[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Wed Nov 11 06:26:25 UTC 2015

My responses to Malcolm's first email are inline.

Greg

On Tue, Nov 10, 2015 at 7:55 PM, Malcolm Hutty <malcolm at linx.net> wrote:

>
> Dear Becky,
>
> According to our charter, the following definitions are used:
> a) Full Consensus - a position where no minority disagrees; identified
> by an absence of objection
> b) Consensus – a position where a small minority disagrees, but most agree
>
> See https://community.icann.org/display/acctcrosscomm/Charter
>
>
> I am writing to supply evidence that two of your consensus level
> estimations are not consistent with these standards.
>
> I am writing to disagree with your estimation of the level of consensus
> on certain points.
>
> > o   To the extent that registry operators voluntarily assume obligations
> > with respect to registry operations as part of the application process,
> > ICANN should have the authority to enforce those commitments.
> >
> >   /NOTE:  There is not “full consensus” on this position/.
>
> To the extent that this principle as stated would override the principle
> that ICANN should not seek to regulate the content of web sites or the
> general business practices of domain registrants (parties who have no
> privity of contract with ICANN), I believe there is widespread
> disagreement with your proposal in evidence in the public comment record.
>
> Please find attached 11 comment extracts from the first public comment
> period. I have chosen these 11 comments as being examples that clearly
> and unequivocally expresses opposition to your proposed principle, to
> the extent stated above. These comments come from a broad range of
> stakeholders, including a Congressional Resolution.
>

GS:  I think there are two fundamental flaws here, which essentially
negate this entire analysis.  First, this attempts to conflate the public
comment record and the concept of CCWG consensus.  Public comments are
important and they must be considered in the work of the CCWG (or any WG)
but they are in no way a measure of consensus (or lack of consensus) within
the CCWG.  These are apples and oranges; though I suppose if you juggle
them fast enough, they all look like fruit.  Any attempt to use public
comments to determine CCWG consensus should be rejected.  (It's worth
noting that these are 11 comments out of well over 100, so clearly that
doesn't represent any kind of consensus, even among the commenters.

The second fundamental flaw is the presumption that enforcing "
voluntarily assume
d
obligations

with respect to registry operations
" constitutes "regulation of services that use the DNS or the content
these services carry or provide" or the regulation of entities with which
iCANN does not have a contractual relationship.  I contend that it is
nothing of the sort.  Indeed it's hard to see any linkage between the
registry obligations on the one hand, and the regulation of services or
content, on the other hand.  And frankly, if there is a linkage, nullifying
agreements and obligations that form the basis of the new gTLD program is
something to be avoided aggressively, not embraced.

Finally, HR 2251 is not a "Congressional Resolution': it is merely a piece
of proposed legislation (the "Defending Internet Freedom Act")  which is
now dead and carries essentially zero weight.  "Congressional Resolution"
sounded pretty impressive, though....

>
> I therefore content that the correct assessment is that there is *no
> consensus* in favour of this principle.
>
> > *We do not appear to have consensus on the following concept*:  /Without
> > in any way limiting the foregoing absolute prohibition, ICANN shall not
> > regulate services that use the Internet's unique identifiers, or the
> > content that such services carry or provide./
>
> The same attached comments express clear support for this concept, and
> in many cases explicit endorsement of the wording.
>
> The only criticism of it in the public comment was from the intellectual
> property stakeholders spread across BC/IPC.
>

This is actually incorrect; there where critical comments from DotMusic,
China Academy of ICT and, less directly, Jan Scholte.  Also, as Becky
noted, a number of the comments you cited actually cut both ways, in spite
of the selective quotes offered up.  Furthermore, I reject the
compartmentalization and marginalization of a wide variety of businesses,
to be dismissed as mere "intellectual property stakeholders".

 Finally, I, for one, am not a big fan of "regulation" of "content" as a
general matter; freedom to express opinions, freedom to be creative, and
freedom of the press are important (and entirely consistent with the
concerns of "intellectual property stakeholders"); rather, there are
specific and limited concerns at play here.  Unfortunately, bylaws tend to
be a blunt instrument and resistant to any nuance or balancing of concerns
in their drafting.  As such, while there may be a formulation that can meet
everyone's needs, we are unlikely to find it in this exercise in this time
frame.  We are particularly unlikely to find it, or harmony generally, if
this is turned into an "us vs. them" exercise.

