[CCWG-ACCT] Implications of bottom-up "policy" requirement
David Post
Postd at erols.com
Fri Nov 13 15:48:57 UTC 2015
At 09:45 AM 11/13/2015, Alan Greenberg wrote:
>I would like to propose a solution to this problem.
>
>The current proposal is that policies (without
>being specific) be developed by a bottom-up MS process.
>
>I suggest that we replace "policy' by "Consensus
>Policy". This is a term already used in the
>Bylaws and is applicable to both the Registry and Registrar contracts.
>
>If, as my original scenario envisions, that such
>a policy is struck down, then it may be
>re-crafted (or not!) using the established By-Law mandated processes.
Alan
Can you clarify what you mean when you propose
replacing "policy" with "Consensus Policy"? Just
substituting the words "Consensus Policy" for
"policy" in the proposal language looks like this:
"ICANN’s Mission is to coordinate the development
and implementation of Consensus Policies: • For
which uniform or coordinated resolution is
reasonably necessary to facilitate the openness,
interoperability, resilience, security and/or
stability: • That are developed through a
bottom-up, consensus-based multistakeholder
process and designed to ensure the stable and
secure operation of the Internet’s unique names system."
Is that what you're proposing?
David
>At 12/11/2015 04:38 PM, Burr, Becky wrote:
>>But why isn¡¯t the answer that it is a part of a non-policy provision of a
>>commercial contract entered into in furtherance of ICANN¡¯s 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, 1:23 PM, "Alan Greenberg" <alan.greenberg at mcgill.ca> wrote:
>>
>> >Of course contracts are not policies. But
>> >contracts contain provisions based on policies.
>> >Stress tests 29 and 30 explicitly makes reference
>> >to an IRP challenge could asserting that a
>> >contract provision was not developed by consensus.
>> >
>> >If the mission statement addition said that
>> >Consensus Policy must be developed by a bottom-up
>> >MS process, that would be fine. But it simply
>> >says "policies", an undefined and rather vague term.
>> >
>> >Alan
>> >
>> >At 12/11/2015 03:29 PM, Burr, Becky wrote:
>> >>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 ©øin furtherance of its mission"
>> >>
>> >>
>> >>J. Beckwith Burr
>> >>Neustar, Inc. / Deputymply says "policies"
>> >>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
>> >> >>>
>> >> >>>_______________________________________________
>> >> >>>Accountability-Cross-Community mailing list
>> >> >>>Accountability-Cross-Community at icann.org
>> >>
>> >>>>>https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mail
>> >>>>>ma
>> >>
>> >>>>>n_listinfo_accountability-2Dcross-2Dcommunity&d=CwICAg&c=MOptNlVtIETeD
>> >>>>>AL
>> >>
>> >>>>>C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=He0ZyGdJIDc7wz
>> >>>>>sd
>> >>
>> >>>>>IRdFvJnAm7THjsagVk801BeQ4hE&s=HtbFOYAAV7l0jaMecsuB8Y11DrNFSMO6Xc4C4cNB
>> >>>>>TJ
>> >> >>>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
>> >>
>> >>>>m_people_david-2Dpost&d=CwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_
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>> >>>>4h
>> >> >>E&s=Du760LWuQaX9-Rtg6INi7M4U1UdOwceKgmo_8WTqEXo&e=
>> >> >>book (Jefferson's Moose)
>> >>
>> >>>>https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n
>> >>>>&d
>> >>
>> >>>>=CwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W
>> >>>>DD
>> >>
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>> >>>>xm
>> >> >>2sdw-N8-55AfqtvPzjbBsU_s&e=
>> >> >>music
>> >>
>> >>>>https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpo
>> >>>>st
>> >>
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>> >>>>Ya
>> >>
>> >>>>hOP8WDDkMr4k&m=He0ZyGdJIDc7wzsdIRdFvJnAm7THjsagVk801BeQ4hE&s=k3sxcCisSp
>> >>>>zv
>> >> >>xkzLursRJem4WqQn3W-AAl8g9Du1glw&e= publications
>> >> >>etc.
>> >>
>> >>>>https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d
>> >>>>=C
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>> >>>>Zm
>> >> >>gJTXXeioI4XPsyNyxfuSZM&e=
>> >> >>*******************************
>> >> >
>> >> >_______________________________________________
>> >> >Accountability-Cross-Community mailing list
>> >> >Accountability-Cross-Community at icann.org
>> >>
>> >>>https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma
>> >>>n_
>> >>
>> >>>listinfo_accountability-2Dcross-2Dcommunity&d=CwICAg&c=MOptNlVtIETeDALC_
>> >>>lU
>> >>
>> >>>Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=He0ZyGdJIDc7wzsdIRdF
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>> >
*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose) http://tinyurl.com/c327w2n
music http://tinyurl.com/davidpostmusic
publications etc. http://www.davidpost.com
*******************************
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