[CCWG-ACCT] Resolution of Mission Language related to regulation and contract

Fri Dec 11 15:56:46 UTC 2015

Dear Milton

I feel it is fair for us to ask for a professional legal assessment of the impact of these changes.

I do not think there should be a problem with that.

Clarity would do us all good on this issue as we have done multiple times up to now.

regards

Jorge

Von meinem iPhone gesendet

> Am 11.12.2015 um 16:49 schrieb Mueller, Milton L <milton at gatech.edu>:
> 
> I think the answer to Julia and Jorge's questions about PICs are to be found in the discussion of grandfathering:
> 
> "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered.  This means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements.  It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face are ultra vires.  It does not, however, modify any contracting party's right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP.  Nor does it modify the scope of ICANN's Mission."
> 
> Short answer (IANAL, imho): old PICs are safe, new ones must be subject to mission limitation tests. Which is rather obviously the way it should be, no?  
> Do you Jorge, or does anyone in GAC, really believe that you should be able to use ICANN contracts to make registries do anything governments or any other part of ICANN pleases, regardless of mission limitations? What is the point of having mission limitations then? 
> 
> If that is what you want, please make it quite clear and explicit so that the public is aware of what you are trying to do. 
> 
>> -----Original Message-----
>> From: accountability-cross-community-bounces at icann.org
>> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
>> Jorge.Cancio at bakom.admin.ch
>> Sent: Friday, December 11, 2015 5:19 AM
>> To: jukacz at erst.dk
>> Cc: accountability-cross-community at icann.org
>> Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to
>> regulation and contract
>> 
>> Dear co-Chairs
>> 
>> to add to Julia's comment below, I feel Becky's answer is fine and
>> appreciated, but such a sensitive issue merits a legal assessment by our
>> lawyers, i.e. whether, and to what extent and/or under what conditions
>> what we know as "PICs" -be it old or new- will be consistent with the new
>> Mission language being proposed.
>> 
>> thanks for your consideration and regards
>> 
>> Jorge
>> 
>> Von meinem iPhone gesendet
>> 
>> Am 11.12.2015 um 11:11 schrieb Julia Katja Wolman
>> <jukacz at erst.dk<mailto:jukacz at erst.dk>>:
>> 
>> Co-Chairs, colleagues,
>> 
>> I am coming back to this issue and my previous question (see below) to get
>> some clarity as this is now an issue being discussed in the GAC. I would
>> therefore kindly ask whether the answer from Becky (below) should be seen
>> as the authoritative one, or if the CCWG has sought a legal opinion on this?
>> 
>> Good weekend to you all!
>> 
>> Best,
>> 
>> Julia
>> 
>> 
>> 
>> Julia Katja Wolman
>> 
>> DANISH BUSINESS AUTHORITY
>> 
>> Dahlerups Pakhus
>> Langelinie Allé 17
>> DK-2100 København Ø
>> Telephone: +45 3529 1000
>> Direct: +45 35291308
>> E-mail: jukacz at erst.dk<mailto:jukacz at erst.dk>
>> www.erhvervsstyrelsen.dk<http://www.erhvervsstyrelsen.dk>
>> 
>> MINISTRY FOR BUSINESS AND GROWTH
>> 
>> P Please consider the environment before printing this email.
>> 
>> Fra: Burr, Becky [mailto:Becky.Burr at neustar.biz]
>> Sendt: 26. november 2015 14:45
>> Til: Malcolm Hutty; Julia Katja Wolman
>> Cc: Silver, Bradley; Mueller, Milton L; Accountability Community; ACCT-Staff
>> Emne: Re: [CCWG-ACCT] Resolution of Mission Language related to
>> regulation and contract
>> 
>> Julia,
>> 
>> To reiterate, we are clarifying the existing Mission, not changing it.  Our
>> clarification does not terminate existing PICs. The GAC continues to be free
>> to offer whatever Advice it likes, including on "sensitive strings" and other
>> public policy issues.  ICANN remains obligated to consider that Advice and to
>> attempt to identify mutually acceptable solutions in the event of
>> disagreement in accordance with the Bylaws.  As is presently the case, the
>> ICANN Board's final decision on whether to accept GAC Advice and how to
>> implement such Advice must remain consistent with the ICANN Bylaws.
>> 
>> Becky
>> 
>> 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: Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>>
