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

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Thu Jan 14 17:03:05 UTC 2016

I share Malcolm's view of voluntary commitments.  Leaving aside what may
have gone before, allowing the parties to an agreement to contract around
binding limitations on their action would, effectively, nullify the
Mission-limitation principle that is at the core of the accountability
structure we are building.  I can live with grandfathering in prior mistakes
in this regard, if I have to, but it is essential that the line be drawn for
future actions in stone, not sand.


Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
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Link to my PGP Key

-----Original Message-----
From: Malcolm Hutty [mailto:malcolm at linx.net] 
Sent: Thursday, January 14, 2016 2:14 AM
To: Burr, Becky <Becky.Burr at neustar.biz>; Accountability Community
<accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

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 propositions.

"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

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 requirement.

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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