[CCWG-ACCT] "Christmas trees" and "Consumer Trust" in Article 1 of the Bylaws

Nigel Roberts nigel at channelisles.net
Wed Jan 13 19:10:18 UTC 2016

This is almost certainly the correct view.

On 13/01/16 19:01, Burr, Becky wrote:
> Come on Avri - I could say that we don’t have sufficient cause - let alone
> authority - to amend the AoC, but I don’t think that moves the ball
> forward.  Rather, and respecting the integrity and good intentions of
> people on various sides of this argument, we have a strong disagreement
> about the meaning of the AoC on the consumer trust issue.
> One group reads Paragraph 3 as a “chapeau” text introducing Paragraph 9.3,
> in which the consumer trust issue is exclusively limited to TLD expansion
> and calls for a review on the subject. I, along with many others, acting
> in good faith believe that this is unquestionably the proper reading of
> the AoC.
> I understand that another group reads Paragraph 3 as creating a separate,
> stand-alone and generalized obligation to promote consumer trust in the
> DNS marketplace that should be reflected in Article 1 of the Bylaws.
> I accept that this reading is taken in good faith, but I believe it is
> inconsistent with standard principles applicable to textual
> interpretation, let alone statutory construction, and an extraordinary
> expansion of ICANN’s remit.  I know what protecting and promoting
> “consumer trust” means to a consumer protection regulator with sovereign
> authority.  I don’t think that’s ICANN’s job - although I do agree that
> the AoC gives ICANN specific obligations in this regard in connection with
> TLD expansion.  That is being transposed into the Bylaws.
> But if we cannot reach consensus about charging ICANN with a general
> obligation with to promote consumer trust in the DNS marketplace - which
> apparently we cannot - then we need to find a way to proceed, unless
> everyone just wants to keep repeating their views and casting aspersions
> about the good faith of people with different views.  So, my suggestion is
> WS2.
> J. Beckwith Burr
> Neustar, Inc. / Deputy
> General Counsel & Chief Privacy Officer
> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
> Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz
> <http://www.neustar.biz>
> On 1/13/16, 12:12 PM, "Avri Doria" <avri at acm.org> wrote:
>> Hi,
>> In this case, I do not believe we will have sufficient cause to request
>> that the AOC be cancelled by mutual agreement.  If all of the AOC
>> concerns can't be brought into the bylaws, then they can't be said to be
>> covered by the the By Laws.
>> Of course ICANN can still unilaterally abandon the AOC.
>> I also think we may need to be much more careful to make sure we have
>> agreed upon definitions for all terms in the By Laws and not just those
>> that belong to concepts some people are not comfortable with.  I know
>> there are some terms for which I have not been absolutely sure of the
>> meaning and on which we have never had real dialogue.  For example in an
>> international context what do we really mean by 'promote',
>> 'competition', and 'consumer choice'.  I know I am not comfortable with
>> the way some people define these terms.  What are our criteria for these
>> terms and for knowing when we have achieved them?  How can a review
>> decide that we have adequate global competition?  How active do we need
>> to be about promoting competition, especially in a global context with
>> economies that have different capabilities.  How much choice is
>> sufficient consumer choice?  I do not believe we have any better idea,
>> or have had adequate dialogue and consensus on the meaning of these
>> terms and concepts.  I do believe we  generally understand them as well
>> as we understand consumer trust, but not better.
>> I am also sure I can find lack of dialogue and ambiguity on many other
>> terms used in the By Laws.  Is that the process we must now open up?
>> Lastly I think it is in the process of the multistakeholder AOC type
>> reviews that we work on our evolving consensus definitions.  I am
>> certain that we now have a much deeper understanding of Accountability
>> and Transparency after the two ATRT reviews than we did before those
>> reviews.
>> avri
>> On 13-Jan-16 10:59, Burr, Becky wrote:
>>> I understand your point Avri, but (as I said, unlike the HR issue) we
>>> have
>>> had no real dialogue on what ³consumer trust² encompasses (outside of
>>> the
>>> new gTLD review context), so it seems to me that moving the issue to WS2
>>> is the only possible approach.
>>> J. Beckwith Burr
>>> Neustar, Inc. / Deputy
>>> General Counsel & Chief Privacy Officer
>>> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
>>> Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz
>>> <http://www.neustar.biz>
>>> On 1/12/16, 5:42 PM, "Avri Doria" <avri at acm.org> wrote:
>>>> Hi,
>>>> Not sure I buy into the Xmas tree analogy, especially when trying to
>>>> delineate values.
>>>> And while I have not had to make this argument in a while, I still
>>>> maintain that as a vassal of the NTIA, ICANN would have been
>>>> constrained
>>>> to respect human rights and that the loss of NTIA forces us to take
>>>> some
>>>> responsibility for that as a corporation, especially in regard to an
>>>> open Internet.
>>>> I still find it rather shocking and depressing that many, including our
>>>> Board are fighting against human rights so hard at iCANN.  Option 2b
>>>> would be a travesty and 2c is just a fig leaf, better than nothing, but
>>>> barely.
>>>> As for consumer trust, that may be a similar situation.  NTIA has shown
>>>> by its participation in the AOC how much it cares about consumer trust,
>>>> and I think that if the complaints against ICANN for consumer issues
>>>> got
>>>> any worse than they are, we would hear about from the NTIA and it
>>>> would
>>>> be a consideration for any IANA renewal.  I would hope that they would
>>>> reject any plan that did not promise an effort to maintain and improve
>>>> ours.
>>>> avri
>>>> On 12-Jan-16 16:30, Andrew Sullivan wrote:
>>>>> On Tue, Jan 12, 2016 at 07:08:20PM +0000, Burr, Becky wrote:
>>>>>> The language on human rights would be a departure from that
>>>>>> standard, and the introduction of a generalized ³consumer trust² role
>>>>>> would be yet another.  Apart from these two concepts, all of the
>>>>>> assigned roles and responsibilities appear in ICANN¹s existing
>>>>>> Bylaws, Articles of Incorporation, and the White Paper itself.
>>>>> I think the above is an important argument, and it takes on more
>>>>> importance when we reflect on previous observations from the NTIA that
>>>>> this accountability work ought not to be an opportunity to remake
>>>>> ICANN.
>>>>> Best regards,
>>>>> A
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