[ST-WP] FW: [CCWG-ACCT] Revised Stress Tests 29 and 30

Sun Oct 18 07:20:38 UTC 2015

Moving this thread over to the Stress Test work party, at Malcolm’s request.

Greg offered his edits (1st attachment) based on the 2nd draft CCWG report.

Greg had not seen that the ST work party published its recommendation last week for how to respond to public comments on ST 29 and ST 30 (attached and below).    I’m not suggesting the recommendations below would solve Greg’s concerns and Malcolm’s response, but let’s please consider this text as well.

—Steve

Areas of Concern/Divergence
1. Stress Tests 29 and 30:  (pp 112-13)     These STs were added in response to public comment from New America Foundation.  7 commenters object to ST 29 and 30 (CoA, RIAA, IPC, ITI, US Chamber, USCIB, BC). Staff summarized objections as:
submissions were concerned about conflation with content regulation. To quote the US Chamber of Commerce on the topic: “We are concerned with the framing of Stress Tests # 29 and 30, which seems to conflate the enforcement of certain mutually-agreed to contractual obligations with that of “content regulation.” ICANN has a duty to enforce and enter into mutually agreeable contractual provisions, that are aimed at preventing malicious, abusive, or illegal conduct and the CCWG should add language clarifying this this obligation is not altered by ICANN’s revised Mission statement. We have a concern that the by-laws can be interpreted to limit ICANN’s ability (or willingness) to enforce existing contract terms and Public Interest Commitments with Registrars, agree to new contracts with strong protection provisions or otherwise participate in other programs designed to promote public interest goals.”
As to whether the ST team properly analyzed the Stress Tests, we said the IRP could potentially find that contract enforcement could be tested against bylaws requirement for bottom-up policy and ICANN’s mission statement.   (We have no idea what an IRP would say).  Commenters in Los Angeles said that we should not have accepted the Consequence text from New America: “ICANN effectively becomes a regulator of conduct and content on registrant websites”
The ST analysis as succeeded in focusing attention on the need to clarify whether limited mission and B-Up process bylaws would interfere with contract enforcement.   We note that WP2 is considering new text for the mission statement draft.
ST team recommends that the “consequence” stated in ST 29 and ST 30 be replaced with ”ICANN’s enforcement of registry and registrar contract terms might be blocked by an IRP ruling citing amended Mission and Core Values. “
Also, the ST team recommends that the conclusion of ST 29 and 30 be replaced with “Proposed measures would be adequate to challenge ICANN enforcement actions, but it is unlikely that IRP panels would block enforcement of voluntary contract terms and consensus policies”

From: <ccwg-accountability4-bounces at icann.org<mailto:ccwg-accountability4-bounces at icann.org>> on behalf of Malcolm Hutty
Date: Saturday, October 17, 2015 at 7:01 AM
To: Greg Shatan, "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>", "ccwg-accountability4 at icann.org<mailto:ccwg-accountability4 at icann.org>"
Subject: Re: [ST-WP] [CCWG-ACCT] Revised Stress Tests 29 and 30

On 17/10/2015 02:22, Greg Shatan wrote:
All,

As discussed during yesterday's F2F session, I attach proposed
revisions to Stress Tests 29 and 30.

Dear Greg,

I think you have misunderstood how the Stress Tests are constructed.

The Stress Tests exist to test whether our proposal is sufficiently
robust to preclude certain identified adverse outcomes from materialising.

The Stress Tests therefore posit that feared adverse outcome, together
with a presumed set of circumstances that it could be feared might bring
that outcome about. These circumstances, and the adverse outcome being
tested, are recorded in the first and second boxes respectively.

The current arranagements and our proposal is then inspected for
measures (safeguards) that are relevant to precluding that adverse
outcome from materialising. Those relevant measures are to be recorded
in the boxes marked "existing accountability measures" and "proposed
accountability measures, respectively. Finally, the adequacy of those
measures as a means of avoiding the feared outcome is assessed, and the
conclusion of that assessment is recorded in the box marked "conclusion".

This is the way all the stress tests have been structured.

Accordingly, while we might refine the presumed circumstances, it is the
feared outcome that remains constant: it is the adequacy of the measures
at precluding the outcome from materialising that is being tested.

In your draft you use the box marked "outcome" for the conclusion (i.e.
you are using to show the actual outcome you expect to result, rather
than the feared outcome being tested). This is inconsistent with the
construction of the stress tests.

Unfortunately your drafting therefore omits mention of what is being
tested, and for this reason is unsuitable for acceptance as a stress
test. If you would like to redraft and resubmit, please revert the
"Outcome" being tested to the original. Following the methodology above
will help you to remain consistent with the rest of the suite of stress
tests.

Malcolm.

P.S. I am copying the stress test working party mailing list. I suggest
that for the convenience of CCWG any follow-up discussion be moved to
the ST-WP list only.

On 17/10/2015 02:22, Greg Shatan wrote:
All,
As discussed during yesterday's F2F session, I attach proposed revisions
to Stress Tests 29 and 30.  Please note that I split Stress Test 29 into
two parts, since the two paragraphs of the ST29 posed different issues
with differing answers.
I followed the limitation set by the Stress Test Working Party that the
text of the "Stress Test" fact statement should not be changed.
I look forward to comments.
Greg
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