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

[Malcolm Hutty]

On 04/02/2016 07:38, Bruce Tonkin wrote:
>  
> (b)     ICANN shall have the ability to negotiate, enter into and
> enforce agreements with contracted parties in service of its Mission,
> including PIC Specifications.

It's a small point, but I think the word order is wrong here.

As written, this would add anything in a PIC Specification to ICANN's
Mission.  Amongst other problems, this would be in direct conflict with
the Board's own view that the Mission should not be defined by the terms
of external documents.

I would therefore suggest the following adjustment:

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

Is that agreeable?

> 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
[...]
> It is inappropriate to include within ICANN’s mission a
> prohibition on regulation, when ICANN is not a regulator.

I'm really not too bothered about terminology. Semantic quibbling over
whether ICANN "is a regulator" is beside the point. The intent of this
provision is to prevent ICANN from trying to use its power "at the top
of the DNS tree" to control people "further down the tree" (as Andrew
puts it) in ways that have no connection to ICANN's Mission.

Whether you call that "regulation" or come up with some other term
doesn't matter: it's still an abuse of ICANN's position, and must be
prevented.

>  
> Rationale on Grandfathering:
[...]


> 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.  

We are not "suggesting" that. We are catering for the possibility that
you might be alleged to have exceeded the Mission in the period when you
could not effectively be held accountable for that by immunising you
from challenge for actions taken during that period - while ensuring
that you can be held accountable for any future such violations.

This is a middle ground compromise between two positions
i) to ensure that the new accountability provisions could be used to
hold you accountable for previous violations as well as future ones; or
ii) (this compromise) to ensure that the new accountability provisions
can be used to hold you accountable for new violations, but not for any
that might have been committed in the past; or
iii) to ensure that you can never held accountable for any such
violations, past or future.

I can see why the first option might be thought better than our
compromise, but we have decided to prefer stability over purity. The
third option we were surely correct to rule out; it is simply
inconsistent with the fundamental premise of this entire accountability
exercise.

If you ask us to take out the grandfathering provision, that will leave
us with the first option. I don't think you want us to do that.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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