[Area 4] Initial suggestions

[Malcolm Hutty]

I would like to suggest the following two scenarios, which are broadly
defined and may encompass many other more specific suggestions that may
be made:

Scenario 1. ICANN Board acts inconsisently with the bylaws.

Scenario 2. ICANN Board acts outside the intended scope of the mandate.

I would like to suggest that particular attention be given to a slightly
more specific subset of Scenario 2:

Scenario 2A. ICANN Board attempts to use RAs and the RAA to impose
policies on registrants (and possibly, through them, on Internet users)
outside the intended scope of DNS policy, e.g. to attempt to regulate
general business practices, or Internet content and behaviour generally.


Within Scenarion 1, I would include both cases where the Board acts
willfully and explicitly in defiance of the bylaws (for example, where
the Board claimed that the importance and urgency of achieving a
particular outcome justified the Board ignoring a bylaws-mandated
process), as well as cases where the question of the consistency of a
Board action with the bylaws is itself contentious.

More or less fanciful examples can be constructed to describe how these
scenarios might arise, and the harms they might cause. I certainly
wouldn't limit it to the Board "going rogue" in the sense of becoming
irrational or seeking personal gain. It is quite conceivable that a
substantial constituency could exist to pressure the Board to act in
this manner in a particular case, in support of that stakeholder or
stakeholder group's interests and objectives.

The harm caused by these scenarios may be particular, or it may be
general. If it is particular to an identified stakeholder, forms of
recourse like litigation, arbitration or an Ombudsman may be
appropriate. However if it is general (and I would suggest there is a
also a general interest in having the Board comply with the bylaws),
there may be no stakeholder who can show specific harm to themselves,
and some other form of recourse may be necessary.

Regarding Scenario 2A there is a broader reason to seek to prevent this
scenario: even if a consensus (or the appearance of a consensus) could
be found on a particular issue, it would still be undesirable to enable
ICANN to impose policy outside the current scope of DNS management,
because we do not want to invest ICANN with general legislative powers.

In fact, we may in fact need to think a little harder about precisely
what the current scope is intended to be, so that we may write it down
more clearly. Broadly speaking, however, what I have in mind is the
notion that it's appropriate for ICANN policy to say you're only
entitled to register in .bank if you are a recognised bank, but highly
problematic for ICANN policy to say that you're only entitled to
register in .bank if you notify cash transactions over $10,000 to the US
government.

Kind Regards,

Malcolm.

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