[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Malcolm Hutty malcolm at linx.net
Thu Jan 14 07:13:31 UTC 2016

On 06/01/2016 19:03, Burr, Becky wrote:
> Is attached in DRAFT FORM.  Anything missing or wrong should be
> attributed to incompetence rather than conspiracy.  I am still working
> on questions in 1 section.  I will also shortly resend a variety of
> previously circulated resource documents.


The slide deck you actually presented at meeting 75 contains three
propositions that were not contained in this draft deck you copied to
the list. I believe you described these in your oral presentation as
"strawman propositions for discussion". I am writing to react to those

"Proposition: The GAC may provide Advice on any matter it sees fit;
ICANN must duly consider such Advice in accordance with the Bylaws,
and if it decides to follow such Advice, must do so in a manner
consistent with ICANN’s Bylaws, including its Mission Statement."

I agree with this proposition.

"Proposition: ICANN’s agreements with contracted parties may reflect:
(a) bottom-up, consensus-based, multistakeholder policies on issues
for which uniform or coordinated resolution is reasonably necessary to
facilitate the openness, interoperability, resilience, security and/or
stability of the DNS; and (b) other provisions in service of that Mission."

I also agree with this proposition.

The third propostion you introduce with a question:

"To what extent should contracted parties be free to propose or
voluntarily accept (and obligated to comply with) contract
provisions that exceed the scope of ICANN’s Mission, e.g., to serve a
specific community, pro-actively address a public policy concern?

If “voluntary” commitments may exceed the scope of ICANN’s Mission,
how do you ensure that such commitments are truly voluntary?

Proposition: Individually negotiated commitments will be deemed to be
voluntary. Existing RA and RAA language (including standard PICs) are
“grandfathered” (as defined in Notes). Going forward, a mechanism
should be available to permit contracted parties to enter into
agreements without waiving the right to challenge (collectively) a
contract provision on the grounds that (a) it exceeds ICANN’s Mission
and (b) was extracted by ICANN on an other than voluntary basis."

I do not agree with this proposition, because I think the question you
pose to which it is offered as an answer is mistaken.

My reasoning is as follows:

Let us set aside the question of how to determine whether a particular
provision of a contract between ICANN and a Registry was arrived at
through "voluntary" means. Let us also set aside the vexed question of
whether the concept of a "voluntary commitment" is even meaningful in a
negotiation between an entity that has a critical input for its core
business and an entity that is the monopoly supplier of that critical input.

Let us consider instead: why do we care whether terms in Registry
contracts are "voluntary commitments"?

To put it another way, what is the wrong with ICANN imposing unwanted
terms on Registries?

It seems to me that the very notion of "voluntary commitment" must be
intended as a meaning of protecting Registries from unreasonable
impositions by ICANN. However the fear of ICANN making unreasonable
impositions on Registries is not the only or main reason why we want to
limit ICANN to acting within its Mission, so addressing the Mission
limitation through some definition of what constitutes a "voluntary
commitment" misses the point.

Limiting ICANN to its Mission is there to protect the entire community,
not just Registries. Concerning the so-called "regulatory prohibition",
that prohibition is intended primarily to protect the interests of
end-user registrants, not those of Registries. We should be just as
concerned if ICANN tries to exceed its Mission as a result of a
conspiracy between it and the Registries as we should if ICANN does so
as a result of some other motivation and then tries to impose
requirements on Registries without their approval.

Accordingly, I am afraid I cannot agree with either your third
proposition or the assumption on which it rests.

In your question you ask "To what extent should contracted parties be
free to propose or voluntarily accept (and obligated to comply with)
contract provisions that exceed the scope of ICANN’s Mission".

The answer to this is that contracted parties are not bound by ICANN's
bylaws, and so they are entirely free to enter into any contractual
relations they wish. However, ICANN is bound by its bylaws, and so is
not free to be the counterparty to a contract the purpose of which
exceeds or is in contradiction with the Mission or other bylaws

Incidentally, I would point out that there is nothing unique about the
Mission limitation. If we were to adopt the view that ICANN is free
enter into an agreement with Registries for purposes beyond the Mission
merely because the Registries were eager for it to do so, by the same
token ICANN could then also disregard any other provision of the Bylaws
that sought to constrain how ICANN acts provided that Registries
"voluntary" agreed to that. That cannot be acceptable to anyone, surely.

Kind Regards,

            Malcolm Hutty | tel: +44 20 7645 3523
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