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

[Malcolm Hutty]

On 15/01/2016 22:53, Burr, Becky wrote:
> I think this is a very useful discussion getting to the heart of the
> matter, so I would really like to encourage others to participate.

Thank you.

> Ok, but can ICANN enforce the part of the contract that says you can¹t
> register in the domain unless you are licensed by an appropriate
> authority?  I understand that having rules for allocating new TLDs is
> reasonably necessary to ensure the stability and security of the DNS, but
> I don¹t understand how enforcing that the registry licensing requirement
> is (in and of itself) UNLESS you say that the delegation (community
> preference) was made on the basis of that commitment, and enforcing the
> commitments underlying the delegation decision is an inherent requirement
> of the policy itself. I¹m grasping for a principle here.


To me, creating "community TLDs", that is, TLDs intended for the use of
a particular community, seems a clear case of things that are entirely
proper for ICANN to do as part of managing the root.

And "banks" seem a perfectly coherent community, such that it is
entirely reasonable for ICANN to seek to create a gTLD for the exclusive
use of banks.

Now it is proposed that domains in .bank should only be available to
entities with a state-issued banking license. How should we interpret this?

You ask:

> I understand that having rules for allocating new TLDs is
> reasonably necessary to ensure the stability and security of the DNS, but
> I don¹t understand how enforcing that the registry licensing requirement
> is (in and of itself)

I don't think it's specifically about stability and security (except in
the sense that some coordination is needed when new domains are
created). But nor do I consider it an attempt by ICANN to regulate the
behaviour of banks. What ICANN is doing, in the case of "only licensed
banks", is creating a rule for recognising what is a bank, and
distinguishing it from a non-bank. The need for some such rule is a
necessary collorary of the notion of having a community TLD at all; if
you can't find authority within the Mission for having such a rule,
there is no authority to create community gTLDs at all, never mind the
narrower questioning of whether licensing is a permissible requirement.

I'm going to assume that authority for ICAN Nto create new gTLDs, to
define a purpose for them, and to have serving a defined community as
one of the potential purposes, can be found in the general statement that:
"ICANN’s Mission is to coordinate the development and implementation of
policies: For which uniform or coordinated resolution is reasonably
necessary to facilitate the openness, interoperability, resilience,
security and/or stability [...]"

If not, we've a separate flaw we need to fix.


So if ICANN is to make .bank only available to banks, it needs to ask
itself, what is a "bank"? Is "A bank is an entity with a banking
license?" an acceptable definition for ICANN to adopt? I think it is.

For most people, a bank is any entity that has a banking license. If you
don't have a banking license, you simply cannot be a bank: Honest Joe's
Streetcorner Money Lending is not a real bank, and nobody is likely to
confuse Joe for a bank, irrespective of licensing. Could you set up a
proper bank without a license? Thanks to government regulation, this is
impossible in practice whether or not you believe it conceptually valid:
if you try, you'll be closed down overnight. So there's no such thing as
an unlicensed bank.

Now, from time to time some banks (as in any field) do things that they
are not supposed to do. In doing some of these things, they may risk
having their banking license removed. But mostly, they will just get
fined when caught, not delicensed (which means, closed down). Suppose
ICANN wrote those rules separately into the rules for .bank, and made
its own adjudication as to whether a particular bank had breached them,
and took their .bank domain away even though national authorities had
not taken away the banking license. I think this would be overreaching
by ICANN, of the sort we ought to constrain. Suppose instead that the
(relevant) government decided to punish serious misbehaviour with
removal of the only applicable banking license. That would effectively
close the bank down: were ICANN also to require the cancellation of the
relevant domain within .bank in such circumstances, that would not seem
to me to be an overreach.

This analysis shows that in the case of .bank using "is it licensed?" is
a reasonable rule of recognising for whether someone is indeed a bank.
It does NOT mean licensing - especially non-government forms of
accreditation - will automatically be a reasonable rule for recognising
members of different communities with differing characteristics.

Consider, for example, an application for .cloud, a domain intended to
be used by providers of cloud services, including consumer and
enterprise storage hosting. If that Registry suggested that all
registrants in .cloud must be licensed by "Greg Shatan's Copyright
Compliance Squad - Guaranteed Infringement Free", I don't think that's
merely a rule for recognising for what constitutes cloud storage; on the
contrary, by writing Greg Shatan CCS into the registry ICANN would be
writing a set of copyright compliance requirements for end registrants
at one step removed. So not identify members of the community, but
simply trying to control them.

Of course, this doesn't stop the Registry concerned from requiring all
registrants in their domain to sign up with Greg, but it's not ICANN's
job to adopt such a requirement.

For this reason I don't think "licensed entities only" is a
Get-Out-Of-Jail-Free card for ICANN. Whether it is a legitimate rule
depends on the context. For highly regulated sectors, it's likely to be
reasonable to say "If you don't have a license to practice
law/medicine/banking we don't consider you to be a real attorney/doctor
of medicine/bank, and for that reason not eligible to register in
.attorney/.doctor/.bank". In other cases, there is a much more
compelling argument that you can be a legitimate member of the community
without being licensed by the licensing authority ICANN has selected.
.GAY springs to mind: I can't think of any legitimate excuse for ICANN
to appoint an authority to "ensure registrants are legitimate members of
the Gay Community".
https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails/444

Anyway, I hope that answers your question. One final aside: I have been
speaking here about what I understand to be within and outside the scope
of ICANN's Mission, not just what is prohibited by the "prohibition of
regulation of services" clause. As that clause is narrowly drawn, some
of the things I have described would not be specifically prohibited by
that clause, but still (in my view) fall outside ICANN's Mission.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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