[bylaws-coord] Group call today or tomorrow

Sun Apr 17 14:20:10 UTC 2016

Hi John,

Thanks for this.  It's very helpful.  I have a couple remarks in
response.  Sorry this is long; but, as the saying goes, I didn't have
time to write a short note.

To begin, I believe we have three interlocking goals in respect of
this Mission text.  I'll number them here for later reference, but in
my opinion they're all of equal priority: (1) To ensure that ICANN's
quite correct role in co-ordinating some kinds of actions with respect
to the DNS remains permitted and understood to be legitimate.  (2) To
ensure that the Mission text cannot be used by those who would like to
use ICANN to impose rules on the Internet generally.  (3) To respect
the consensus of the community as embodied in the existing, approved
CCWG document.

I'm glad your memo emphasises the conceptual nature of the CCWG
report.  I think that means two things.  It means that the legal teams
working on the bylaw text do not need to cleave to the words in the
report.  But of course, it also means that the legal teams also need
to stick to the concepts that are in the report, in order to meet goal
3.  I hope we can all agree that the restriction of ICANN's scope to
the root zone is an important conceptual point in the CCWG report, and
can't simply be set aside as part of the drafting exercise.  If we are
not in agreement about that, perhaps we should concentrate on that
basic issue on the call today -- since until we agree about what
concepts are to be implemented in the bylaws, the drafting effort will
only yield frustration.

Assuming that we are in agreement, then I have some responses to the
issues outlined in the memo.  It seems to me that removing the term
"root zone" would not be consistent with the concepts in the CCWG
report.  Moreover, I do not understand why it would need special
definition: if you know what a "DNS" is, then you know what a "root
zone" is, because a root zone is part of the very definition of the
technnology.  This technology is defined in a large number of RFCs,
and of course the IETF is in a position to continue to change that
definition.  But if need be, I suppose, the Mission could refer to
those RFCs and acknowledge that the meaning could change in the
future.

You note a worry "that the activities of ICANN at a level other than
the 'root zone' would be subject to interpretation by an IRP panel as
to whether it is within ICANN’s mission."  I think that being subject
to such interpretation is in fact precisely the point of the
restriction, and this is in service of goal 2: the community does not
want ICANN's authority to extend throughout the DNS.  I don't believe
ICANN wants such authority, either.  (Incidentally, I don't see what
the relevance of the existing ICANN byalws is here: the point of this
effort is to clarify the Mission, and if the bylaws were already right
there wouldn't be anything to do.)

The examples you use of things that ICANN does beyond the root zone
are, I suggest, policy activities that could equally flow from ICANN's
authority over the root zone.  The GNSO policies relating to
registrations, for instance, are all policies that govern how certain
registries will operate.  The basis for that governance is ICANN's
willingness to delegate the relevant parts of the namespace to the
operator of this or that registry.  Indeed, this distinction is
exactly why there is a policy difference between gTLDs (contracted
registries) and ccTLDs (who are not as a rule contracted parties).

The examples of constraints on registrars could be understood as
constraints that arise due to accreditation.  ICANN can quite
naturally extract any requirements it likes as part of its
accreditation process.  And it can extract a promise from registries
under contract that such registries will only permit registration
through accredited registrars.  Again, none of these policies extend
to zones where ICANN does not have a direct contractual relationship
to the registry operator: they don't automatically apply in ccTLDs and
they also don't apply in anvilwalrusden.com (which I operate).

Now, if you believe that somewhere ICANN needs explicit permission to
impose these kinds of policy rules on those with whom it has direct
contractual relationships, I think that would be entirely consistent
with what the CCWG had already concluded.  I thought that the
inclusion of the "picket fence" language gave you that; but if not,
then that seems an obvious addition.

I hope this is useful for framing discussion on the call today.

