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

[Burr, Becky]

With all due respect - contracts are NOT policies.  Contracts reflect
policies, and they contain limits on what ICANN can impose unilaterally on
contracted parties.  But contracts with registries and registrars contain
lots of mutually agreed commercial terms and conditions that are NOT
policy.  That is why ICANN must be able to enter into and enforce
contracts ³in furtherance of its mission"


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>




On 11/12/15, 9:51 AM, "Alan Greenberg" <alan.greenberg at mcgill.ca> wrote:

>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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>>>8&e= 
>>
>>*******************************
>>David G Post - Senior Fellow, Open Technology Institute/New America
>>Foundation
>>blog (Volokh Conspiracy)
>>https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.co
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>>https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d=C
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>>*******************************
>
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