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

Malcolm Hutty malcolm at linx.net
Wed Jan 20 00:30:40 UTC 2016

On 19/01/2016 23:39, Burr, Becky wrote:
> I don’t see how this is ICANN deciding what constitutes a bank.  An
> applicant proposed a definition - you need a license that has the
> following characteristics - and ICANN accepted the applicant’s commitment
> to limit registration to entities possessing the necessary credentials.

Milton and I appear to have diverged, but speaking for myself, I think
your reasoning is problematic, Becky.

If the justification were that "the applicant proposed the definition",
then you devolve to the Shatan position that ICANN's Mission extends to
pursuing anything an applicant proposes. I don't think that is
sustainable. The better reasoning is that what the applicant proposed in
this case is

(1) that .bank be limited to legitimate, recognised banks in the
financial sense; and
(2) that we recognise who falls into that category by whether they have
a banking license

and that item 1 is a legitimate choice as an exercise of ICANN's
authority within its Mission, and that (2) is an objectively reasonable
definition for ICANN to adopt as part of implementing that choice.

I'd also like to note the opinion of our independent counsel on this
issue. They have just advised, in the context of ICANN's Mission in
respect of IP addresses, that it is inappropriate to craft ICANN's
Mission by reference to an external document that might (conceivably)
change, namely the ICANN-RIR-NRO MoU - even though that document is
highly stable and most unlikely to change. How much worse must it be to
delimit ICANN's Mission by reference to a myriad of registry contracts,
including innumerable ones yet to be written.

            Malcolm Hutty | tel: +44 20 7645 3523
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