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

Alan Greenberg alan.greenberg at mcgill.ca
Thu Jan 14 05:49:58 UTC 2016


Becky, can you please explain why you think that 
3.c is there solely as an introduction to 9.3, 
whereas 3.a, 3.b and 3.d clearly have a wider scope?

For those who do not have an AoC handy, I 
reproduce the section in question here.

3. This document affirms key commitments by DOC 
and ICANN, including commitments to: (a) ensure 
that decisions made related to the global 
technical coordination of the DNS are made in the 
public interest and are accountable and 
transparent; (b) preserve the security, stability 
and resiliency of the DNS; (c) promote 
competition, consumer trust, and consumer choice 
in the DNS marketplace; and (d) facilitate 
international participation in DNS technical coordination.

Alan

At 13/01/2016 02:01 PM, Burr, Becky 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  Mobile: +1.202.352.6367 / neustar.biz
><http://www.neustar.biz>
>
>
>
>
>On 1/13/16, 12:12 PM, "Avri Doria" <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 ©øconsumer trust©÷ 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  Mobile: +1.202.352.6367 / neustar.biz
> >> <http://www.neustar.biz>
> >>
> >>
> >>
> >>
> >> On 1/12/16, 5:42 PM, "Avri Doria" <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 ©øconsumer trust©÷ role
> >>>>> would be yet another.  Apart from these two concepts, all of the
> >>>>> assigned roles and responsibilities appear in ICANN©ös 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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