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

[Malcolm Hutty]

Becky,

I agree that the existence of community applications has been an
important part of the new gTLD process. I don't think the small
limitation on the Mission we have agreed in the Third Draft Report would
or should prevent ICANN creating new community TLDs in the future.

You give the example of .bank. I don't see anything in the Mission that
inhibits ICANN in any way from saying that .bank has been created for
the exclusive use of recognised banks, and that the only banks it
recognises for this purpose are those with an appropriate banking
license under applicable law.

This is quite different from regulating the behaviour of banks. If ICANN
went on to say that any bank must report cash transactions over $10,000
to the US treasury, and any bank refused to do this it would take their
domains away, then that would be an example of ICANN regulating the
behaviour of banks, not of it identifying a particular user community.
Though opponents of a limited Mission can try to blur this distinction
with cleverly-constructed corner cases, I think this distinction is
quite clear enough to be workable and to be objectively employed by an
independent reviewer.

Turning to your example of environmental activists, I think it clear
that if ICANN sets rules requiring disclosure of certain environmental
practices then that is a clear example of behavioural regulation, that I
don't think ICANN should be getting into. By contrast, if that registry
promised to have a stakeholder council and then disbanded it, I think
this would be a case of changing the organisational structure of the
registry, no different from disbanding a customer complaints division
(and no less objectionable).

In short, I think community TLDs should be allowed for identifiable
communities; I don't think this carries any necessary implication that
ICANN should get into the business of seeking to regulate the behaviour
of the members of those communities (except as justified by reasons that
actually are part of ICANN's Mission, of course).

To those who disagree, I would like to point out the inevitable
consequences of going down this route.

Some say that the registry should be "made to uphold" these commitments,
while still thinking that this doesn't require ICANN to begin creating
such behavioural rules itself. I think this profoundly mistaken.

Suppose that a registry, such as for .eco, makes a commitment to enforce
certain behaviour by its users, such as the publication of relevant
environmental reports. As long as nobody is objecting, the fact that
ICANN has contracted with the registry to do this doesn't really have
any effect. The only time it matters is when someone complains.

The only way ICANN gets involved is when someone comes to ICANN and says
".eco promised to make their users disclose environmental reports and
they're not doing so. Please enforce this requirement on the .eco
registry".

What is ICANN supposed to do with this complaint? Proponents of PICS
seem to think there is some magical wand that ICANN waives to bring .eco
into compliance with its contract. This is nonsense. What actually
happens is that ICANN contacts the registry and says "We've had a
complaint you're not requiring publication of relevant reports, is this
true? Please provide evidence that you are doing as you previously
promised.". Most likely, the registry replies that they are in
compliance with their commitment. The evidence offered, however, may
well be open to differing interpretations: for example, .eco may have
placed an extremely narrow definition on what constitutes a "relevant
environmental report".

What is ICANN supposed to do next? On the one hand, it has a
complainant, who can show that the registry is not doing certain things,
and argues that those things are required by the PIC. On the other, it
has a registry, which can show it is doing other things, and argues that
those things are sufficient to discharge the promise it had previously
made in the PIC.

It seems to me that there are really two options for how to proceed:

i) ICANN could be so deferential to the registry interpretation as to
accept its position pretty much automatically: so long as the registry
didn't simply admit non-compliance, and its claim to compliance wasn't
manifestly ridiculous, ICANN could simply stop there. But what is the
value in requiring ICANN to "enforce" PICs to such a limited standard?
If that's all we're going to do, why not save ourselves a lot of bother
(not to mention raising expectations from some stakeholders only to
inevitably disappoint)?

ii) Alternatively, ICANN could investigate the case and come to its own
view as to whether what the registry has done is sufficient to discharge
its contractual obligation. However it can ONLY do that by first forming
a view as to what the PIC requires. So in the putative case, ICANN could
only enforce a requirement to make reasonable environmental disclosures
if it itself determines what it considers constitutes a reasonable
environmental disclosure. Likewise it can only enforce a commitment to
prevent harassment by setting standards for what constitutes harassment,
it can only enforce a commitment take down copyright infringing material
by deciding whether particular publications infringe copyright, and it
can only enforce a commitment to prevent access to certain web sites by
minors by deciding both what age constitutes a minor, and what are
acceptable means for identifying them and for excluding them from access.

In other words, the idea that ICANN can "enforce" PICs without itself
determining the standards that PICs seek to enforce simply doesn't stand
up to scrutiny. As soon as ICANN is called on to enforce a PIC against a
registry, it must necessarily assert that a particular kind of action is
required by the PIC, and distinguish it from the action actually
undertaken that the registry asserts to be sufficient. This is the core
of regulatory activity. I have no problem whatsoever with ICANN engaging
in this kind of regulatory behaviour for matters within its limited
Mission, but if we invite ICANN to take this on for an unlimited range
of objectives claimed to be in the public interest, we are essentially
investing ICANN with a global policing power.

Some may be happy to see ICANN go down that route. I would not: I think
it has neither the capacity nor the legitimacy. But I am also worried by
those who have managed to convince themselves that it is possible to
enforce PICs for an unlimited range of purposes without itself becoming
embroiled in setting the rules for those purposes. Those people are, I
believe, simply kidding themselves.

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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