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

Andrew Sullivan ajs at anvilwalrusden.com
Wed Jan 20 01:26:54 UTC 2016


On Wed, Jan 20, 2016 at 12:30:40AM +0000, Malcolm Hutty wrote:
> 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.

As I tried to state on the call today (alas, I think I was not
entirely coherent, so my apologies), I think even the above takes us a
little too far. I don't think Malcolm and I disagree too much here,
but I'm leery of the ratholes lurking under the cover "objectively
reasonable definition".  But I don't think we need to rely on it.

I believe that the reason ICANN has something to enforce in gTLD
contracts is because ICANN is making a decision [1] about delegating a
name from the root zone. ICANN makes that decision based on
information it has before it, including the various operational
constraints that an applicant is offering to undertake. Because this
is a matter of a contract between ICANN and some other party, ICANN
has the right and (at least arguably) responsibility to enforce the
terms of the contract. So, imagine someone applies for the TLD foobar
and claims that every registrant beneath foobar must bar foos, and
must be able to show that by virtue of the baz certificate they get
from Bob's Bait Shop and Notary on Main Street. Imagine that ICANN
agrees to this and delegates on that basis. In that case, that's what
ICANN has to enforce. Note that what ICANN is enforcing is someone
else's commitments on the basis of which ICANN did something (decided
to permit a delegation). For that state to persist, ICANN needs to
enforce the terms, or else admit that its policy control over the root
zone is meaningless because people can offer anything and then just
change their mind later.

I believe the tightened mission and new powers nevertheless conspire
to discourage such agreements. First of all, because of the clarified
mission, ICANN can (and should) use judgement to refuse to embroil
itself in some of these kinds of TLD schemes. The more the scheme
looks like, "We're going to impose rules on what people can do all the
way down the tree," the more ICANN should say, "We're not interested."
If a term can't effectively be enforced (and "carries down the tree"
rules can't be, in effect, without dedelgating the top of the tree),
ICANN should stay away. More generally, anything that takes ICANN far
afield of its narrow mission should be avoided.

But second, ICANN the corporation doesn't need to do that alone any
more, because the empowered community gives the corporation the
foundation from which to refuse such requests.  "We'd love to, but our
community doesn't want us to do those sorts of things and they wrote
the bylaws to prove it."  And if ICANN the corporation does not act
that way, and the community objects, the community will now have the
tools necessary to reign in such regulatory and contractual

"Oh," you may say, "But what if the community supports the foo
barring, and discriminates against foos and is generally bad?" I agree
that is a danger, but I claim there is no set of rules we could write
that will avoid that danger. The entire accountability effort depends
on the empowered community. If the community decides to neglect its
responsibilities in this area, then it will be impossible to ensure
such decisions don't get out of hand, regardless of what the decisions

Best regards,


[1] The mechanics of who actually performs the delegation by putting
the string in a zone file are not relevant to this.  As far as I know,
nobody disputes that ICANN gets to make the decision.

Andrew Sullivan
ajs at anvilwalrusden.com

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