[CCWG-ACCT] Board comments on the Mission statement

[Malcolm Hutty]

On 23/11/2015 21:18, Burr, Becky wrote:
> Beyond that, the language of 3.18 in question imposes obligations on
> /registrars/ – maintain an abuse point of contact, investigate
> allegations regarding illegal activities, take appropriate action, so I
> don’t think that amounts to regulating registrants.  I also agree that
> there are situations in which illegal activity could impact the
> stability and security of the Internet’s unique identifiers (e.g.,
> particularly involving malicious DNS exploits, etc.), so the provision
> seems to me to be appropriate in furtherance of ICANN’s Mission.

I agree with this analysis, and a fortiori it doesn't amount to
regulating the Internet services (as defined) that registrants run,
which is actually what the text on the table would prohibit.

I think we're rather forgetting how this text will be used: it will be
for the Board to interpret it, and (if there is a challenge on a
particular issue) for the IRP to rule as to whether ICANN has acted
outside the authorised scope of its Mission.

The cloud of obfuscations in this thread simply don't amount to a
credible concern with this text; they only go to show that the authors
are incapable of applying systematic analysis to Bylaws language. The
IRP, by contrast, will certainly make a clear distinction between
obligations imposed on registrars and those imposed on registrants,
between obligations that aim to constrain the content on a web site and
those that don't implicate such content. At least, if the IRP panel is
incapable of making such basic distinctions, the entire system of
governance is doomed.

Given the above explanation of why 3.18 is permissible, it is surely
completely fanciful to suggest that the Board would drop 3.18, or that
the IRP would tell the Board that enforcing is 3.18 is ultra vires.

Malcolm.

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            Malcolm Hutty | tel: +44 20 7645 3523
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