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

Robin Gross robin at ipjustice.org
Thu Feb 4 22:08:25 UTC 2016

I agree with Malcolm’s points.


> On Feb 4, 2016, at 12:27 AM, Malcolm Hutty <malcolm at linx.net> wrote:
> 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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