[CCWG-ACCT] Minority statements inclusion in report

David Post david.g.post at gmail.com
Tue Dec 1 00:04:22 UTC 2015


At 06:03 PM 11/30/2015, Silver, Bradley wrote:
>David,
>
>I am having some trouble understanding your 
>examples below.  Is your concern with the 
>grandfathering of the RAA that it would give 
>ICANN total freedom in deciding how to respond 
>to enforcing provisions like 3.18 – even such 
>enforcement was clearly not consistent with its stated mission?

Yes, that is a very, very serious concern.  I 
don't know if I'd say it gives ICANN "total 
freedom", but close to it.  If we're 
grandfathering in the agreements, then ICANN's 
actions to enforce the terms of the agreements 
could be seen as having been "grandfathered in" 
as well, and - as Becky's defamation example, and 
my fraud example, show - that would encompass 
many things that we would all agree (I think) are OUTSIDE the Mission.

>  Or do you believe that to the extent any 
> enforcement by ICANN of provisions like 3.18 
> that touch on illegal activity that implicates 
> “content” would take such a provision 
> outside the mission?   If it’s the latter, 
> then it appears you are attempting to achieve a 
> retrospective amendment of the RA and RAA – by 
> redeffining “illegal activity” or 
> “activity contrary to applicable law” to 
> specifically exclude any activity which relates 
> to the content associated with the Registered Name. Â Â

Yes, I believe this as well.  I thought we had 
widespread agreement on that.  To the extent 
enforcement by ICANN of provisions like 3.18 
touch on illegal activity that implicates content 
is outside the mission.  The Proposal clearly 
says:  "ICANN’s Mission does not include the 
regulation of services that use the Domain Name 
System or the regulation of the content these 
services carry or provide."  If enforcement of 
the the provision (again, like the 
defamation/fraud examples) touches on "illegal 
activity that implicates or relates to content, I 
do not believe that ICANN can impose obligations 
(directly or indirectly) on domain name holders 
with respect to that content.  The RAA ad the RA 
appear to allow them to do that - which is why we 
need to clarify that they're not "grandfathered" in.

It's funny, because a few hours ago you wrote:

>BS:  I cannot imagine how anyone could force 
>ICANN to interpret and enforce 3.18 or any other 
>provision in a manner that doesnt comport with 
>ICANN’s mission, particularly since we have 
>language that says: ICANN shall act strictly in 
>accordance with, and only as reasonably appropriate to achieve its Mission

You couldn't imagine doing that - but that's 
exactly what you're now, no?  You seem to be 
saying that ICANN may, through provisions like 
3.18, deprive name holders of their registered 
names if their illegal activity implicates 
content - even though we have language that says, 
clearly (I thought), that ICANN may not regulate content.

This is precisely what I am concerned with, and 
what I would hope we're all concerned 
with:  Using the existence of the (grandfathered) 
RA/RAA to allow ICANN to regulate content.  You 
are convincing me that this is what you intend 
with the "grandfather" language.  If I'm wrong 
about that, I'd be interested to know how I'm 
wrong and, as I asked earlier, what you think the 
"grandfather" language accomplishes.

I don't think I'm proposing a "retrospective 
amendment" of the RA and the RAA - more like a 
belated overturning of an abuse of ICANN's monopoly power.

I believe we need to insist on a Mission 
Statement that would negate any use of ICANN's 
monopoly power to impose an obligation on 
registrars to revoke domains based on allegations 
of illegal content.  Far from persuading me that 
my reading of the grandfather in" language is 
"absurd," you are persuading me that it is 
precisely what you (ad perhaps others) have in 
mind - which illustrates the need for clarification.

