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

Fri Jan 15 15:00:01 UTC 2016

Hi,

While I agree with the principle that commitments need to be voluntary
and the coercion is reason for contract nullification,  I also think it
is a matter of law to define coercion.

I would also argue that the PICs, the example under discussion, were not
a matter of coercion, certainly not in any criminal sense.  Not everyone
made such commitments and those did go forward.  On those commitments
that were imposed after the policy and initial contract had been set and
then changed for the so-called regulated industries, while I deplore the
fact that those were set without proper ICANN process and would consider
it a process error, I do not believe that this was coercion.  For better
or worse, this sort of back and forth of requirements is a normal part
of contract negotiation.  The applicants could have refused and fought
it.  They made a business decision that for financial reasons made sense
to them and then decided whether to fight or sign.

I also do not agree that PICs  necessarily constitute mission creep,
whatever that might actually mean - Yet Another Undefined Term (YAUT)
and something that is in the eye of the beholder, or a possible future 
IRP. On PICS, I think the problem is a process error and one that could,
in the future,  be challenged based on the Articles change on requiring
bottom-up multistakeholder process based decisions.    Something like
this could become a IRP action in a possible future, assuming we succeed
in this accountability process.

avri

On 15-Jan-16 09:16, Matthew Shears wrote:
> + 1 Paul, Malcolm, Robin
>
> On 14/01/2016 17:35, Robin Gross wrote:
>> 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.
>>
>> Robin
>>
>>
>>> 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
>>>    Head of Public Affairs | Read the LINX Public Affairs blog  London
>>> Internet Exchange | http://publicaffairs.linx.net/
>>>
>>>                  London Internet Exchange Ltd
>>>        Monument Place, 24 Monument Street, London EC3R 8AJ
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>>>
>>>
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