[CCWG-ACCT] Minority statements inclusion in report

[David Post]

Malcolm

I do appreciate the need for compromise, as you 
put it below, and I also appreciate your 
thoughtful attempt to allay my fears about the 
new language concerning the existing agreements.

I also accept that we should "accept the 
long-established boundaries to ICANN's 
role,"  and that "ICANN WILL regulate domain 
names per se, and its enforcement mechanisms will 
make use of relevant evidence to that effect ..."

That's fine.  But ICANN has itself transgressed 
those boundaries in the past, and I think it is a 
mistake not to do all that we can to identify 
where it has done so, so that we can make sure 
they don't do it again in the future.  I am very 
nervous about "grandfathering in" those 
transgressions, in a manner that could enable 
someone (like an IRP judge) to say that we have 
somehow ratified them and deemed them to be 
appropriate exercises of ICANN's power.  In my 
opinion, Spec. 11 and the mandatory PICs 
represent a rather flagrant example of that.  The 
terms of Spec. 11 were introduced into the new 
gTLD Registry Agreements without any pretense 
that they had been the product of consensus 
policy-making, and I don't believe the 
requirement that registrars must promise (or risk 
losing their accreditation) provide for an 
"appropriate response" and for "consequences 
including the suspension of domain name 
registrations" for registrants who act in a 
manner "contrary to applicable law" is within the 
"long-established boundaries" around what ICANN can do or not do.

So I'm just trying to be sure that the new 
language regarding the existing agreements won't 
be understood in the future (and is not intended 
to be understood) as somehow ratifying that kind 
of activity on ICANN's part, that it implies 
somehow that everything that ICANN did in regard 
to those agreements is an appropriate exercise of ICANN's power.

You (and others) have said that it doesn't imply 
that.  You've told us what you think it doesn't mean.

>-- it doesn't give ICANN unfettered freedom in 
>deciding how to respond in enforcing provisions like 3.18

>-- 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.

>-- I cannot imagine how anyone could force ICANN 
>to interpret and enforce 3.18 or any other 
>provision in a manner that doesn't comport with ICANN's mission,

That all sounds fine to me.  But (a) that doesn't 
jump out me from the language itself (though as 
you suggest, we can wait and see how the lawyers sort it out).
More importantly, if that's what "grandfathering 
the existing agreements" doesn't mean, what does 
it mean? What is it accomplishing?  What is its 
point?  If my interpretation is wrong (as 
everyone is reassuring me it is), what is the 
correct interpretation?  If it's meant to expand 
the scope of the Mission in some way, in what 
way? If it's not meant to expand the scope of the Mission, why is it in there?

I respectfully suggest this is not something we 
can just leave to the lawyers to see what they 
come up with.  I do think we need to tell them 
what we think it means so that they can address it appropriately.

David


David


At 08:50 PM 11/30/2015, Malcolm Hutty wrote:


>>>BS   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 provisioision outside the
>>>mission?  If it’s the latter, then en it appears you are
>>>attempting to achieve a retrospective amendment of the RA and RAA
>>>­ by redeffining “illegal activityâây†or “activity
>>>contrary to applicable law†to specifically exclude any  activity
>>>which relates to the content associated with the Registered Name. Â
>>>Â
>>



>>DP  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.
>
>MH  I am afraid I must disagree with you here, David.
>
>Merely "touching upon" content is not, in my view, sufficient to place
>something outside the scope of ICANN's Mission and it wasn't my intent,
>in supporting this text, to make it so.
>
>I certainly wish to prevent ICANN using its authority over domain names
>as leverage to enable it to engage in activity whose *purpose* is the
>regulation of content, even if the *means* is limited to regulating domain
>names. But if the true purpose is an entirely proper regulation of domain
>names, then merely "touching upon" content is not sufficient, in my view,
>to prevent ICANN from that goal.
>
>Perhaps curiously, I can't think of any better example example to illustrate
>this distinction than the discussion we recently had about the UDRP:
>in the UDRP, the purpose is to determine whether someone has registered a
>domain to which they have no right (or rather, in which someone else's rights
>in that domain preempt and preclude them from registering it). So long as
>the focus is on answering that question, content on services addressed using
>that domain is perfectly admissible and relevant evidence. Selling widgets
>marked with a counterfeit "Banana" trademark on www.banana.com is perfectly
>good evidence that your registration of banana.com was intended as a misuse
>of Banana Corp's trademark and not as a legitimate, lawful use of the string
>banana to market fruit. On the other hand, content is only evidence in that
>question: illegitimate content cannot of itself give rise to a right to a
>third party to supercede the registrant's rights in the domain under the
>UDRP, even if it does give rise to remedies 
>against the registrant under local law.
>
>I really do think the respective sides to this debate need to accept the
>long-established boundaries to ICANN's role, even if neither are terribly
>happy about them. ICANN WILL regulate domain names per se, and its enforcement
>mechanisms will make use of relevant evidence to that effect; so sorry, dear
>friends in the civil society community, but this is settled. On the other
>hand, ICANN CANNOT be authorised to regulate the 
>entire Internet, using the threat of domain
>suspension as a cure-all for every supposed evil that people do online: we are
>simply not willing to give ICANN such power; 
>that must be reserved for governments
>acting within their own jurisdictions (and not collectively, through GAC).
>
>This is the balance. This is the compromise. On this compromise rests not
>only support for transition, but support for ICANN itself, and for the
>multi-stakeholder model more generally. If ICANN is not able to regulate
>the sphere placed within its responsibility, support for ICANN as an effective
>means for discharging that responsibility will evaporate, first within the
>IPR lobby, then governments, and gradually more generally. But equally, if
>ICANN overreaches, and uses its power to implement more general regulation of
>what occurs online, then support will evaporate just as fast: first with civil
>society, then with other Internet intermediaries 
>like ISPs, and remarkably rapidly with
>governments too (when that power is used for a 
>purpose contrary to their own local policy,
>as must be inevitable), and then at last with the whole community.
>
>Our job here is to preserve that balance, not to upset it; to ensure that the
>enforceable rules we write to uphold that balance are durable, and will ensure
>that the line is respected, not just today, but 
>in the face of challenges to come.
>
>I believe our Third Draft Report successfully 
>preserves that balance and, crucially,
>provides the means to ensure that the same 
>balance survives in the post-transition
>environment. Our lawyers must now implement these measures, and we must then
>check that they have done so.
>
>Kind Regards,
>
>Malcolm.
>
>--
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
>
>                  London Internet Exchange Ltd
>            21-27 St Thomas Street, London SE1 9RY
>
>          Company Registered in England No. 3137929
>        Trinity Court, Trinity Street, Peterborough PE1 1DA

*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
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