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There are several troubling things in the Board's comments on the Mission
Statement. <br><br>
The CCWG Mission Statement had two fundamental constraints on ICANN's
powers: a "picket fence," and a requirement that policies
imposed by ICANN on DNS participants have to be developed through a
consensus-based multi-stakeholder process.<br>
<br>
The Board's comments appear to do away with <i>both </i>of these
constraints. Instead, the Board would substitute a simplified Mission
Statement - "to ensure the stable and secure operation of the
global, interoperable Internet's unique identifier systems" - a
statement that ICANN will only as "reasonably appropriate" to
achieve that Mission, and two additional Principles:<br><br>
(1) that "ICANN's entering into and enforcement of Registry and
Registrar contracts is an important component of ICANN's work in
coordination and allocation of names in the Root Zone of the DNS";
and <br>
(2) that "ICANN is not a regulator, and does not regulate content
through these contracts."<br><br>
The consensus requirement has disappeared entirely. As I read it,
anything that the ICANN Board decides is "reasonably
appropriate" for the "stable and secure operation of the
[DNS]" is within its power to impose on third parties - whether or
not it has been subject of consensus decision-making. <br><br>
And the Mission Statement is watered down still further in regard to the
question of ICANN's contracting powers. The CCWG proposal already
acknowledged that "ICANN shall have the ability to negotiate, enter
into, and enforce agreements with contracted parties <i>in service of its
Mission.</i>" This was intended to make clear that ICANN's
powers to impose conditions on 3d parties through its contracts are
limited by the Mission; ICANN can't make an "end run" around
the Mission Statement limitations through its contracts. The
Board's comment omits that italicized language, which would seem to imply
a view that ICANN's power to contract with others (including Registries
and Registrars) is NOT subject to ICANN's Mission, and that ICANN can
condition access to the DNS on whatever conditions it sees fit to
impose. If that's what was intended, I believe it represents a
serious difference of opinion.<br><br>
Finally, why does the Board prefer its language in its Principle 2 -
<br>
"ICANN is not a regulator, and does not regulate content through
these contracts" - <br><br>
to the CCWG proposal language <br>
"ICANN shall not impose regulations on services that use the
Internet's unique identifiers or the content such services carry or
provide"<br><br>
? To use an example we used before: Suppose ICANN requires
all registrants to agree to abide by the decisions of its new Consumer
Protection Dispute Resolution Procedure (CPDRP),which will evaluate
claims of consumer fraud. A challenger says: "That's outside
of ICANN's Mission, and it violates the "no content regulation"
principle." I think it's fair to say that we want that
challenge to succeed - this is precisely the sort of thing we don't want
ICANN to be doing in the future. <br>
But under the Board's view, ICANN will be able to say: "No,
we're not a regulator - and this isn't a 'regulation' of content or
anything else - it's just a contract, and we can do what we like through
our contracts."<br><br>
Unless I'm misreading your comments, it's difficult for me to see how
these views can be reconciled.<br><br>
David<br><br>
At 03:13 PM 12/14/2015, Burr, Becky wrote:<br>
<blockquote type=cite class=cite cite="">Bruce -<br><br>
Could I ask for some clarification on the Boards comments on the Mission
statement?<br><br>
1. I understand that ICANN has an operational role with respect
to names, but I am not sure why that is not encompassed by concept of
implementation of domain name policies? (The Mission statement
does not limit ICANNs role to policy development, and specifically
includes policy implementation.) So, it is important to understand
what the Board means when it refers to allocation and assignment of
names in the root zone and to understand why such activities might fall
outside of policy implementation. It would help to have concrete
examples of the Boards concern here, because I suspect we agree that
ICANN does not have authority to allocate and assign new gTLDs outside of
a policy development process, or to allocate and assign ccTLDs outside
RFC 1591. The Boards view here also has important implications for
resolving 2.B. below<br><br>
2. I understand the Board is concerned about vague language
regarding contractual enforcement. But Im a little vague on what
language is and is not acceptable to the Board (keeping in mind that none
of this is intended as final Bylaws language). <br><br>
A. Does the Board accept (both conceptually and as a concept in the
Bylaws) that ICANN shall act strictly in accordance with, and only as
reasonably appropriate to achieve its Mission? <br><br>
B. Does the Board propose to replace (in some place other than the
Mission Statement) the following two concepts:<br><br>
<dl>
<dl>
<dd>ICANN shall not impose regulations on services that use the
Internets unique identifiers or the content that such services carry or
provide; and
<dd>ICANN shall have the ability to negotiate, enter into, and enforce
agreements with contracted parties in service of its Mission<br><br>
</dl>
<dd>With these concepts:<br><br>
<dl>
<dd>ICANNs entering into and enforcement of Registry and Registrar
contracts is an important component of ICANNs work in coordination and
allocation of names in the Root Zone of the DNS; and
<dd>ICANN is not a regulator and does not regulate content through these
contracts. <br>
<dd>[Aside - I assume ICANN is merely asserting its status here, and is
not actually willing to agree to language prohibiting it from acting as a
regulator]<br>
<br>
<br><br>
</dl>
</dl>3. Whether or not the following concepts belong in the Bylaws,
does the Board agree that:<br><br>
<dl>
<dd>I. The prohibition on regulation of content is not intended
to prevent ICANN policies from taking into account the use of domain
names as identifiers in various natural languages;<br>
<dd>II. Spec 1 of the RA and Spec 4 of the RAA describe
activities within ICANNs Mission; and<br>
<dd>III. The parties to existing Registry Agreements and Registrar
Accreditation Agreements are bound by those agreements. <br>
<br><br>
</dl>Thanks. <br><br>
B<br><br>
J. Beckwith Burr <br>
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer<br>
1775 Pennsylvania Avenue NW, Washington D.C. 20006<br>
Office: +1.202.533.2932 Mobile: +1.202.352.6367 /
<a href="http://www.neustar.biz">neustar.biz</a><br><br>
From: Bruce Tonkin
<<a href="mailto:Bruce.Tonkin@melbourneit.com.au">
Bruce.Tonkin@melbourneit.com.au</a>><br>
Date: Monday, December 14, 2015 at 5:49 AM<br>
To: Accountability Community
<<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>><br>
Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third
CCWG-Accountability Draft Proposal on Work Stream 1
Recommendations<br><br>
Hello Jordan,<br>
<br>
Thanks for posting to the list.<br>
<br>
The comments are also available in the public comment forum at:<br>
<br>
<a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__forum.icann.org_lists_comments-2Ddraft-2Dccwg-2Daccountability-2Dproposal-2D30nov15_msg00011.html&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=iW32Hzmtks3csdT35yoDnewxY1qpThZOMgm4lAhs1is&s=5YoT41DhstPoCt-F83_aupS65UqO3DBFX9YrdeFCgdA&e=">
http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30nov15/msg00011.html</a>
<br>
<br>
We had a half day meeting of the full Board on Thursday 10 Dec, and then
spent a few hours again with the full Board finalizing the comments
yesterday Sunday 13 Dec. That was in
addition to another half day meeting held on Saturday 5 Dec.
All dates are relative to my time zone J<br>
<br>
Regards,<br>
Bruce Tonkin<br>
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