>> Date: Thursday, November 26, 2015 at 7:52 AM
>> To: Julia Katja Wolman <jukacz at erst.dk<mailto:jukacz at erst.dk>>
>> Cc: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>,
>> "Silver, Bradley"
>> <Bradley.Silver at timewarner.com<mailto:Bradley.Silver at timewarner.com>>
>> , "Mueller, Milton L" <milton at gatech.edu<mailto:milton at gatech.edu>>,
>> Accountability Community <accountability-cross-
>> community at icann.org<mailto:accountability-cross-
>> community at icann.org>>, ACCT-Staff <acct-staff at icann.org<mailto:acct-
>> staff at icann.org>>
>> Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to
>> regulation and contract
>> 
>> 
>> 
>> On 26 Nov 2015, at 06:58, Julia Katja Wolman
>> <jukacz at erst.dk<mailto:jukacz at erst.dk>> wrote:
>> Dear colleagues,
>> 
>> The discussions on this issue, including the status of the Draft Proposal, have
>> been somewhat challenging to follow. After the last CCWG call 24 November
>> and the discussion on the list with regard to the Mission Statement, the
>> "picket fence" and the termination of the PICs, especially, I would appreciate
>> a clarification (legal?) of what it would mean for GAC's public policy advice,
>> for example à la the advice the GAC has given on "sensitive strings" and the
>> Boards ability to implement and enforce public policy advice from the GAC.
>> 
>> Dear Julia,
>> 
>> There is no intention to limit ICANN's ability to decline to delegate domains
>> containing sensitive strings in accordance with consensus policy (and so, in
>> accordance with GAC advice that a particular string is sensitive).
>> 
>> There is however, an intention that ICANN's Mission be limited; since there is
>> no limit to what GAC public policy advice may contain, the possibility that
>> ICANN will not be in a position to do things the GAC might ask for cannot be
>> entirely excluded. But I would hope that the GAC would not ask ICANN to act
>> outside its Mission.
>> 
>> Kind Regards,
>> 
>> Malcolm.
>> 
>> 
>> 
>> 
>> 
>> Best regards,
>> 
>> Julia
>> 
>> 
>> Julia Katja Wolman
>> 
>> DANISH BUSINESS AUTHORITY
>> 
>> Dahlerups Pakhus
>> Langelinie Allé 17
>> DK-2100 København Ø
>> Telephone: +45 3529 1000
>> Direct: +45 35291308
>> E-mail: jukacz at erst.dk<mailto:jukacz at erst.dk>
>> www.erhvervsstyrelsen.dk<https://urldefense.proofpoint.com/v2/url?u=ht
>> tp-
>> 3A__www.erhvervsstyrelsen.dk&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw
>> &r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jrHJnZg42nwT
>> 7z9ZODS-zHHGkYzmM77O-UlelzlU7Hw&s=tDyVvM7-
>> TfYcc88YEgIdUCumzTnuMO_AAVCEXMl4blg&e=>
>> 
>> MINISTRY FOR BUSINESS AND GROWTH
>> 
>> PPlease consider the environment before printing this email.
>> 
>> 
>> 
>> Fra:accountability-cross-community-
>> bounces at icann.org<mailto:accountability-cross-community-
>> bounces at icann.org> [mailto:accountability-cross-community-
>> bounces at icann.org] På vegne af Burr, Becky
>> Sendt: 24. november 2015 20:09
>> Til: Silver, Bradley; Mueller, Milton L; Accountability Community; ACCT-Staff
>> Emne: Re: [CCWG-ACCT] Resolution of Mission Language related to
>> regulation and contract
>> 
>> Bradley, I agree that 3.18 and 3.7.7 of the RAA are within the picket fence,
>> and I think several other folks did as well.  Also, I think that we did agree to
>> grandfather existing agreements - happy to add as part of the drafting note.
>> But it doesn't make a lot of sense to me to start calling out particular sections
>> of the agreements - does that mean other parts of the agreement that are
>> not called out are automatically suspect?  Can we stick with the agreement
>> reached last night?
>> 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: <Silver>, Bradley
>> <Bradley.Silver at timewarner.com<mailto:Bradley.Silver at timewarner.com>>
>> Date: Tuesday, November 24, 2015 at 1:50 PM
>> To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>,
>> "Mueller, Milton L" <milton at gatech.edu<mailto:milton at gatech.edu>>,
>> Accountability Community <accountability-cross-
>> community at icann.org<mailto:accountability-cross-
>> community at icann.org>>, ACCT-Staff <acct-staff at icann.org<mailto:acct-
>> staff at icann.org>>
>> Subject: RE: [CCWG-ACCT] Resolution of Mission Language related to
>> regulation and contract
>> 
