[Wp2-compactmission] Mission Statement: "that involve issues"

[Malcolm Hutty]

On 2015-03-29 21:36, Burr, Becky wrote:
> Hello All -
> 
> In advance of our discussion tomorrow I am working through the Mission
> and Core Values docs to reflect input (both substantive and
> presentation wise) from Istanbul. This document addresses the Mission
> statement only, remaining sections on (1) Reconciling competing
> Commitments and Core Values; (2) Fundamental Commitments; and (3) Core
> Values to follow.
> 
> Please review.

A separate subject to my previous mail, so I'm putting this in a 
separate mail.

The current drafting applies the picket fence using the phrase

"*that involve issues* issues for which uniform or coordinated 
resolution is
reasonably necessary to facilitate the openness, interoperability,
resilience, security and/or stability of the DNS "

My comment relates to the part of the phrase "that involve issues".


Do we intend that the policy must be reasonably necessary "to facilitate
the openness, interoperability, resilience, security and/or stability of 
the DNS"?
If so, wouldn't it be better to say so?

In short, do we intend this to support a substantive appeal? (As I 
believe we agreed
was our aim at each of our face-to-face meetings).

I'm not convinced that this phrasing achieves that.

To take a fantasy example, suppose that ICANN wished to ensure that 
grocers
never sold bread; such being a privilege to be reserved to specialist 
bakers.
Couldn't it include create a policy requirement that grocers that sold 
bread be
prohibited from registering domain names?

A grocer's complaint to the IRP about such a policy is explicitly a 
complaint about
the mission. The gravamen of the complaint is that ICANN is not 
authorised to regulate
the goods grocers sell, but is attempting to use its control of domain 
policy to do so
nonetheless.

So we must ask ourselves, if the mission is written as above, would the 
IRP be able
to say that ICANN was acting outside the mission? Or would ICANN be able 
to defend
itself on the grounds that

    (i) having a policy as to who is permitted to register domain names 
involves issues for
        which uniform coordination is reasonable necessary to facilitate 
openness, and
    (ii) that the content of that policy is its own prerogative, and 
cannot be questioned
        by reference to how successful it is at achieving openness, or 
even according to
        whether particular provisions of that policy are designed to 
enhance or restrict openness?

I don't think the answer is clear, but there certainly seems a 
colourable argument
that this wording precludes any substantive appeal to the purposive 
aspect of the mission.

So I would put forward as an alternative the same language I offered a 
week ago

" insofar as uniform [global] coordination is reasonably necessary
        to facilitate openness, interoperability, resilience, security
        and/or stability of the Internet."

I think that more clearly empowers the IRP to say "this policy cannot 
reasonably be justified
as supporting any of 'openness, interoperability, resilience, security 
and/or stability of
the Internet' and, that being the case, it must be set aside".



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             Malcolm Hutty | tel: +44 20 7645 3523
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