[CCWG-ACCT] WP2 Issues from last night's call

Wed Nov 4 16:32:37 UTC 2015

For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA.  Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names)  Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)"

CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION

  1.  Consensus Policies.

1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein.

1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars.  Consensus Policies shall relate to one or more of the following:

1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS");

1.2.2. functional and performance specifications for the provision of Registrar Services;

1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;

1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or

1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.

1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation:

1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);

1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars;

1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration);

1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers;

1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and

1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.

1.4. In addition to the other limitations on Consensus Policies, they shall not:

1.4.1. prescribe or limit the price of Registrar Services;

1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies;

1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or

1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner.

  2.  Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies").

2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws.

2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders.

2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy.

  3.  Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification.

J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer

From: <Metalitz>, Steven Metalitz <met at msk.com<mailto:met at msk.com>>
Date: Wednesday, November 4, 2015 at 11:03 AM
To: 'Malcolm Hutty' <malcolm at linx.net<mailto:malcolm at linx.net>>, Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>>, 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>>, Andrew Sullivan <ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>>, "iab at iab.org<mailto:iab at iab.org>" <iab at iab.org<mailto:iab at iab.org>>
Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call

Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?

Steve Metalitz

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 Malcolm Hutty
Sent: Wednesday, November 04, 2015 10:59 AM
To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab at iab.org<mailto:iab at iab.org>
Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call

On 04/11/2015 14:17, Alan Greenberg wrote:
> In the regulatory section, I would still like to see language that
> explicitly says that the unique identifiers themselves are deemed to not
> be "content".

Alan,

If you read the clause carefully, you will see that it does not say that
ICANN cannot regulate Internet content; that's just a loose paraphrasing
some people have been using in conversation.

Instead, it says that ICANN "shall not regulate
services that use the Internet's unique identifiers, or the content that
such services carry or provide."

So the target of that exclusion is not "content" but "services" and "the
content that such services carry or provide". This neatly avoids the
question of whether domain names are content, because even if they are,
they are still outside the reach of that exclusion.

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