[NCUC-DISCUSS] HR activists take note: A review of the draft bylaws on the mission, core values and commitments

[Mueller, Milton L]

THE PROPOSED NEW BYLAWS ON MISSION, CORE VALUES AND COMMITMENTS

We received the draft bylaws this morning. I have only had time to review Article 1, which is important because it contains the mission, etc. I advance my initial ideas and will get feedback here before posting to the CCWG or bylaws-coord list.

In general, the Mission, Core Values and Commitments bylaw language has been faithfully drafted to reflect the concerns of the CCWG. There are three major exceptions/problems. One is the section on renewals [Section 1.1, (d) (ii) F], the other two are Appendices G1 and G2.

Section 1.1 (d) (ii) F

"any renewals of agreements described in subsections (A)-(D) pursuant to their terms and conditions for renewal." This is an unacceptable deviation from the agreement we had regarding grandfathering. The idea was that _existing_ agreements would not be constrained by the new mission limitations, but that anything in the future would be subject to the new mission limitations. By extending existing exceptions or ambiguities into the future via renewals, we are making the new mission limitations practically irrelevant. We need to push to change this.

APPENDICES G1 and G2

The items in Appendix G are carve-outs from the mission limitations. That is, they expressly authorize certain actions as authorized and thus not challengable under the mission limitations. Therefore, we need to be extremely careful about what is included there. G1 refers to registrars, G2 to registries.

In G1, the bullet point on resolution of disputes exempts any and all ICANN policies regarding the USE of domain names. This broad exemption is unacceptable to NCSG. Furthermore, its meaning is unclear. I do not know what it means to say that dispute resolution is limited to disputes "regarding the registration of domain names (as opposed to the use of such domain names" and then to add "but including where such policies take into account use of the domain names)." The meaaning is unclear but we suspect it will be construed as a blanket exemption for imposing on registrars any policies regarding how domains are used, which could include content. I note that Appendix G2 applicable to registries does not contain this language. We want to get rid of it in G1 also.

The bullet point on cross-ownership restrictions needs to make it clear that restrictions are allowed only insofar as cross ownership affects the core values of security, stability or competition. That is, I see no basis for giving ICANN or the community a blanket right to restrict cross-ownership for any reason they want; such restrictions should only be used if they are a means to the end of promoting or preserving the mission or other core values, such as security, stability or competition. The best option would be to delete this part of the G! and G2 and make all cross-ownership policies subject to a mission challenge. Cross ownership policies that demonstrably advance the core vales of competition, security, stability, etc. should have no trouble passing this test; cross-ownership limitations that do not clearly meet this test should be subject to challenge.

The bullet points on "reservation of registered names" MUST be conditioned on respect for freedom of expression rights. I have no trouble with leaving names reservations in as a general exemption from mission challenges, but only if that power, which obviously can be abused or over-extended, is limited by concerns about openness, freedom and innovation on the Internet. Along these lines, we need to clarify the term "intellectual property" to say "legally recognized intellectual property rights."

Other Substantive issues
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Section 1.1 (a) (iii)
"Coordinates the allocation and assignment at the top-most level of Internet Protocol numbers and Autonomous System numbers." I thought IANA and IETF, not ICANN, do this. ICANN does it only insofar as it is contracted to be the IFO. Does this belong here?

Section 1.2 (a) (vi)
Please delete the words "that enhance ICANN's effectiveness." I don't see why these words are needed. They seem to undercut or make conditional the clear meaning of the first part of the sentence, which states that ICANN is accountable to its community through the mechanisms defined in the bylaws.

Section 1.2 (b) (vi)
modify the sentence to read: "governments and public authorities are responsible for public policy IN THEIR OWN JURISDICTION.."

Clarity, copy editing and redundancy issues:
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Section 1.1 (a) (i), first bullet point:
it says "facilitate the openness, interoperability, resilience, security and/or stability". No reason to have an "and/or" here, it should just be "and". We want them all, and in other parts of the bylaws where substantially the same list exists there is an "and."

Section 1.1 (a) (i), second bullet point:
"That are developed through a bottom-up consensus-based multistakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." This sentence should end at "multistakeholder process." The addition of "and designed to ensure the stable and secure operation of the Internet's unique names systems" is redundant, it is already stated in the first bullet point.

Section 1.2 (a) (i)
Needlessly awkward and confusing wording. Why not just say "Administer the DNS in a way that preserves and enhances its operational stability, reliability, security, global interoperability, resilience and openness." ?

Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology


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