[CCWG-ACCT] Implications of bottom-up "policy" requirement

[Greg Shatan]

This is clearly a "gotcha" type of provision, intended to form the basis of
future challenges to policies (however defined) that the challengers
oppose. It's also a statement of general principles, and to that latter
extent, it's a Good Thing.

I think the Bylaws have been seeded with such "land mines" and they can be
used for noble purposes or less noble purposes. But they will be used in
the newly expanded IRP and in the process of trying to use the  Community
Powers, and even in various PDPs.

Over the coming years, it will be revealed just how many such land mines
there are (and maybe even who placed them there and the particular purposes
for which they were put in place) when they are activated.

It's relatively easy for this to have happened in our Bylaws discussions,
where the proposed language and the discussions about that
language  are quite abstract and we have been working rapidly.  To some
extent, Stress Tests reveal these, but the Stress Tests are relatively few
and have been drafted to support the changes, so in that sense they are of
limited value.

It would be naive to believe this did not happen. Unfortunately.

Greg

On Thursday, November 12, 2015, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:

> I am increasingly becoming uneasy with the implications of several of our
> proposed changes/powers. I would be happy to be convinced that I am missing
> something and there is no need to be concerned.
>
> The particular interaction that I am thinking of is:
>
> - the new requirement that "policies" be developed through a bottom-up
> multistakeholder process;
>
> - the fact that we never really define "policy" and therefore what is a
> policy is subject to interpretation;
>
> - we have contracts which are made up of a combination of historical
> language, negotiated terms, Consensus Policy and yes, terms which at some
> point in time may have been included through more arcane processes;
>
> - some issues which could reasonably considered "policy", such as PICs in
> registry agreements, according to the Registry agreement Spec 1, are NOT
> SUBJECT to Consensus Policy;
>
> - most contractual provisions are also outside of the limited subjects in
> Spec 1 (Registry) / Spec 4 (Registrar);
>
> - The IRP which can judge something to be outside of ICANN's mission;
>
> When you put these together, we have the situation that an IRP could judge
> that some contractual provision is "policy", was not developed through a
> bottom-up MS process, and therefore violates the Bylaws. Yet such terms are
> not eligible for a bottom-up MS process, or predate such processes.
>
> I find this EXTREMELY problematic.
>
> Alan
>
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