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

[Alan Greenberg]

I generally accept this, but see embedded comments.

At 10/11/2015 05:58 PM, Burr, Becky 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):
>
>
>·     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.
>
>·     ICANN’s Mission is limited and enumerated.
>
>·     ICANN’s should act in accordance with, and 
>only as reasonably appropriate to achieve its Mission.
>
>·     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.
>
>·     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.
>
>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.
>
>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.
>
>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.

I support this, but given that we are adding that 
policy should be developed through a bottom up 
process, contracted parties should NOT be able to 
dispute parts of contracts that are not developed 
through a bottom-up process if those parts are 
not eligible for (as per Spec 1/4) for bottom-up Consensus Policy.



>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.

If it comforts anyone, I am happy to add a 
restriction that such content-related enforcement 
must not rely on ICANN to make judgement calls on 
such content and must rely on external 
authoritative agencies or mechanisms to make such judgements.


>Question:  Does the following formulation thread 
>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:  ICANN 
>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.
>
>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.
>
>
>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 
>/ <http://www.neustar.biz>neustar.biz
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