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

Robin Gross robin at ipjustice.org
Thu Jan 14 17:35:09 UTC 2016

I agree with Paul and Malcolm regarding so-called ‘voluntary’ commitments.  We can limit the pressure on ICANN to expand its mission by not creating a loophole in the accountability structures that allows mission creep.  And I agree that the limiting principle is a key foundation for our work.


> On Jan 14, 2016, at 9:03 AM, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com> wrote:
> 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.
> Cheers
> Paul
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com 
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> 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.
> Becky,
> 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
> 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 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.
> -- 
>            Malcolm Hutty | tel: +44 20 7645 3523
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