[CCWG-ACCT] Personal Responses to Draft Summary of ALAC Issues on Mission (Recommendation 5)

[David Post]

At 03:58 PM 12/17/2015, Mueller, Milton L wrote:
>[SNIP]
>More responses to Becky in line below:
>
>BB:  While I don't think that ICANN has the authority to demand that 
>the registry operator adopt such a policy, I have no problem 
>whatsoever with ICANN holding the registrant to that policy if it 
>was offered as part of the application.  (Others may well disagree with me.)
>
>MM:  I do disagree. One problem is that the line between what ICANN 
>demands and what is offered "voluntarily" by the registry is 
>unclear, and easily fudged, given ICANN's monopoly position. For 
>example, suppose someone applied for that TLD and the GAC and ALAC 
>advised that the applicant not be given the domain unless they 
>adopted such a policy. If this would be classified as the registry 
>"voluntarily" adopting the policy (because they will be denied entry 
>if they don't) it is very clearly an example of ICANN using its 
>monopoly control of the root to impose regulation on the users
>[SNIP]

I agree that the line between "voluntary" provisions and "mandatory" 
provisions is a difficult one to draw.  But I'm not sure that means 
that it has to be abandoned, or that a well-formed IRP couldn't 
distinguish between the two.  Some policies are imposed on registry 
operators (and/or on registrars and registrants) by virtue of an 
ICANN policy - those are relatively easy to characterize as 
"mandatory."  The example you gave is much harder - but it does seem 
to me that it's not too difficult to characterize that as "mandatory" 
as well, and that the affected party would and should be able to make 
the argument you're making (i.e., that is an example of ICANN "using 
its monopoly control of the root to impose regulation of the users"), 
and that it would therefore have to be within the Mission to be valid.

David






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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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