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

[Andrew Sullivan]

On Thu, Jan 14, 2016 at 07:31:50PM +0100, Seun Ojedeji wrote:
> Perhaps what "management of TLD" mean for ICANN needs to be clarified and I
> like to get it clear through example. Is ICANN said to be "managing TLD" in
> the 2 broad scenarios below:

I don't think they're managing the TLD at all.  They're managing the
terms of the delegation of that TLD.  We're sliding over a technical
difference that, in this case, makes the difference.
 
> 1. That ICANN by its policy/procedure approves specific TLD to certain
> applicant

I'd state this instead as "ICANN by its policies and procedures
allocates specific names in the root zone for a given operator of that
name, subject additionally to the ordinary IANA rules (which are,
themselves, generated by ICANN policies and procedures) in order to
permit delegation."  ICANN's rules here might well involve checks on
the action of the operator of that name, but that is not "management"
of them except in the sense of any other management of a commercial
contract.  The operator receives the allocation under certain terms
and conditions, and because of that ICANN is in a position to
determine whether the terms and conditions are met, in order to
fulfill ICANN's job as the manager of the allocation and delegation
policies within ICANN's area of responsibilty (the root zone).

> 2. That ICANN require an already assigned TLD be used/operated in a
> specific way.

This is just a special case of the same "terms and conditions are met"
question above.  ICANN's power comes from its ability to remove the
delegation from the root zone due to of non-performance on the part of
the operator of the name.  Because that would be disruptive to the
global DNS, ICANN seeks to use other mechanisms (like contracts) to
enforce the performance.  But the ultimate management power ICANN has
is in fact only that of removing the delegation -- in effect,
terminating the contract.  Like any other normal actor that has
operational responsibilities, ICANN seeks to blunt the side effects of
such contract termination by requiring escrow and so on, precisely so
that one bad actor's non-performance doesn't have nasty side effects.

To the extent that ICANN uses this power to expand its ability to
force terms on operators of TLDs, I think it is acting outside its
remit.  I think that worry is one source of opposition here.  But I
also think that the new accountability measures that are supposed to
take effect if ever we finish this work mean that ICANN's incentives
to try to expand its control in this way will be tempered by the
ability of the community to prevent it doing so.  This is why I think
the approach Becky has been taking is correct.  We need to line up the
incentives for the right behaviour, rather than trying to create rules
that will make bad behaviour impossible.  Rules can always be gamed,
whereas correctly-aligned incentives discourage gaming.

But none of this will be made easier if we permit over-broad language
about consumer protection in the DNS market, since that isn't actually
what ICANN does.

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com