[CCWG-ACCT] Board comments on Recommendation 5 - Mission Statement

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Thu Feb 4 07:38:06 UTC 2016

Hello All,

Recommendation 5 - Mission Statement

On the mission statement, the Board supports the core principles that:

(a)      ICANN shall not impose regulations on services that use the Internet's unique identifiers, or the content that such services carry or provide.

(b)     ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications.

The drafting of the bylaws related to these principles will need to take into account the comments that the Board has previously expressed around use of terms such as "regulations", when ICANN is not a regulator, and the exact definitions of terms such as "services", so as not to exclude services such as domain name registration and domain name registry services.    It is inappropriate to include within ICANN's mission a prohibition on regulation, when ICANN is not a regulator.

We remain concerned about the grandfathering discussion and the potential limitations to ICANN's contracting and enforcement abilities.

Rationale on Grandfathering:

The Board's concerns with the recommendation to include "grandfathering" language within ICANN's Mission remain.  These concerns exist notwithstanding the words used to describe the concept of "grandfathering".  First, as the CCWG-Accountability has continually affirmed, the CCWG-Accountability recommendations are not intended to change ICANN's mission.  To this end, any suggestion that ICANN's contracting ability with registries and registrars will be changed as a result of the CCWG-Accountability's work is inconsistent and troublesome.  The Board does not agree with the inference, and it does not benefit ICANN or the ICANN community to suggest, that ICANN has previously entered into contracts that go beyond its mission.  This introduces uncertainty and instability into ICANN's work.

Second, grandfathering - no matter when the CCWG-Accountability wishes to impose a cut off - could result in inconsistent contracting among different parties and raises the question of unequal treatment among contracted parties.

Finally, the uncertainty around the concept of grandfathering, and the level of detail needed to try to address that uncertainty, has carried the CCWG-Accountability beyond the clarification of ICANN's mission that was anticipated as part of this WS1 transition work.  This level of detail is beyond the scope of ICANN's readiness for the transition, and creates opportunities for vagueness and challenge that could be introduced into ICANN's contracts.

The Board understands that one of the concerns driving this discussion is a confirmation that the PICs would remain enforceable.  As a result, the Board proposes that a reference to the viability of the PICs be added to the proposition "ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission, including PIC Specifications."


Bruce Tonkin

ICANN Board Liaison to the CCWG

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