[CCWG-ACCT] Please review regarding IAB comments on Mission Statement

Sat Oct 31 23:41:53 UTC 2015

Why this may be important, is that judges have previously relied on the 
IANA contract with the US Department of Commerce to outline the 
authority under which the rules ICANN has put forward should be 
honoured  (See 
http://www.leagle.com/decision/In%20FDCO%2020150105808/STERN%20v.%20THE%20ISLAMIC%20REPUBLIC%20OF%20IRAN) 
[ NB I do NOT want to start any discussion about any country.  The case 
is relevant only for the Judge's rationale of authority]

Without the IANA contract, judges will continue to look for rationale's 
about ICANN's authority in making rules about the DNS on which they can 
rely.

That is why I am concerned that we do not weaken this.   I am not 
talking here about hard black letter/constitutional line of authority - 
the type about which Nigel is asking.   I am talking about having in 
place proclamations of expertise and 'real world' authority which allows 
judges to say "I am going to agree with ICANN's view of the DNS world".

I would note that there are over 200  decisions of US appellate courts 
which implicitly refer to ICANN is a way similar to the one I have 
mentioned above. (see: 
http://www.leagle.com/leaglesearch.html?allwords%3D%26exactphrase%3DICANN%26anyword%3D%26withoutword%3D%26qsearchsubmit%3D1)

Best

Paul

On 11/1/15 9:28 AM, Stephen Deerhake wrote:
> +1 to Nigel's remarks.
>
> As Nigel asks, can anyone within or outside of ICANN and the ICANN Community
> actually point to the underlying fundamental legal foundation that props all
> this up?
>
> Stephen Deerhake
>
> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Nigel
> Roberts
> Sent: Saturday, October 31, 2015 5:38 PM
> To: accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Please review regarding IAB comments on Mission
> Statement
>
> Paul makes some interesting tactical points.
>
> But can you point to ANY legal foundation where ICANN actually IS a "primary
> head of power"???
>
>
>
> On 10/31/2015 08:32 PM, Paul Twomey wrote:
>> Becky
>>
>> I think the points made by Malcolm and the IAB make a lot of sense when
>> viewed from the perspective of the engineering/technical community.
>>
>> But I would observe that the wording will interpreted with most impact
>> on daily work of the ICANN community not by non technical entities, but
>> particularly by the courts in various lands and the ongoing
>> international "politics of technology" processes.   When I look at the
>> proposed wording from that perspective, I worry that shifting to
>> "support" in the Mission statement could result in destabilising
>> uncertainty.   As we have seen in various litigation (to give only one
>> example, litigation about trying to get TLDs recognized as property
>> which the Courts can order moved from one party to another), the ability
>> for the Judge's not to have any doubt as to the primacy of the ICANN
>> (including community) role in determining the general rules/approach in
>> this area has been important.
>>
>> It could be destabilising if we leave the impression in the
>> politico/legal arena that ICANN only plays a supporting role, and that
>> they can go looking for another primary head of power.
>>
>> I admit I am writing this from something of a paranoid view, but then I
>> do have sympathy with Andy Grove's observation that only the paranoid
>> survive.
>>
>> I can also understand why the IAB questions the operational accuracy of
>> the use of the term "coordinates" in the opening sentence of the Mission
>> Statement as it now stands.
>>
>> Is there a way of getting a more robust term than just "support"?
>>
>> Paul
>>
>> Paul Twomey
>>
>> On 10/31/15 11:52 PM, Malcolm Hutty wrote:
>>> Becky,
>>>
>>> Thank you for bringing forward this proposal from the IAB.
>>>
>>> I think we should support the intent here. I do, however, have a concern
>>> about one aspect of the implementation.
>>>
>>> The main overall effect of this proposal, and I believe its intent, is
>>> to limit the statement of ICANN's Mission so that it more closely
>>> reflects what is empirically ICANN's role today.
>>>
>>> Existing text states that ICANN's Mission is to ""coordinate, at the
>>> overall level, the global Internet's system of unique identifiers", and
>>> then goes on to says that "In particular", ICANN does certain things
>>> regarding each of DNS, IP addresses and AS numbers, and protocol
> parameters.
>>> The proposed text states that ICANN's mission is to "support, at the
>>> overall level, core Internet registries".
>>>
>>> The change of verb, from "coordinate" to "support" seems to me to be a
>>> good change: ICANN supports DNS, IP addressing and protocol parameters
>>> in different ways, and the verb "co-ordinate" might wrongly suggest
>>> responsibilities for ICANN that it does not have. For example, ICANN
>>> does not in fact have change control authority over protocol parameters;
>>> that lies with the IETF, and ICANN's role is to publish registries of
>>> those parameters. Changing from "co-ordinate" to "support" more
>>> accurately reflects this.
>>>
>>> On the other hand, the change of object from "the global Internet's
>>> system of unique identifiers" to "core Internet registries" is a
>>> broadening of scope.
>>>
>>> I am not sure what the limits of the scope of "core Internet registries"
>>> is intended to be. Is a broadening of scope beyond the current text
>>> intentional? If so, I would like to know the rationale.
>>>
>>> We need to be aware that future technologies might result in the
>>> creation of new registries yet to be invented. I'm not sure we want
>>> those to be automatically invested in ICANN.
>>>
>>> Speaking as someone from the network operator community, it's not at all
>>> obvious to me that ICANN would necessarily be the obvious repository for
>>> some future registry that was used operationally (that is, one consulted
>>> in "run-time", as with the DNS or the global routing table, as opposed
>>> to one consulted at software design time, as with (most? all?) IETF
>>> protocol parameters). We might instead look to the Regional Internet
>>> Registries, or to some other entity or, as with the routing table, it
>>> might be distributed.
>>>
>>> Even if we did wish to invest ICANN with responsiblity for such a future
>>> registry, the nature of that responsibility might need to be carefully
>>> defined and limited, just has been done with DNS and with IP addresses.
>>> If we exclude such new registries from the scope of ICANN's Mission now,
>>> they could still be taken on later but to do so would require a
>>> Fundamental Bylaws change; such a process would give an opportunity for
>>> careful scrutiny and development of precisely what ICANN's role in
>>> relation to that registry ought to be. On the other hand, if we now
>>> decide that such a future registry is automatically ICANN's
>>> responsibility, then a very different process will determine how ICANN
>>> relates to it, a process that could result in ICANN undertaking a
>>> function for which there is no current analogy, and without requiring
>>> the positive consent of the community.
>>>
>>> In summary, before expanding ICANN's role beyond "the global Internet's
>>> system of unique identifiers", I think we should hear why that is
>>> needed, and carefully consider whether there might be inadvertent
>>> consequences. When we hear the rationale, it might be possible to
>>> accommodate it in other ways.
>>>
>>> If the rationale is nothing more than that the IETF fears that some of
>>> its protocol parameters registries could not be described as "globally
>>> unique identifiers", a more tailored solution is surely available. We
>>> could simply authorise ICANN to publish registries of protocol
>>> parameters when requested to do so by the IETF, or by protocol
>>> development bodies generally. That would be much simpler, and the
>>> opportunity for inadvertent consequences would be greatly reduced.
>>>
>>> Malcolm.
>>
>>
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-- 
Dr Paul Twomey
Managing Director
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