting the foregoing absolute prohibition, ICANN shall not
> regulate services that use the Internet's unique identifiers, or the
> content that such services carry or provide.*
>
It all depends on what one thinks "regulation" is and (to a lesser extent)
what the "services" are, and whether this prohibition is limited in any
way. Contracting? Consensus Policy?

>
> *Question:  Does the following formulation t*hread the needle between
> those who say that ICANN should not use its contracting authority to
> regulate registrant behavior and those who point out that the Registrar
> Accreditation Agreement, for example, requires registrants to provide
> accurate and up-to-date WHOIS data:  *I**CANN should not use its
> authority to enter into contracts with registries and registrars to impose
> obligations and limitations on registrants with respect to issues that are
> not properly the subject of Consensus Policy.*
>
This seems even narrower than prior propositions where the limitation was
ICANN's Mission. It should be clear that Consensus Policy is within
ICANN's Mission, but ICANN's Mission goes beyond Consensus Policy.  And in
terms of abstraction, "issues that are not properly the subject of
Consensus Policy" is pretty darn abstract.  It's not something that is
clear on its face, to say the least.  It would be instructive to pull out
the RA and RAA and see which provisions if any would effectively be
nullified by this Bylaw.  Depending on what we do here, we may need to
change the statement in the Executive Summary that the CCWG is not
proposing any changes in the way ICANN conducts day-to-day operations.  I
would say that using Bylaws to rewrite ICANN's contracts is a significant
change in how ICANN does business, and not a particularly good use of
Bylaws or the CCWG.

Frankly, the efforts here to resolve (or tilt the playing field to resolve)
a particular controversy are probably misplaced in the CCWG and
particularly in the Bylaws.  But that seems to be where we are and what we
(or at least, some of us) are trying to do....

>
> *PROPOSAL*:   If so, I propose that the CCWG provide the text above as
> guidance for the final bylaws drafters in interpreting the admonition that "ICANN
> shall act strictly in accordance with, and only as reasonably appropriate
> to achieve its Mission.”  I believe this would (1) eliminate concerns and
> ambiguity regarding use of the word “regulation,”; (2) reflect consensus on
> the principles; and (3) address the late change/legislative
> history/statutory construction concern raised by Paul R. and others.
>
>
Unfortunately, I don't think it does any of the above, at least not at
this point.  I'm open to continued discussion, as my goal (as always) is to
try and find solutions which nobody may think are perfect, but which
everybody can find acceptable.

However, I'm concerned this is a step backwards from consensus, not
towards it.

Greg

>
>
> *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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