[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Matthew Shears mshears at cdt.org
Fri Jan 15 14:16:13 UTC 2016


+ 1 Paul, Malcolm, Robin

On 14/01/2016 17:35, Robin Gross wrote:
> I agree with Paul and Malcolm regarding so-called ‘voluntary’ commitments.  We can limit the pressure on ICANN to expand its mission by not creating a loophole in the accountability structures that allows mission creep.  And I agree that the limiting principle is a key foundation for our work.
>
> Robin
>
>
>> On Jan 14, 2016, at 9:03 AM, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com> wrote:
>>
>> I share Malcolm's view of voluntary commitments.  Leaving aside what may
>> have gone before, allowing the parties to an agreement to contract around
>> binding limitations on their action would, effectively, nullify the
>> Mission-limitation principle that is at the core of the accountability
>> structure we are building.  I can live with grandfathering in prior mistakes
>> in this regard, if I have to, but it is essential that the line be drawn for
>> future actions in stone, not sand.
>>
>> Cheers
>> Paul
>>
>> Paul Rosenzweig
>> paul.rosenzweig at redbranchconsulting.com
>> O: +1 (202) 547-0660
>> M: +1 (202) 329-9650
>> VOIP: +1 (202) 738-1739
>> Skype: paul.rosenzweig1066
>> Link to my PGP Key
>>
>>
>> -----Original Message-----
>> From: Malcolm Hutty [mailto:malcolm at linx.net]
>> Sent: Thursday, January 14, 2016 2:14 AM
>> To: Burr, Becky <Becky.Burr at neustar.biz>; Accountability Community
>> <accountability-cross-community at icann.org>
>> Subject: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion
>>
>>
>>
>> On 06/01/2016 19:03, Burr, Becky wrote:
>>> Is attached in DRAFT FORM.  Anything missing or wrong should be
>>> attributed to incompetence rather than conspiracy.  I am still working
>>> on questions in 1 section.  I will also shortly resend a variety of
>>> previously circulated resource documents.
>> Becky,
>>
>> The slide deck you actually presented at meeting 75 contains three
>> propositions that were not contained in this draft deck you copied to the
>> list. I believe you described these in your oral presentation as "strawman
>> propositions for discussion". I am writing to react to those propositions.
>>
>>
>> "Proposition: The GAC may provide Advice on any matter it sees fit; ICANN
>> must duly consider such Advice in accordance with the Bylaws, and if it
>> decides to follow such Advice, must do so in a manner consistent with
>> ICANN's Bylaws, including its Mission Statement."
>>
>> I agree with this proposition.
>>
>> "Proposition: ICANN's agreements with contracted parties may reflect:
>> (a) bottom-up, consensus-based, multistakeholder policies on issues for
>> which uniform or coordinated resolution is reasonably necessary to
>> facilitate the openness, interoperability, resilience, security and/or
>> stability of the DNS; and (b) other provisions in service of that Mission."
>>
>> I also agree with this proposition.
>>
>>
>> The third propostion you introduce with a question:
>>
>> "To what extent should contracted parties be free to propose or voluntarily
>> accept (and obligated to comply with) contract provisions that exceed the
>> scope of ICANN's Mission, e.g., to serve a specific community, pro-actively
>> address a public policy concern?
>>
>> If "voluntary" commitments may exceed the scope of ICANN's Mission, how do
>> you ensure that such commitments are truly voluntary?
>>
>> Proposition: Individually negotiated commitments will be deemed to be
>> voluntary. Existing RA and RAA language (including standard PICs) are
>> "grandfathered" (as defined in Notes). Going forward, a mechanism should be
>> available to permit contracted parties to enter into agreements without
>> waiving the right to challenge (collectively) a contract provision on the
>> grounds that (a) it exceeds ICANN's Mission and (b) was extracted by ICANN
>> on an other than voluntary basis."
>>
>> I do not agree with this proposition, because I think the question you pose
>> to which it is offered as an answer is mistaken.
>>
>>
>> My reasoning is as follows:
>>
>> Let us set aside the question of how to determine whether a particular
>> provision of a contract between ICANN and a Registry was arrived at through
>> "voluntary" means. Let us also set aside the vexed question of whether the
>> concept of a "voluntary commitment" is even meaningful in a negotiation
>> between an entity that has a critical input for its core business and an
>> entity that is the monopoly supplier of that critical input.
>>
>> Let us consider instead: why do we care whether terms in Registry contracts
>> are "voluntary commitments"?
>>
>> To put it another way, what is the wrong with ICANN imposing unwanted terms
>> on Registries?
>>
>> It seems to me that the very notion of "voluntary commitment" must be
>> intended as a meaning of protecting Registries from unreasonable impositions
>> by ICANN. However the fear of ICANN making unreasonable impositions on
>> Registries is not the only or main reason why we want to limit ICANN to
>> acting within its Mission, so addressing the Mission limitation through some
>> definition of what constitutes a "voluntary commitment" misses the point.
>>
>> Limiting ICANN to its Mission is there to protect the entire community, not
>> just Registries. Concerning the so-called "regulatory prohibition", that
>> prohibition is intended primarily to protect the interests of end-user
>> registrants, not those of Registries. We should be just as concerned if
>> ICANN tries to exceed its Mission as a result of a conspiracy between it and
>> the Registries as we should if ICANN does so as a result of some other
>> motivation and then tries to impose requirements on Registries without their
>> approval.
>>
>> Accordingly, I am afraid I cannot agree with either your third proposition
>> or the assumption on which it rests.
>>
>> In your question you ask "To what extent should contracted parties be free
>> to propose or voluntarily accept (and obligated to comply with) contract
>> provisions that exceed the scope of ICANN's Mission".
>>
>> The answer to this is that contracted parties are not bound by ICANN's
>> bylaws, and so they are entirely free to enter into any contractual
>> relations they wish. However, ICANN is bound by its bylaws, and so is not
>> free to be the counterparty to a contract the purpose of which exceeds or is
>> in contradiction with the Mission or other bylaws requirement.
>>
>> Incidentally, I would point out that there is nothing unique about the
>> Mission limitation. If we were to adopt the view that ICANN is free enter
>> into an agreement with Registries for purposes beyond the Mission merely
>> because the Registries were eager for it to do so, by the same token ICANN
>> could then also disregard any other provision of the Bylaws that sought to
>> constrain how ICANN acts provided that Registries "voluntary" agreed to
>> that. That cannot be acceptable to anyone, surely.
>>
>> Kind Regards,
>>
>> 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/
>>
>>                  London Internet Exchange Ltd
>>        Monument Place, 24 Monument Street, London EC3R 8AJ
>>
>>          Company Registered in England No. 3137929
>>        Trinity Court, Trinity Street, Peterborough PE1 1DA
>>
>>
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-- 

Matthew Shears
Director - Global Internet Policy and Human Rights
Center for Democracy & Technology
mshears at cdt.org
+ 44 771 247 2987


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