[CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement
david.g.post at gmail.com
Fri Feb 5 01:38:58 UTC 2016
I do as well -
At 05:08 PM 2/4/2016, Robin Gross wrote:
>I agree with Malcolm's points.
> > On Feb 4, 2016, at 12:27 AM, Malcolm Hutty <malcolm at linx.net> wrote:
> > On 04/02/2016 07:38, Bruce Tonkin wrote:
> >> (b) ICANN shall have the ability to negotiate, enter into and
> >> enforce agreements with contracted parties in service of its Mission,
> >> including PIC Specifications.
> > It's a small point, but I think the word order is wrong here.
> > As written, this would add anything in a PIC Specification to ICANN's
> > Mission. Amongst other problems, this would be in direct conflict with
> > the Board's own view that the Mission should not be defined by the terms
> > of external documents.
> > I would therefore suggest the following adjustment:
> > (b) ICANN shall have the ability to negotiate, enter into and
> > enforce agreements with contracted parties (including PIC
> > Specifications) in service of its Mission.
> > Is that agreeable?
> >> The drafting of the bylaws related to these principles will need to take
> >> into account the comments that the Board has previously expressed around
> >> use of terms such as "regulations", when ICANN is not a regulator, and
> > [...]
> >> It is inappropriate to include within ICANN's mission a
> >> prohibition on regulation, when ICANN is not a regulator.
> > I'm really not too bothered about terminology. Semantic quibbling over
> > whether ICANN "is a regulator" is beside the point. The intent of this
> > provision is to prevent ICANN from trying to use its power "at the top
> > of the DNS tree" to control people "further down the tree" (as Andrew
> > puts it) in ways that have no connection to ICANN's Mission.
> > Whether you call that "regulation" or come up with some other term
> > doesn't matter: it's still an abuse of ICANN's position, and must be
> > prevented.
> >> Rationale on Grandfathering:
> > [...]
> >> The Board does not agree with the inference, and it does
> >> not benefit ICANN or the ICANN community to suggest, that ICANN has
> >> previously entered into contracts that go beyond its mission.
> > We are not "suggesting" that. We are catering for the possibility that
> > you might be alleged to have exceeded the Mission in the period when you
> > could not effectively be held accountable for that by immunising you
> > from challenge for actions taken during that period - while ensuring
> > that you can be held accountable for any future such violations.
> > This is a middle ground compromise between two positions
> > i) to ensure that the new accountability provisions could be used to
> > hold you accountable for previous violations as well as future ones; or
> > ii) (this compromise) to ensure that the new accountability provisions
> > can be used to hold you accountable for new violations, but not for any
> > that might have been committed in the past; or
> > iii) to ensure that you can never held accountable for any such
> > violations, past or future.
> > I can see why the first option might be thought better than our
> > compromise, but we have decided to prefer stability over purity. The
> > third option we were surely correct to rule out; it is simply
> > inconsistent with the fundamental premise of this entire accountability
> > exercise.
> > If you ask us to take out the grandfathering provision, that will leave
> > us with the first option. I don't think you want us to do that.
> > Malcolm.
> > --
> > Malcolm Hutty | tel: +44 20 7645 3523
> > Head of Public Affairs | Read the LINX Public Affairs blog
> > London Internet Exchange | http://publicaffairs.linx.net/
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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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