[CCWG-ACCT] ICANN doesn't "allocate" or "assign" beyond the root (was Re: CCWG - Proposed Responses to questions on Draft Bylaws)

[Andrew Sullivan]

Hi,

On Mon, Apr 11, 2016 at 02:45:21AM +0000, Mueller, Milton L wrote:
> 
> I would have to add, however, that even the contractual requirements it imposes on registries are limited by its mission, which is to coordinate the global DNS name space. ICANN could not, I hope you agree, put into a registry contract that the registry operator must steal Andrew Sullivan's fedora whenever he is seen wearing it. Just to use a random example.
> 

I agree with this, but I'd go a little further.

Part of the point of restricting this to the root zone and thereby to
ICANN and those who have direct contractual relationships with ICANN
is to ensure that the contractual relationships are likely to be fit
to that purpose.

For instance, suppose that the RAA were under renegotiation and
someone wanted to add a clause to the effect, "No delegations are
allowed below delegations made from names delegated to any registry."
I don't have a hard time imagining such a rule proposal, because it'd
probably be intended to prevent more so-called "public suffixes" lower
in the DNS tree.  Yet under the same policy, it would not be possible
for it.example.com and jp.example.com and us.example.com to be
different delegations (in the DNS sense of the word) to different
operating departments of the example.com corporation.  I think people
would be justifiably outraged, and might even have legal recourse,
because this would really be an extra-contractual claim that ICANN was
making (i.e. it would be a way of ICANN directly affecting the
interests of parties with whom it has no direct agreement).  It would
certainly be contrary to the limited Mission.

The current bylaw language quite clearly says not only that ICANN can
make such a rule, but that making rules of this sort is part of
ICANN's mission.  By restricting the policy making throughout the tree
to the contractual relationships ICANN actually has, we stop making
this about where in the DNS the name appears and turn it into a normal
contractual obligation.  This gets away from the notion of
ICANN-as-regulator.

Best regards,

A


-- 
Andrew Sullivan
ajs at anvilwalrusden.com