[CCWG-ACCT] Minority statements inclusion in report
Silver, Bradley
Bradley.Silver at timewarner.com
Tue Dec 1 03:10:58 UTC 2015
I disagree completely that the grandfathering of the provisions of the RAA and RA would automatically also grandfather any action that ICANN might take to enforce such agreements. ICANN's mission is defined first and foremost in the positive - and the bylaws begin from the proposition that anything ICANN does must be in conformity with that. The existing language says as much. There is a difference between provisions relating to illegal activity, and the regulation of content, but given your motivation to accomplish "a belated overturning of an abuse of ICANN's power", I don't think I can convince you of that distinction.
________________________________________
From: David Post [david.g.post at gmail.com]
Sent: Monday, November 30, 2015 7:04 PM
To: Silver, Bradley
Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
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
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 don’t 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 / neustar.biz<http://www.neustar.biz>
From: David Post <david.g.post at gmail.com<mailto:david.g.post at gmail.com> >
Date: Monday, November 30, 2015 at 1:32 PM
To: Accountability Community < accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < NCSG-DISCUSS at LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Accountability Community < accountability-cross-community at icann.org<mailto: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: accountability-cross-community-bounces at icann.org<mailto: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: accountability-cross-community at icann.org<mailto: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 <thomas at rickert.net<mailto: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
---
rickert.net<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=>
Am 29.11.2015 um 21:37 schrieb Robin Gross <robin at ipjustice.org<mailto: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 <robin at ipjustice.org<mailto: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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