David

>From: 
>accountability-cross-community-bounces at icann.org 
>[mailto:accountability-cross-community-bounces at icann.org] 
>On Behalf Of David Post
>Sent: Monday, November 30, 2015 5:30 PM
>To: Burr, Becky
>Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas 
>Rickert; Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>At 01:55 PM 11/30/2015, Burr, Becky wrote:
>
>First, we discussed this on several calls (3 or 4), including the last.
>Second, on a more substantive note, it is 
>completely absurd to suggest that grandfathering 
>the language of existing contracts permits ICANN 
>to enforce any contract term in any way it likes 
>and to claim the protection of the picket fence 
>forever going forward.  Simply put, the drafters 
>are instructed to ensure that the provisions of 
>existing contracts are enforceable by their 
>terms.  As I said on this very topic recently:
>
>Beyond that, the language of 3.18 in question 
>imposes obligations on registrars – maintain ann 
>abuse point of contact, invesstigate allegations 
>regarding illegal activities, take appropriate 
>action, so I don̢۪t think that amounounts to 
>regulating registrants.  I also agree that there 
>are situations in which illegal activity could 
>impact the stability and security of the 
>Internetâ€ââ„¢s unique identifiers (e.g., 
>particularly involving malicious DNS exploits, 
>etc.), so the provision seems to me to be 
>appropriate in furtherance of ICANN’™s Mission.
>
>The problem, of course, is that not all illegal 
>activity threatens the stability and security of 
>the DNS; behavior that is illegal in some 
>jurisdictions is not illegal in all 
>jurisdictions;  and the legality/illegality of a 
>particular activity is generally a determination 
>left to sovereigns or courts.  So, what 
>constitutes an “ approropriate responseâ€Â 
>is going to vary from case to case. 
>Theoretically, ICANN could choose to enforce the 
>requirement in a manner that exceeded the scope 
>of its authority, e.g., it could begin to say 
>that registrars who do not suspend registrations 
>in response to allegations that an underlying 
>site is defamatory are in breach.  But I think 
>3.18 itself is a legitimate contract provision 
>that ICANN should be able to enforce.
>
>But that's the problem, right there.  You say 
>that if ICANN "exceeds the scope of its 
>authority" if it "begins to say that registrars 
>who do not suspend registrations in response to 
>allegations that an underlying site is defamatory are in breach."
>
>But why is it so obvious that this exceeds the 
>scope of its authority?  You will say:  because 
>we have said elsewhere that ICANN shall not 
>regulate content, and this regulates content.
>
>But it is not far-fetched for someone to suggest 
>that the "grandfathering" language modifies 
>that, and was included precisely to make it 
>clear that enforcing the provisions of existing 
>agreements is WITHIN ICANN's authority.  Under 
>existing agreements, Registrars are already 
>obligated to provide "consequences ... including 
>suspension of domain name registrations" for 
>"activities contrary to applicable 
>law."  Defamation is an "activity contrary to 
>applicable law."  Suspending registrations in 
>response to allegations that an underlying site 
>is defamatory is thus within the scope of 
>(existing) agreements.  If those agreements are 
>grandfathered in, it looks to me like we're 
>saying that when ICANN acts as it is authorized 
>to do within the existing agreements, it is 
>acting within the scope of its authority.
>
>David
>
>
>
>
>
>
>J. Beckwith Burr
>Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
>1775 Pennsylvania Avenue NW, Washington D.C. 20006
>Office: +1.202.533.2932  Mobile: +1.202.352.6367 
>/ <http://www.neustar.biz>neustar.biz
>
>From: David Post <<mailto:david.g.post at gmail.com>david.g.post at gmail.com >
>Date: Monday, November 30, 2015 at 1:32 PM
>To: Accountability Community 
><<mailto:accountability-cross-community at icann.org> 
>accountability-cross-community at icann.org>
>Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" 
><<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU> 
>NCSG-DISCUSS at LISTSERV.SYR.EDU>, Thomas Rickert 
><<mailto:thomas at rickert.net>thomas at rickert.net>, 
>Accountability Community 
><<mailto:accountability-cross-community at icann.org> 
