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

[Malcolm Hutty]

 [Previous message resent, because apparently crazy line-breaks made
  the original illegible. Sorry for that]

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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