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

[Alan Greenberg]

David, there are several issues here.

PICs were not developed through a bottom-up process, although they 
were subject to comment processes at various times.

However, PICs are documented in Spec 11 of the registry 
agreements.  Spec 1 is the explicit list of what topics can be the 
subject of a GNSO PDP, and for whatever reason (you can attribute it 
to incompetence or conspiracy), PIC are not in the list.

My worry is that PICs, or virtually any part of a contract might be 
able to be struck down by and IRP because they were not developed in 
a bottom-up MS process, but there is no way to use the bottom-up MS 
process to replace them.

Alan

At 12/11/2015 10:26 AM, David Post wrote:
>Alan - I'm not clear what you mean when you say that
>
>>>AG:- 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"?
>
>Do you mean that the insertion of the PICs in Spec 1 was not 
>developed by a consensus process ( I would agree )?  Or that under 
>the current language of the proposal, the insertion of the PICs is 
>the kind of action that ICANN would be permitted to take without it 
>being subject to the consensus process (I don't think I agree )?
>
>David
>
>
>At 07:54 AM 11/12/2015, Alan Greenberg 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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>
>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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