[Gnso-epdp-team] On the subject of ICANN's Bylaws...

Mon Aug 12 16:39:48 UTC 2019

Milton, aren’t you and Greg (in this narrow topic) saying compatible things?

  *   MiMu:   Public interest is to be determined within MSM
  *   GrAa:    Let’s discuss this topic within EPDP

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Mueller, Milton L
Sent: Monday, August 12, 2019 9:33 AM
To: Greg Aaron <greg at illumintel.com>; gnso-epdp-team at icann.org
Subject: Re: [Gnso-epdp-team] On the subject of ICANN's Bylaws...

All:
Let me provide some background about Greg’s favorite section of the bylaws. He is fixated on the presence of three words he likes (global public interest) and not the actual meaning of the section.

That core value emerged from a debate about the extent to which “the global public interest” was a meaningful guide to policy making. Those of us with extensive experience with regulatory systems around the world know that “public interest” is a blanket term that can be used to justify almost anything, from completely shutting down the internet to martial law to rate regulation. We knew as we were debating this that anyone can, and everyone does, claim that whatever policy they want is “in the public interest.” We did not want the Board to have the discretion to “divine” the public interest and use that divination to make policy unilaterally. There was, therefore a desire to carefully limit and bound public interest claims.

Now look at what 1.2(b)iii actually says. It does NOT say that ICANN’s authority over Internet activity pertains to anything and everything that might be in the global public interest. It says that insofar as an ICANN policy is determined to be in the public interest, it must be so determined by a _bottom up, multistakeholder policy process_ and that such process must be _accountable and transparent_.

In other words, this section of the bylaws only tells us _how_ the public interest in any given policy domain is to be ascertained. It does not expand ICANN’s mandate to include anything anyone thinks might be in the public interest.

--MM

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org<mailto:gnso-epdp-team-bounces at icann.org>> On Behalf Of Greg Aaron
Sent: Monday, August 12, 2019 10:41 AM
To: 'James M. Bladel' <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>; gnso-epdp-team at icann.org<mailto:gnso-epdp-team at icann.org>
Subject: Re: [Gnso-epdp-team] On the subject of ICANN's Bylaws...

Dear James:

Thank you for your note.  I can only speak to the comments I made in Thursday’s call.  I did not reference ICANN’s Bylaws about  “Competition and Consumer Trust” at all.  Your references to Bylaws 4.6 are not relevant to my comments.

Some members had stated that the ALAC use case should not even be discussed, because its premise is out of ICANN scope.  I stated that it’s our obligation to talk about such issues.  I referenced Bylaws 1.2(b)iii  -- in  the Core Values section – which says that the point of  ICANN “policy development and decision-making [is]  to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent”.

My point was that as policy-makers, we are all obliged to apply that principle, especially since this working group is making decisions that will affect millions (if not billions) of people.  It is a reminder for us to keep the big picture in mind, and that we’re here to ascertain what’s good for the Internet and discern what options exist within the law to serve that greater purpose.  The SSAC has previously encouraged the ePDP to consider the impacts on how registrants and users interact for contactability, problem-solving, the avoidance of fraud, etc.

In any case, the CCT Reviews you reference in Bylaws Section 4.6(d) are not the place to shunt all items that involve public impacts.  According to the Bylaws, the CCT Reviews exist to examine only a limited set of things – basically CCT issues coming out of the new gTLD program.  Instead, any PDP can consider impacts on registrants and users as those issues come up within a WG’s charter.  AFAIK our charter does not prohibit such.

Your points below about alternate means are a contribution to the substantive debate, and thanks for them.  But again, we can only have that debate if we all remember our main decision-making principles, and if issues are on the table in the first place, rather than kept off the table for some reason.

All best,
--Greg

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org<mailto:gnso-epdp-team-bounces at icann.org>> On Behalf Of James M. Bladel
Sent: Friday, August 9, 2019 11:47 AM
To: gnso-epdp-team at icann.org<mailto:gnso-epdp-team at icann.org>
Subject: [Gnso-epdp-team] On the subject of ICANN's Bylaws...

Good morning, Colleagues-

During yesterday’s call, a few folks mentioned that ICANN’s Bylaws contain commitments to uphold “Competition” and “Consumer Choice/Consumer Trust”.   These references to the Bylaws were offered in support of the proposed Use Case that RDS data should be a primary resource for consumers who are seeking to verify the operator of a website, or check the reputation of business, or to dispute a commercial transaction.

For clarity, it’s worth noting that the predominant context for “competition” in ICANN’s Bylaws is specific to the domain name industry, esp. Registries and Registrars.  And this makes sense, given that the industry prior to ICANN had no concept of “competition” or “consumer choice”; all domain transactions were handled by a single provider.

Additionally, mentions of “consumer protection”, “consumer choice”, and “consumer trust” within the Bylaws are contained within Section 4.6(d), which outlines the “Periodic Reviews”, and are an element of the 2012 New gTLD program.  These sections were ported to the Bylaws from the Affirmation of Commitments, and were drafted when many feared that new gTLDs would confuse consumers and undermine trust/confidence in the DNS.

Taken together, it’s not correct to conclude that WHOIS/RDS data is intended to replace or preempt more widely recognized alternative tools for online consumers, like:

  *   SSL certificates, verified by Certificate Authorities (CA) and supported by all modern browsers
  *   Trust certificates (issued by organizations like the Better Business Bureau, Trustwave, McAffee, SiteLock, and card processors like Visa/Mastercard)
  *   Reputation/review services like Google ratings, Yelp, and Facebook or Amazon reviews, and
  *   The “About Us” or “Contact Us” or “Customer Support” links on merchant websites, which are omnipresent for legitimate businesses and required by law in many areas.

But if this is still a point of divergence among the EPDP members, then perhaps we could consult ICANN Legal about the extent of their “Competition” and “Consumer Trust” mandate, and whether they believe ICANN is on the hook for the integrity & consumer satisfaction for all commercial activity taking place anywhere on the Internet.

J.

-------------
James Bladel
GoDaddy

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