[CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws

Wed Jan 13 21:05:55 UTC 2016

My point remains – we have a significant and strongly held disagreement about the scope of ICANN’s consumer trust role under the AoC.  We should implement what we do agree about consistent with the 2nd and 3rd draft proposal – that ICANN must pay attention to this through a specific review in connection with gTLD expansion (as required in section 9.3) - and talk about the stuff we don’t agree about (the broader than gTLD expansion context) in WS2.

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: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Wednesday, January 13, 2016 at 3:47 PM
To: Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Cc: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, "avri at acm.org<mailto:avri at acm.org>" <avri at acm.org<mailto:avri at acm.org>>, Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws

I don't think this is an issue of "making the new gTLD obligation wider."

The issue is whether Section 3 of the AoC represents a set of commitments in and of itself, or just acts as a sort of chapeau to section 9.

I think Section 3 does represent a set of commitments that need to be carried forward into the Bylaws.  If they are discarded, that is an affirmative decision to narrow the affirmation of commitments.

I note that Section 9 has its own chapeau, and doesn't need a chapeau on top of that.

Section 9 is a commitment to conduct reviews, but reviews need to be based on an underlying set of commitments.  You don't review for something you have not committed to, and Section 9 does not contain a commitment to any principles, just to conducting reviews to see if those principles are being honored or not.  So the commitment must be elsewhere, and that place is Section 3.

Section 3 is not unbounded.  It is limited to the "DNS marketplace."

It's not clear how ICANN itself has viewed this commitment.  However, I found an AoC tracking chart that ICANN maintained for some time to be quite relevant in this regard.  It's no longer in use but still can be found at https://aoctracking.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__aoctracking.icann.org_&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=_sk0TAvnXT5WoOeM62TdtAkr6i6G7wkLYsnCBF9ntxQ&s=nD7c5GPqs3tA4g6Fo2leeNIrcFaZYlyEljMgmoBk-fI&e=>.  It's clear from the way that chart is set up and completed that Section 3 is viewed as a set of commitments that stand on their own.

I guess that means I agree (in broad strokes) with Avri.

Greg

On Wed, Jan 13, 2016 at 2:34 PM, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:
I agree with Becky. I've watched this debate with a little bit of astonishment, to be honest: I share the view that everyone's arguing in good faith, but I can't see how the new gTLD obligation can be made wider.

Certainly from a ccTLD perspective, the idea that ICANN could have any role here is just not viable. It isn't ICANN's role, it is the role or responsibility of each ccTLD manager in their own ccTLD.

So it seems to me that if people want to try and expand ICANN's remit to intervene in ccTLD matters, that's a non-starter.

Why not leave the commitment as it is at the moment, on the new gTLDs, and move ahead and help close this project?

cheers
Jordan

On 14 January 2016 at 08:01, Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>> wrote:
Come on Avri - I could say that we don’t have sufficient cause - let alone
authority - to amend the AoC, but I don’t think that moves the ball
forward.  Rather, and respecting the integrity and good intentions of
people on various sides of this argument, we have a strong disagreement
about the meaning of the AoC on the consumer trust issue.

One group reads Paragraph 3 as a “chapeau” text introducing Paragraph 9.3,
in which the consumer trust issue is exclusively limited to TLD expansion
and calls for a review on the subject. I, along with many others, acting
in good faith believe that this is unquestionably the proper reading of
the AoC.

I understand that another group reads Paragraph 3 as creating a separate,
stand-alone and generalized obligation to promote consumer trust in the
DNS marketplace that should be reflected in Article 1 of the Bylaws.

I accept that this reading is taken in good faith, but I believe it is
inconsistent with standard principles applicable to textual
interpretation, let alone statutory construction, and an extraordinary
expansion of ICANN’s remit.  I know what protecting and promoting
“consumer trust” means to a consumer protection regulator with sovereign
authority.  I don’t think that’s ICANN’s job - although I do agree that
the AoC gives ICANN specific obligations in this regard in connection with
TLD expansion.  That is being transposed into the Bylaws.

But if we cannot reach consensus about charging ICANN with a general
obligation with to promote consumer trust in the DNS marketplace - which
apparently we cannot - then we need to find a way to proceed, unless
everyone just wants to keep repeating their views and casting aspersions
about the good faith of people with different views.  So, my suggestion is
WS2.

