[Gnso-newgtld-wg] ICANN's Ability to Act (Without Using Predictability Model)

Jeff Neuman jeff at jjnsolutions.com
Mon Nov 2 00:38:26 UTC 2020

Thanks All.

Rubens and Justine are right in that we are not talking here about the security and stability of the DNS.  We are talking about the Application systems themselves.   If the Application System is down, or the system to file comments or objections, etc., yes applicants and the applicable system users (commenters, objectors) would be impacted.  But the everyday Internet user who doesn’t even know or care about who ICANN and IANA are will not be affected even in the slightest.

Therefore, this would not be an Empowered Community thing.  Plus, if you look at the difference between the wording of what ICANN Org stated (notice it was not the ICANN Board that stated this in their comments, but rather the Organization), it was to reserve the right to unilaterally take any action “related to security and stability as well as the proper functioning of systems” without going through the Predictability Model.  They don’t state the proper functioning of the “Internet Systems” which Anne rewrites below, but just of the “systems” themselves [referring to application systems].

That is an important distinction.

So, for those trying to keep track, the proposal is to add the following:

“With respect to its operation and administration of the systems, ICANN must retain the ability to act in emergency situations, including those where immediate action is necessary to remedy any service interruption, interference, service obstruction or other imminent threat to the systems; provided that ICANN provides notice to all impacted users of the affected system(s) as soon as reasonably practicable after such action has been taken along, and if such action involves any downtime to the system(s), it shall provide updates to impacted users as to when normal service can be restored.”

[cid:image001.png at 01D6B086.91824BF0]
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Justine Chew
Sent: Friday, October 30, 2020 9:53 PM
To: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] ICANN's Ability to Act (Without Using Predictability Model)

I agree with Rubens and prefer Jeff's proposed text. It behoves ICANN to inform impacted users of the affected system(s) so they can determine/take the necessary action in consequence. I can understand possible uncertainty over who such "impacted users" might be depending on the "affected system(s)" but I don't see the need to explicitly mention the Empowered Community representatives here.


On Sat, 31 Oct 2020 at 09:40, Rubens Kuhl <rubensk at nic.br<mailto:rubensk at nic.br>> wrote:

On 30 Oct 2020, at 20:37, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:

I don’t actually see any way for us as a WG to constrain the Board when it determines it needs to act based on the exercise of fiduciary duty by each individual member.  We did not choose a membership organization in the IANA transition.  We chose a non-profit corporation.  So the Board’s accountability is to the corporation, not to the community.

I think we would just have to say that “The foregoing notwithstanding, it is understood that the ICANN Board may need to exercise its fiduciary duty to act in emergency situations to address security and stability concerns, as well as to preserve the proper functioning of the Internet’s systems.  In such cases, the Board will notify all Empowered Community representatives in writing within 24 hours of taking such action.”

A security issue in the subsequent procedures program does not equate to a security and stability issue on the Internet identifiers system. For instance, when TAS had a breach, only new gTLD applicants and their information were affected.

As for the fiduciary duty to the corporation, its bylaws also foresee it acting in the public interest. So it's somewhat different from a corporation where the Board only has to do what's better for the corporation; so while existential threats to the corporation will require board members to preserve the corporation, even an action by a board member that creates more requirements to the corporation but fulfil its bylaw objectives are aligned with their fiduciary duties.

I don't see this workgroup or the GNSO creating new missions for the Empowered Community; I see only EC itself being able to do so.


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