>accountability-cross-community at icann.org>
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>
>The current Proposal (Annex 5 para 21) states in 
>a "Note":  "For the avoidance of uncertainty, 
>the language of existing registry agreements and 
>registrar accreditation agreements should be grandfathered."
>
>I don't believe any of the previous circulated 
>drafts contained this language, and in my 
>opinion it represents a very serious, and very 
>substantial, step backwards in this process.
>
>To begin with, it is not clear what 
>"grandfathering" these agreements mean.  One 
>possible implication is that everything within 
>the existing agreements is within ICANN's 
>Mission - or to put it differently, that the 
>language of the Mission Statement should be 
>interpreted in a manner such that all provisions 
>of the existing agreements are inside the 
>"picket fence" of ICANN's enumerated powers. The 
>opposite implication is possible, too - that 
>there are elements of the existing agreements 
>that are NOT within the Mission, but which are 
>nonetheless being "grandfathered" in so that 
>they will not be invalidated in the future 
>(notwithstanding their inconsistency with the Mission).
>
>I believe that the former interpretation may be 
>the one that is intended - and I strongly 
>disagree with that, and strongly dissent. The 
>existing agreements contain a number of 
>provisions that are outside the scope of ICANN's 
>powers as we have defined it in the Mission 
>Statement.  One most prominent example:  In 
>Specification 1 of the new gTLD Registry 
>Agreement, Registry operators agree to a set of 
>mandatory "public interest commitments" - PICs - 
>and to adhere to "any remedies ICANN imposes 
>(which may include any reasonable remedy, 
>including for the avoidance of doubt, the 
>termination of the Registry Agreement pursuant 
>to Section 4.3(e) of the Agreement) following a 
>determination by any PICDRP panel and to be bound by any such determination."
>
>Among the mandatory PICs, the Registry operator 
>must "include a provision in its 
>Registry-Registrar Agreement that requires 
>Registrars to include in their Registration 
>Agreements a provision prohibiting Registered 
>Name Holders from ... engaging in activity 
>contrary to applicable law, and providing 
>(consistent with applicable law and any related 
>procedures) consequences for such activities 
>including suspension of the domain name."
>
>Prohibiting domain name holders from "engaging 
>in activity contrary to applicable law" is NOT 
>within ICANN's scope as defined in the Mission 
>Statement.  It is neither a matter "for which 
>uniform or coordinated resolution is reasonably 
>necessary to facilitate the openness, 
>interoperability, resilience, security and/or 
>stability of the DNS," nor was it "developed 
>through a bottom-up, consensus-based 
>multi-stakeholder process and designed to ensure 
>the stable and secure operation of the Internet̢۪s uniqueque names systems."
>
>ICANN should not have the power to revoke, or to 
>impose on others the requirement that they 
>revoke, anyone's continued use of a domain name 
>because they have "engaged in activity contrary 
>to applicable law."  Such a provision would 
>appear to allow ICANN to do what is, elsewhere, 
>flatly prohibited: to impose regulations on 
>content.  Activity contrary to applicable law 
>includes activity that (a) violates consumer 
>protection law, (b) infringes copyright, (c) 
>violates anti-fraud laws, (d) infringes 
>trademarks, (e) violates relevant banking or 
>securities laws, etc. etc. etc.  At best, this 
>provision is flatly inconsistent with the 
>prohibition against regulating content.  At 
>worst, it can be interpreted to provide an 
>"exception" to that prohibition - an exception 
>that will swallow up the prohibition in its entirety.
>
>David
>
>At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
>
>FWIW, Robin’s dissent nt is fully in line 
>with th the official comments submitted by the 
>Noncommercial Stakeholders Group during the last public comment period.
>--MM
>
>From: 
><mailto:accountability-cross-community-bounces at icann.org>accountability-cross-community-bounces at icann.org 
>[ 
>mailto:accountability-cross-community-bounces at icann.org] 
>On Behalf Of Robin Gross
>Sent: Sunday, November 29, 2015 6:41 PM