>
> Since there is both broadly based support and the only objections to
> this principle come from a narrow segment of the community, I contend
> that the proper assessment is that this principle *has achieved
> consensus, stopping short of full consensus*.
>
> > Coordinating development, implementation, and enforcement of Consensus
> Policy, as defined by Specification 1 of the New gTLD Registry Agreement
> and Specification 4 of the 2013 Registrar Accreditation Agreement, is
> within ICANN’s Mission.
>
> Becky, I'm afraid the only person who keeps coming back to Specification
> 1/Spec 4 as an adequate statement of the bounds of the Mission is you.
> And whenever you do so, it is challenged.
>

Malcolm, I'm afraid that's incorrect.  I certainly see Consensus Policy as
an important cornerstone of ICANN's Mission, and actually a foundational
concept for ICANN.  While it may not fit to the boundaries of ICANN's
mission exactly, making, implementing and enforcing Consensus Policy is at
the heart of ICANN's mission.

There was support for that on the call and I'm sure there's significant
support for that in the CCWG and the community.

>
> I don't think you have any basis whatsoever for claiming that this group
> as a whole has selected these documents as its view of the best or most
> appropriate way to define or describe the parameters of the Mission, let
> alone the best mechanism for recording those parameters.
>

I actually agree we have not reached consensus on this point, but "these
documents" (as you dismissively term the Consensus Policy Specifications of
the RA and RAA)

are hardly the lonely and unloved "documents" you paint them as.  The
explicit concern of the interplay between Consensus Policy and this
proposed bylaw has been slow growing and was not recognized in the early
stages of this process, but it is a very real one.

>
> I contend that the text in the first and second public comment rounds
> has a much better claim to represent a consensus view of how to draw the
> bounds of ICANN's Mission in this area. Unlike those demanding further
> changes, I offer evidence in support of this claim, in the form of the
> attached document.
>

I would reject that contention.  The public comments did not consider, one
way or the other, the effect this Bylaw might have on Consensus Policy.  In
any event, 11 comments from a comment period of something like 115 comments
is hardly a "consensus" of anything (and as discussed above, certainly not
a consensus of the CCWG).  In any event, I actually don't think there is a
tension between protecting Consensus Policy and the concerns of those you
quote.  Frankly, I think if you asked most, if not all, of those commenting
whether there intent was to redefine Consensus Policy, their response would
either be "absolutely not" or "I had no idea that was going to happen" and
not "absolutely."

>
> It seems to me deeply regretable and contrary to our declared aims of
> transparency and inclusion to disregard both the general tenor and
> explicit recommendations of the public comment, and to allow vitally
> important last minute changes to be pushed through at the behest of a
> small group merely because that group has greater stamina for conducting
> a war of attrition.
>

I am not sure what group (much less, "small group") you are referring to,
but I would say first that the changes Becky has proposed are not at the
behest of "intellectual property interests"; second, (assuming you are
referrikng to "intellectual property interests" and casting me as such,
which is rather reductive) I don't view this as a war, much less a war of
attrition -- this should be a collaborative process (but if war is
preferable, I'm sure I can figure out what "war mode" is);
and third, as to stamina, my hat's off to you -- I still have two (no, it's
now three) recent emails of yours that I should respond to, but haven't yet
found the time to.

>
> Removing the widely popular restriction on ICANN's Mission would
> dishonour the public comment. For that reason, this group really ought
> not to support your proposal. Public comment replies should matter.
>

Of course, public comments do matter; we must take them into
consideration, and we have, but we are not enslaved by them.  The work of
the CCWG (or any WG) is dynamic and we don't "dishonour" Public Comments
generally by not adopting any particular suggestion in any particular
comment or set of comments.  Finally, I would question whether anything
that was supported in 11 out of 115 comments is "widely popular."

>
> There being no new proposal that has reached consensus and that still
> honours the public comment response, the only proper course is to
> proceed with the existing text. Those few that disagree may be invited
> submit a minority statement, should they wish to do so.
>

"Honoring the public comment response" is a newly invented criterion, which
I would suggest is both too vague and too restrictive to be adopted, at
least as suggested.  i would contend we have honored them by taking them
into consideration, and frankly, Becky's suggestion is still broadly
congruent with those comments, which is even more of an honor.

>
>
> Kind Regards,
>
> Malcolm.
>
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
>
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