[CCWG-ACCT] Board comments on the Mission statement

[Malcolm Hutty]

On 21/11/2015 00:41, Bruce Tonkin wrote:
>>> • "Some existing registry agreements may be out of compliance
>>> with ICANN's responsibilities if this change is adopted": 
> [snip]
> I have asked the legal staff at ICANN to provide some examples.
> 
> Here is one that occurs to me though.   The current new gTLD registry
> agreements in Specification 5
> (http://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-09jan14-en.htm)
> have a provision that restrict the ability of a registrant to
> register a country or territory name, or names relating to the
> International Olympic Committee; International Red Cross and Red
> Crescent Movement.

I would say that the reservation of strings relating to the
International Olympic Committee, and to the International Red Cross and
Red Crescent Movement, is just special case of the same kind of policy
that is protected by the UDRP.

These policies are all designed to prevent domain names being registered
by persons who do not have the right to register that domain name,
because of existing rights in that domain name held by another.

For ICANN to have policies directed towards this goal is a legitimate
aspect of ICANN's mission to "preserve the... secure operation of the
[DNS]".

If the CCWG Report is adopted, it will be clearly stated for the first
time that preserving the secure operation of the DNS is part of ICANN's
Mission; at the moment, that is only a "core value" that should "guide
the decisions and actions of ICANN". So I think our report would makes
this more clearly authorised than the existing bylaws do.

> These are examples of content in domain names that have some
> restrictions.   There are no technical or security reasons for such
> restrictions.   The restrictions have been put in place on the basis
> of "public policy" advice from the GAC.

I would be careful about saying that there are no "technical or security
reasons"; as above, you may find that on more careful examination that
there are.

You may also find, on closer examination, that actions ICANN has taken
in response to public policy advice from the GAC can be entirely
justified as being within the scope of ICANN's Mission. If "Action 1"
and "Action 2" are alternative possible actions, and both are within
legitimate options within the scope of ICANN's Mission, then it is
entirely legitimate for ICANN to choose between them on the basis of
public policy advice from the GAC.

However, if Action 1 is something that is otherwise prohibited to ICANN,
then GAC advice that it should perform "Action 1" does not legitimise
that action. Do you not agree?

Reading the Board's message, and yours, I do get a sense that you worry
that ICANN may have in the past taken actions for which no legitimate
justification could be found within the existing Mission. Perhaps I am
misreading that. If so, I doubt that the problem is as extensive as you
seem to fear; it may be simply that the inadequacy of the existing
accountability measures have meant that ICANN has never felt the need to
clearly examine the legitimacy of its actions, and has proceeded simply
on "gut feel", but that when past actions are carefully examined, it
will be shown that that "gut feel" as to what is authorised was usually
correct.

That said, should it be discovered that in the past ICANN truly has
exceeded its legitimate authority in particular cases, then that would
merely demonstrate the urgency and vital necessity of introducing clear
and effective mechanisms to avoid such abuses in the future.

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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