[CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement

[Burr, Becky]

I have to admit that I am a little confused about the Board’s comments on grandfathering.  This was done to respond to the GAC and the ALAC who asked for “assurances” that the existing contracts, including PICs, could be enforced.  I don’t see how the commentary on grandfathering introduces uncertainty, but I – personally – don’t object to taking it out.  I suspect, however, that others will.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: Finn Petersen <FinPet at erst.dk<mailto:FinPet at erst.dk>>
Date: Thursday, February 4, 2016 at 5:35 AM
To: Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au>>, Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement

Dear Bruce,

Thank you for the comments to Rec 5.

DK agrees with the Boards comments and have no problem with the proposed slight modification made by Malcolm.

As to “Grandfathering” you have rightly pointed out that   “CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN’s mission”. Therefore “Grandfathering” will only give raise to legal uncertainty, which we should not introduce in the CCWG-proposal.

Best,

Finn

Kind regards

Finn Petersen
Director of International ICT Relations

DANISH BUSINESS AUTHORITY

Dahlerups Pakhus
Langelinie Allé 17
DK-2100 København Ø
Telephone: +45 3529 1000
Direct: +45 3529 1013
Mobile: +45 2072 7131
E-mail: FinPet at erst.dk<mailto:FinPet at erst.dk>
www.erhvervsstyrelsen.dk

MINISTRY FOR BUSINESS AND GROWTH

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Fra: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] På vegne af Bruce Tonkin
Sendt: 4. februar 2016 08:38
Til: CCWG-Accountability
Emne: [CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement

Hello All,

Recommendation 5 - Mission Statement

On the mission statement, the Board supports the core principles that:

(a)      ICANN shall not impose regulations on services that use the Internet’s unique identifiers, or the content that such services carry or provide.

(b)     ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications.

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 the exact definitions of terms such as “services”, so as not to exclude services such as domain name registration and domain name registry services.    It is inappropriate to include within ICANN’s mission a prohibition on regulation, when ICANN is not a regulator.

We remain concerned about the grandfathering discussion and the potential limitations to ICANN’s contracting and enforcement abilities.


Rationale on Grandfathering:

The Board’s concerns with the recommendation to include “grandfathering” language within ICANN’s Mission remain.  These concerns exist notwithstanding the words used to describe the concept of “grandfathering”.  First, as the CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN’s mission.  To this end, any suggestion that ICANN’s contracting ability with registries and registrars will be changed as a result of the CCWG-Accountability’s work is inconsistent and troublesome.  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.  This introduces uncertainty and instability into ICANN’s work.

Second, grandfathering – no matter when the CCWG-Accountability wishes to impose a cut off – could result in inconsistent contracting among different parties and raises the question of unequal treatment among contracted parties.

Finally, the uncertainty around the concept of grandfathering, and the level of detail needed to try to address that uncertainty, has carried the CCWG-Accountability beyond the clarification of ICANN’s mission that was anticipated as part of this WS1 transition work.  This level of detail is beyond the scope of ICANN’s readiness for the transition, and creates opportunities for vagueness and challenge that could be introduced into ICANN’s contracts.

The Board understands that one of the concerns driving this discussion is a confirmation that the PICs would remain enforceable.  As a result, the Board proposes that a reference to the viability of the PICs be added to the proposition “ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications.”

Regards,

Bruce Tonkin

ICANN Board Liaison to the CCWG

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