>> Fine with that tweak as well.  I do want to make one suggested change to a
>> drafting note, which is a point of clarity and is consistent with discussion on
>> the call, as well as the back and forth on this list.  We very much need to
>> ensure that these restrictions are not going to be used to poke holes in the
>> presumptive validity of provisions in the RAA and RA and PICs, which are
>> supported by the Specs.  So I propose:
>> 
>> 
>> ·         The issues identified in Specifications 1 and 11to the Registry
>> Agreement and Specification 4 to the Registrar Accreditation Agreement (the
>> so-called "Picket Fence"), as well the associated provisions of such
>> agreements (including but not limited to Sections 3.18 and 3.7.7. of the RAA)
>> are intended and understood to be within the scope of ICANN's Mission
>> 
>> Bradley
>> 
>> 
>> 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 Burr, Becky
>> Sent: Tuesday, November 24, 2015 12:54 PM
>> To: Mueller, Milton L; Accountability Community; ACCT-Staff
>> Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to
>> regulation and contract
>> 
>> I am fine with "in service of" - just used in furtherance of because that is
>> what the David Post language came around with
>> 
>> 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: <Mueller>, Milton L
>> <milton at gatech.edu<mailto:milton at gatech.edu>>
>> Date: Tuesday, November 24, 2015 at 12:50 PM
>> To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>,
>> Accountability Community <accountability-cross-
>> community at icann.org<mailto:accountability-cross-
>> community at icann.org>>, ACCT-Staff <acct-staff at icann.org<mailto:acct-
>> staff at icann.org>>
>> Subject: RE: [CCWG-ACCT] Resolution of Mission Language related to
>> regulation and contract
>> 
>> Becky:
>> The statement on ICANN's ability to enforce contracts: "in service of" its
>> mission was clearly the most popular and acceptable language; "in
>> furtherance of" was the least popular and acceptable. Please revert to "in
>> service of"
>> 
>> --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 Burr, Becky
>> Sent: Tuesday, November 24, 2015 12:15 PM
>> To: Accountability Community <accountability-cross-
>> community at icann.org<mailto:accountability-cross-
>> community at icann.org>>; ACCT-Staff <acct-staff at icann.org<mailto:acct-
>> staff at icann.org>>
>> Subject: [CCWG-ACCT] Resolution of Mission Language related to regulation
>> and contract
>> 
>> Based on our call earlier today, I have modified the side-by-side comparison
>> of the Mission Statement (comparing current Bylaws, 2nd Draft Proposal, and
>> proposed 3rd Draft Proposal language) to reflect the 2nd Draft Proposal
>> language plus the contract language as follows:
>> 
>> ICANN shall act strictly in accordance with, and only as reasonably
>> appropriate to achieve its Mission. ICANN shall not impose regulations on
>> services that use the Internet's unique identifiers, or the content that such
>> services carry or provide.  ICANN shall have the ability to negotiate, enter
>> into and enforce agreements with contracted parties in furtherance of its
>> Mission.
>> 
>> I have added the following Note per our discussion:
>> 
>> Note to drafters:  In crafting proposed Bylaws language to reflect this Mission
>> Statement, the CCWG wishes the drafters to reflect the following
>> considerations:
>> 
>> 
>> The prohibition on the regulation of "content" is not intended to prevent
>> ICANN policies from taking into account the semantic meaning of domain
>> names.
>> 
>> The issues identified in Specification 1 to the Registry Agreement and
>> Specification 4 to the Registrar Accreditation Agreement (the so-called
>> "Picket Fence") are intended and understood to be within the scope of
>> ICANN's Mission.  A side-by-side comparison of the formulation of the Picket
>> Fence in the respective agreements is attached for reference.
>> 
>> 
>> 
>> The PDF (as well as the PDF of the Picket Fence language) is attached.
>> 
>> 
>> 
>> Please note also that I have added a general note to the effect that we
>> expect the the Bylaws drafters may need to modify the Articles of
>> Incorporation to align with the substantive changes to the Bylaws.
>> 
>> 
>> 
>> Becky
>> 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>
>> 
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