Best regards,

A

On Sat, Apr 16, 2016 at 09:24:09PM -0700, John Jeffrey wrote:
> BCG Members — In preparation for the discussion of the Bylaws Coordination Group to be held at 21.00 UTC 17 April, please find attached a legal briefing note reflecting some of the discussion among ICANN counsel and the ICANN Board members on the topic of the bylaws mission language.
> 

> 
> 
> best,
> John Jeffrey
> General Counsel & Secretary, ICANN
> 
> 
> > On Apr 16, 2016, at 9:11 AM, Mathieu Weill <mathieu.weill at afnic.fr> wrote:
> > 
> > Like Andrew I would appreciate some more inputs before the meeting (which I am unsure to attend at this point). 
> > 
> > Best
> > 
> > Mathieu Weill
> > ---------------
> > Depuis mon mobile, désolé pour le style
> > 
> >> Le 16 avr. 2016 à 15:56, Andrew Sullivan <ajs at anvilwalrusden.com> a écrit :
> >> 
> >> It would still be very helpful to have something to read to explain
> >> what exactly has changed here.  The CCWG has been asked about changing
> >> this, and as far as I could tell there was not agreement that removing
> >> the restriction is consistent with the CCWG consensus document.  Is
> >> there some new argument about how the removal would be so consistent?
> >> Because if not, I don't really see how the removal can happen without
> >> re-opening the community-approved proposal.  Surely that'd be a bad thing.
> >> 
> >> Best regards,
> >> 
> >> A
> >> 
> >>> On Sat, Apr 16, 2016 at 01:46:23PM +0000, Grace Abuhamad wrote:
> >>> Thank you all for your quick responses. We will do Sunday at 21:00 UTC. You will receive an invite shortly either from Brenda or me.
> >>> 
> >>> 
> >>> Sent from my mobile device
> >>> 
> >>> On Apr 16, 2016, at 07:58, Rinalia Abdul Rahim <rinalia.abdulrahim at gmail.com<mailto:rinalia.abdulrahim at gmail.com>> wrote:
> >>> 
> >>> Grace, not just hard for those in Europe, but also in Asia.  Nevertheless, I can make the time slots.
> >>> 
> >>> Rinalia
> >>> 
> >>> On Saturday, 16 April 2016, Grace Abuhamad <grace.abuhamad at icann.org<mailto:grace.abuhamad at icann.org>> wrote:
> >>> Dear all,
> >>> 
> >>> We would like to schedule a Bylaws Coordination Group call to discuss language around the Root Zone. This 1h call would preferably take place today or tomorrow.
> >>> 
> >>> Based on the legal teams' availability, we have suggested three times below that are still within waking hours in other global time zones. Please respond to me with your preference, and we will get the invite and call details circulated as soon as possible.
> >>> 
> >>> Option 1: Saturday 16 April at 21:00 UTC
> >>> 
> >>> Option 2: Sunday 17 April at 20:00 UTC
> >>> 
> >>> Option 3: Sunday 17 April at 21:00 UTC
> >>> 
> >>> We acknowledge that these times are in small windows and late for our European colleagues, but we hope that these times can be accommodated.
> >>> 
> >>> Thank you,
> >>> Grace
> >>> _______________________________________________
> >>> bylaws-coord mailing list
> >>> bylaws-coord at icann.org<javascript:;>
> >>> https://mm.icann.org/mailman/listinfo/bylaws-coord
> >> 
> >>> _______________________________________________
> >>> bylaws-coord mailing list
> >>> bylaws-coord at icann.org
> >>> https://mm.icann.org/mailman/listinfo/bylaws-coord
> >> 
> >> 
> >> -- 
> >> Andrew Sullivan
> >> ajs at anvilwalrusden.com
> >> _______________________________________________
> >> bylaws-coord mailing list
> >> bylaws-coord at icann.org
> >> https://mm.icann.org/mailman/listinfo/bylaws-coord
> > _______________________________________________
> > bylaws-coord mailing list
> > bylaws-coord at icann.org
> > https://mm.icann.org/mailman/listinfo/bylaws-coord
> 

-- 
Andrew Sullivan
ajs at anvilwalrusden.com