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

[Andrew Sullivan]

Hi,

Insert my standard disclaimer here :)

On Wed, Nov 11, 2015 at 02:10:17AM +0000, Burr, Becky wrote:

> 1. Do you agree or disagree with the following statement: "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.²

I think there's an important part of that statement, and that is the
voluntary assumption part.  I think I agree with the above statement,
but I want to say something slightly more.

There are really two different cases we're talking about here.  One of
them is like the new gTLD case where a registry invents a bunch of
special rules that it says it will use in deciding whether it will
undertake delegation.  It enshrines those commitments in its agreement
with ICANN, and ICANN's delegation of the name from the root zone is
predicated on those commitments.  It seems to me there are three
separable issues (for our purposes) here:

    1.  Should ICANN be able to enforce such contractual obligations
    under its mission?

    2.  Should ICANN make decisions about what to delegate on the
    basis of such commitments?

    3.  Should ICANN be able to use its power over the delegation from
    the root to force additional terms about how TLDs will operate on
    the TLD operators, beyond the narrow security and stability rules
    that are already in place (or substantially similar ones emerging
    from new technical developments)?

I am convinced, unambiguously, that the answer to (1) must be, "Yes."
ICANN is a party to an agreement, and if the other party does not hold
up its end of the bargain ICANN needs to be able to take the
enforcement actions appropriate.  I think that this ability is
entirely consistent with the short formulation you (Becky) proposed a
little while ago, but of course I am lamentably not a lawyer.

I am convinced, unambiguously, that the answer to (3) must be, "No."
I think just about everyone in this discussion who agrees with the
"narrow mandate" approach would be worried about this case.  I think
that this prohibition would be made by the short formulation you
(Becky) proposed, but I'm not a lawyer in this paragraph either.

The answer to (2) is perhaps what we are having trouble with.  Some
people think that ICANN shouldn't be in the business of supporting,
creating, or enforcing different registration and delegation rules in
different registries.  But clearly it has done so in the last gTLD
round.  It seems to me that this case is, however, in part mitigated
by competition.  That is, yes, ICANN is implicitly taking on a role of
upper-level enforcer of registry policies when it grants delegations
on the basis of those policies.  I confess that, were I ICANN, I would
avoid those kinds of entanglements like the plague; but we've already
unleashed this fact onto the world by delegating all those new TLDs
with all those new covenants.  Having made such a fact, it's hard for
me to see how we could unmake it.  Moreover, with well over a thousand
TLDs to choose from, there's an easy solution for registrants who do
not want the meddling: don't register a name in those domains.  I
think that this issue is one that is genuinely open to disagreement
under the mission.  I think that's ok: the mission cannot possibly be
a way for the community to foreordain all future choices by ICANN, or
we wouldnt need an ICANN.  It could be replaced by a small shell
script.  This sort of disagreement would have to be worked out in the
ICANN tussle.

> 2. Do you agree or disagree with the following statement: "ICANN shall not
> regulate services that use the Internet's unique identifiers, or the
> content that such services carry or provide.²  - Wherever you land, please
> explain what you mean by ³regulate² and ³services."

If "regulate" means the kind of imposition in (3) above, then I agree
with this.  ("Services" are "that which an operator makes available at
a named location", which is hardly more enlightening.)  If "regulate"
means the enforcement under (2) or the ability of ICANN to undertake
agreements with particular registries under (2), then I suppose I feel
some inner conflict about it.

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com