J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932<tel:%2B1.202.533.2932>  Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz>
<http://www.neustar.biz>

On 1/13/16, 12:12 PM, "Avri Doria" <avri at acm.org<mailto:avri at acm.org>> wrote:

>Hi,
>
>In this case, I do not believe we will have sufficient cause to request
>that the AOC be cancelled by mutual agreement.  If all of the AOC
>concerns can't be brought into the bylaws, then they can't be said to be
>covered by the the By Laws.
>
>Of course ICANN can still unilaterally abandon the AOC.
>
>I also think we may need to be much more careful to make sure we have
>agreed upon definitions for all terms in the By Laws and not just those
>that belong to concepts some people are not comfortable with.  I know
>there are some terms for which I have not been absolutely sure of the
>meaning and on which we have never had real dialogue.  For example in an
>international context what do we really mean by 'promote',
>'competition', and 'consumer choice'.  I know I am not comfortable with
>the way some people define these terms.  What are our criteria for these
>terms and for knowing when we have achieved them?  How can a review
>decide that we have adequate global competition?  How active do we need
>to be about promoting competition, especially in a global context with
>economies that have different capabilities.  How much choice is
>sufficient consumer choice?  I do not believe we have any better idea,
>or have had adequate dialogue and consensus on the meaning of these
>terms and concepts.  I do believe we  generally understand them as well
>as we understand consumer trust, but not better.
>
>I am also sure I can find lack of dialogue and ambiguity on many other
>terms used in the By Laws.  Is that the process we must now open up?
>
>Lastly I think it is in the process of the multistakeholder AOC type
>reviews that we work on our evolving consensus definitions.  I am
>certain that we now have a much deeper understanding of Accountability
>and Transparency after the two ATRT reviews than we did before those
>reviews.
>
>avri
>
>On 13-Jan-16 10:59, Burr, Becky wrote:
>> I understand your point Avri, but (as I said, unlike the HR issue) we
>>have
>> had no real dialogue on what ³consumer trust² encompasses (outside of
>>the
>> new gTLD review context), so it seems to me that moving the issue to WS2
>> is the only possible approach.
>>
>>
>> J. Beckwith Burr
>> Neustar, Inc. / Deputy
>> General Counsel & Chief Privacy Officer
>> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
>> Office: +1.202.533.2932<tel:%2B1.202.533.2932>  Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz>
>> <http://www.neustar.biz>
>>
>>
>>
>>
>> On 1/12/16, 5:42 PM, "Avri Doria" <avri at acm.org<mailto:avri at acm.org>> wrote:
>>
>>> Hi,
>>>
>>> Not sure I buy into the Xmas tree analogy, especially when trying to
>>> delineate values.
>>>
>>> And while I have not had to make this argument in a while, I still
>>> maintain that as a vassal of the NTIA, ICANN would have been
>>>constrained
>>> to respect human rights and that the loss of NTIA forces us to take
>>>some
>>> responsibility for that as a corporation, especially in regard to an
>>> open Internet.
>>>
>>> I still find it rather shocking and depressing that many, including our
>>> Board are fighting against human rights so hard at iCANN.  Option 2b
>>> would be a travesty and 2c is just a fig leaf, better than nothing, but
>>> barely.
>>>
>>> As for consumer trust, that may be a similar situation.  NTIA has shown
>>> by its participation in the AOC how much it cares about consumer trust,
>>> and I think that if the complaints against ICANN for consumer issues
>>>got
>>> any worse than they are, we would hear about from the NTIA and it
>>>would
>>> be a consideration for any IANA renewal.  I would hope that they would
>>> reject any plan that did not promise an effort to maintain and improve
>>> ours.
>>>
>>>
>>> avri
>>>
>>> On 12-Jan-16 16:30, Andrew Sullivan wrote:
>>>> On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
>>>>
>>>>> The language on human rights would be a departure from that
>>>>> standard, and the introduction of a generalized ³consumer trust² role
>>>>> would be yet another.  Apart from these two concepts, all of the
>>>>> assigned roles and responsibilities appear in ICANN¹s existing
>>>>> Bylaws, Articles of Incorporation, and the White Paper itself.
>>>> I think the above is an important argument, and it takes on more
>>>> importance when we reflect on previous observations from the NTIA that
>>>> this accountability work ought not to be an opportunity to remake
>>>> ICANN.
>>>>
>>>> Best regards,
>>>>
>>>> A
>>>>
>>>
>>> ---
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