[CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

[Malcolm Hutty]

On 16/12/2015 05:56, Bruce Tonkin wrote:
>>> B.  Does the Board propose to replace (in some place other than
>>> the Mission Statement) the following two concepts:
> 
>>> ICANN shall not impose regulations on services that use the
>>> Internet's unique identifiers or the content that such services
>>> carry or provide; and
> ICANN shall have the ability to negotiate, enter into, and enforce
> agreements with contracted parties in service of its Mission
> 
>>> With these concepts:
> 
>>> ICANN's entering into and enforcement of Registry and Registrar
>>> contracts is an important component of ICANN's work in
>>> coordination and allocation of names in the Root Zone of the DNS;
>>> and
> ICANN is not a regulator and does not regulate content through these
> contracts.
> 
> Yes - as noted before though the key will be in developing
> appropriate bylaws language.    It is not easy to draft.
> 
> 
>>> [Aside - I assume ICANN is merely asserting its status here, and
>>> is not actually willing to agree to language prohibiting it from
>>> acting as a "regulator"]
> 
> Our US legal advisors have been consistent in that they do not
> believe that ICANN is a regulator under the US legal environment.

Nobody is suggesting that ICANN is a "regulator" in the sense of "a
public authority invested with statutory or constitutional powers".

We were thinking more of the general concept of "bringing registrants
into conformity with ICANN policy through contractual requirements".

CCWG wants to draw a bright line between the area where ICANN is
supposed to develop policy (and enforce that policy through contracts)
and the area where we believe ICANN should not have a policy. And we
want this line to be enforceable by the IRP.

We want this to be a clear and predictable "bright line" because we want
it to be easy for ICANN to avoid stepping over it, and because we want
predictable outcomes from the IRP in the event that it is alleged ICANN
has done so.

What we have been discussing is whether ICANN should be allowed to use
its authority in DNS policy, and the contractual chain it holds with
Registries, Registrars and Registrants, to seek to control what content
domain registrants may or may not publish on web sites (or other such
systems).

Broadly speaking, we think that for ICANN to seek to limit what people
are allowed to put on web sites is on the wrong side of that line.

The wording is difficult, because finding words to generalise from "web
sites" to other equivalent systems isn't easy, and because we don't want
to inadvertently interfere with ICANN's ability to 'regulate'
registrars, for example. And we've had to make further accomodations for
existing activities (the grandfather clause).

But the basic concept is pretty straightforward, even if the wording is
not. So I beg of colleagues not to re-open discussion of the wording
based on my loose description above; it's only a loose approximation.

Nonetheless we need to know, does the Board support that basic idea?

If it does, then we are fine. As Becky says, the final wording is still
to go to lawyers.

If it does not, I believe we have an irreconcilable difference.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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