[Area 4] A reading of the Business Constituency's ten "Stress Tests"

[Eric Brunner-Williams]

Dear Colleagues,

During the December 9th CCWG-Accountability conference call Steve 
DelBianco (BC) mentioned a document prepared by the Business 
Constituency entitled "Stress Tests". The URL for this document is at 
[1] below. In this note I'll discuss the BC's ten suggested scenarios, 
and I urge you all to read through the original document.

--
BC  #1. Cancellation of the AoC.

I am not a lawyer, but my wife is, and restating the hypothetical as 
"what constrains the conduct of the successor contractor in the absence 
of the existing contractual conditions" seems to avoid the question of 
accountability altogether.

I suggest this item be deferred until clarified.

--
BC  #2. Flight to avoid jurisdiction.

I am not a lawyer, but my wife is, and restating the hypothetical as "in 
what jurisdictions would Verisign, GoDaddy, ... be unable to determine 
likely contested issue outcomes" yields a very unlikely set of possible 
answers.

I suggest this item should be discarded as a distraction.

--
BC  #3. Insolvency.

The is a business continuity question, for which a number of equivalent, 
and more likely, scenarios exist.

I think this item can be improved by asking what Continuity issues are 
reflected in the Corporation's plan of record, and whether distinct 
accountability issues exist.

--
BC  #4. Applicant Support Revisited.

The ICANN BoC indicated at the Nairobi meeting that "diversity" 
necessitated activity -- realized in that period by the (Cross 
Community) Applicant Support Working Group (ASG), which inter alia, 
included the possibility that the support provided to some applicants 
could come directly from ICANN, in the form of reduced regulatory 
burdens, reduced application fees, reduced recurring costs, etc. 
Recommendations by the ASWG to this effect were opposed during the 
public comments periods by the BC, hence my summary that this revisits 
the BC's position of record on the ASWG sets of recommendations.

I suggest that this item can be improved by asking what happens if ICANN 
attempts to regulate some activity which is outside of the usual three 
buckets of names, protocol parameters, and addresses, and without 
implicitly privileging early adopters. Then a meaningful accountability 
question can be posed and a credible scenario constructed.

--
BC  #5. Ignoring SSAC

The accountability issue here isn't obvious to me. The bylaws create 
several Advisory Councils, and when they function they can provide the 
Board with advice opposed to some decision the AC anticipates the Board 
may make. No accountability necessarily arises when the Board 
(frequently) does not follow the advice offered by an AC. The BC 
comments refer to "new accountability mechanisms" in the context of gTLD 
delegation.

I suggest that this item can be improved by asking what accountability 
issues exist with respect to new gTLD (re)delegeation. See also BC #7 
and BC #8, infra.

--
BC  #6. GAC votes

The accountability issue here isn't obvious to me. The bylaws create 
several Advisory Councils, each of which may have distinct internal 
processes resulting in the issuance of advice. A change in any AC's 
internal process does not necessarily create an accountability issue.

I suggest this item should be discarded.

--
BC  #7. .xxx redux

This appears to revisit the .xxx issue, within the hypothetical 
framework of BC #6 -- a GAC vote rather than a lack of GAC consensus and 
overt (and covert) expressions of displeasure by Governments.

As this is an instance of #6, I suggest this item should be discarded as 
with BC #6.

--
BC  #8. Contested gTLD Regelegation

This revisits BC #2, supra, the hypothetical case assumes some novel 
jurisdiction in which Verisign and others which maintain and publish the 
IANA root zone. As this is an instance of #2, I suggest this item should 
be discarded as with BC #2.

--
BC  #9. Enjoined Delegation

This revisits BC #2, supra, the hypothetical case assumes some novel 
jurisdiction in which "ICANN and the IANA" are "empowered" to litigate a 
registry contract.

As this is an instance of #2, I suggest this item should be discarded as 
with BC #2.

--
BC #10. Contested ccTLF Redelegation

The policy for ccTLD redelegation has been, with the exception of .iq, 
where the incumbent delegee was in the custody of the United States, 
agreement by all parties. Until this policy is formally changed this 
does not appear to exercise an accountability issue beyond the existing 
practice of accounting for ccTLD change requests.

I suggest this item should be discarded.

----

After several readings of the BC's document I'm unable to discern 
significant likely scenarios for which accountability issues exist. It 
is quite possible that I'm reading this with insufficient information, 
or unfairly due to long familiarity with the BC's positions of record on 
diversity and access, or unfairly due to a personal impression that 
several of the "scenarios" are quite unlikely, or ambiguous to the point 
of non-meaning, or both.

To its credit, the BC has attempted to find scenarios of general 
utility, and offers these suggestions, so that "we [c]ould consider ... 
scenarios that could arise."

Any colleague who arrives at a different reading I hope will articulate 
his or her reading on any or all of BC #1 through BC #10, as mine is 
only one view of a document offered for collegial review.

Eric Brunner-Williams
Eugene, Oregon

[1] http://www.bizconst.org/StressTests/