>To: Thomas Rickert
>Cc: 
><mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org 
>Community
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>Thanks, Thomas.  See below.
>
>Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
>
>The CCWG-Accountability make a number of helpful 
>recommendations to improve organizational 
>accountability at ICANN, however one aspect of 
>the plan is deeply flawed: changing the role of 
>ICANN's Governmental Advisory Committee (GAC) 
>from purely an “advisoryâ€Â role to a 
>†⬠“decision makingâ€Â 
>role over fundamentaental matterers at ICANN, 
>including its governance.  Consequently the 
>proposal marginalizes the role of Supporting 
>Organizations (SO’s) compared to 
>todaoday’s ICANN goveNN governance 
>structure.  p; The degree of governmental 
>empowerment over ICANN resulting from the 
>proposal’s cs community mechanhanism is 
>dangerous to the success of the proposal‬™s 
>political acceptance as well as to its 
>ultultimatte impact on a free and open Internet.
>
>The creation of a community mechanism to hold 
>ICANN accountable on key issues made a critical 
>error by departing from the existing power 
>balance between SO’™s and nd AC’s as 
>determined by relative boardard 
>appointments.ts.  Instead, the proposed 
>community mechanism elevates the AC’s 
>relative to thethe SO’s compared wpared 
>with today’s b¬â„¢s balance on ICANN's 
>board of directors,rs, which does not currently 
>provide a decision making role to GAC, and which 
>retains the primacy of the Supporting 
>Organizations on key decisions, particularly 
>those within the SO’s mandate.   The 
>devaluing of tf tf the Supporting Organizations 
>in ICANN’s key dy decisiosions was a common 
>theme in both previous public comment periods, 
>however the recommendations not only failed to 
>address this widespread concern, but went even 
>further in devaluing SO’s in the 
>communitnity mechanism in the 3r 3rd 
>report.  The community mechanism failed to take 
>into account the appropriate roles and 
>responsibilities of the various SO’™s and 
>AC’s, and the dangers angers inherent it in 
>changing those roles with a “one sizeze 
>fitsts allâ€Â approach to critical decision makingg.
>
>Additionally, I object to the proposed departure 
>from ICANN’s typical 30-day pubpublublic 
>comment period on the 3rd report for 
>CCWG-Accountability.  The 3rd report’s 
>public commomment only allallows for 9 days of 
>public comment after the language translations 
>are scheduled to be published, which is far too 
>short of a public comment period for a report of 
>this significance and with so many important changes since previous drafts.
>
>Robin Gross
>
>On Nov 29, 2015, at 1:29 PM, Thomas Rickert 
><<mailto:thomas at rickert.net>thomas at rickert.net> wrote:
>
>Dear Robin,
>as discussed during the last CCWG call, minority 
>statements will be included in the report as 
>appendices if and when they are received.
>
>Best,
>Thomas
>
>---
><https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=9_5YAupJwVm6qd9FYkcvB50XsN6XMpB3eFmtm-kYBKI&e=>rickert.net 
>
>
>Am 29.11.2015 um 21:37 schrieb Robin Gross 
><<mailto:robin at ipjustice.org>robin at ipjustice.org>:
>Dear Co-Chairs,
>I have still not received a response to this 
>request.  What is the process for submitting 
>minority statements?  Please advise.
>Thanks,
>Robin
>
>
>On Nov 11, 2015, at 5:35 PM, Robin Gross 
><<mailto:robin at ipjustice.org>robin at ipjustice.org> wrote:
>
>Dear Co-Chairs,
>
>Could you please advise on the proposed schedule 
>and process for ensuring that minority 
>statements will be included in the report [of the executive summary]?
>
>Thank you,
>Robin
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>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) 
><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post
>book (Jefferson's 
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>*******************************
>
>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) 
><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post
>book (Jefferson's 
>Moose) 
><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n 
>
>music 
><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic 
>publications 
>etc.  <http://www.davidpost.com         />http://www.davidpost.com
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