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

Wed Nov 4 22:28:34 UTC 2015

Becky,

I think that the language that's there is sufficient to challenge any
contractual provision that falls outside the Mission.  For the reasons
noted in my marginal comments, the reference to "checks and balances"
didn't really seem to work (I know we used it as kind of a placeholder for
a concept after Dublin, but as an instruction to lawyers or as a bylaw, I
can't see how it fits).

Maybe we need to try and say in plain English what the contracted parties
want to see come out of this, and then leave the "bylaw-ification" to
outside counsel in the drafting process.  Based on what was there, I
grasped neither the need nor the intent.

I'm committed, as I know you are, to working this through until we achieve
a consensus result.  In spite of the invitation I received in this thread
(not from you) to file a minority view if I didn't like where things stood
(which is a polite way of suggesting an anatomical impossibility), I always
operate under the assumption that consensus can be found if we continue
exchanging views and drafts.  As far as I can tell, you share that general
approach.  So let's see what we can accomplish.  We may not be far off at
all.

Greg

On Wed, Nov 4, 2015 at 5:20 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> Thanks Greg.  That does not appear to balance the concerns of contracted
> parties, however.
>
> J. Beckwith Burr
> Deputy General Counsel & Chief Privacy Officer
>
>
> From: Greg Shatan <gregshatanipc at gmail.com>
> Date: Wednesday, November 4, 2015 at 5:06 PM
> To: Becky Burr <becky.burr at neustar.biz>
> Cc: Steven Metalitz <met at msk.com>, "Silver, Bradley" <
> Bradley.Silver at timewarner.com>, Malcolm Hutty <malcolm at linx.net>, Alan
> Greenberg <alan.greenberg at mcgill.ca>, Accountability Community <
> accountability-cross-community at icann.org>
>
> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call
>
> Becky and all,
>
> I have attached a revision to the proposed Bylaw under discussion, taking
> the comments from various quarters into account and trying to balance
> various concerns.
>
> Greg
>
> On Wed, Nov 4, 2015 at 4:56 PM, Burr, Becky <Becky.Burr at neustar.biz>
> wrote:
>
>> Maybe we should include a reference to the Consensus and Temporary
>> Policies Specification.  Remember, this is not Bylaws language, rather it
>> is instruction to drafting lawyers.
>>
>>
>> J. Beckwith Burr
>> Deputy General Counsel & Chief Privacy Officer
>>
>>
>> From: <Metalitz>, Steven Metalitz <met at msk.com>
>> Date: Wednesday, November 4, 2015 at 4:36 PM
>> To: Becky Burr <becky.burr at neustar.biz>, "Silver, Bradley" <
>> Bradley.Silver at timewarner.com>, 'Malcolm Hutty' <malcolm at linx.net>, Alan
>> Greenberg <alan.greenberg at mcgill.ca>, Accountability Community <
>> accountability-cross-community at icann.org>
>>
>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
>>
>> The argument is serious because the proposal is to amend the Mission to
>> exclude “regulation of services that use unique identifiers.”  This brings
>> me back to the question whether domain name registration is such a service,
>> and then Bradley’s question whether registrar accreditation is a regulation
>> of that service.  There certainly seems to be a serious argument that the
>> answer to each question is “yes,”  and if so, then this change to ICANN’s
>> mission would bring into serious question ICANN’s authority to continue
>> registrar accreditation --- without regard to the fact that, under a
>> Mission statement that always lacked the ban on “regulation of services,”
>> ICANN has “always accredited.”
>>
>>
>>
>> *From:* Burr, Becky [mailto:Becky.Burr at neustar.biz
>> <Becky.Burr at neustar.biz>]
>> *Sent:* Wednesday, November 04, 2015 4:26 PM
>> *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan
>> Greenberg; Accountability Community
>> *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
>>
>>
>>
>> This argument doesn’t make a lot of sense to me.  ICANN has always
>> accredited – both registries and registrars.  Is there a serious argument
>> to be had that this is outside the Mission?
>>
>>
>>
>> J. Beckwith Burr
>>
>> Deputy General Counsel & Chief Privacy Officer
>>
>>
>>
>>
>>
>> *From: *<Silver>, Bradley <Bradley.Silver at timewarner.com>
>> *Date: *Wednesday, November 4, 2015 at 4:20 PM
>> *To: *Becky Burr <becky.burr at neustar.biz>, Steven Metalitz <met at msk.com>,
>> 'Malcolm Hutty' <malcolm at linx.net>, Alan Greenberg <
>> alan.greenberg at mcgill.ca>, Accountability Community <
>> accountability-cross-community at icann.org>
>> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
>>
>>
>>
>> Thank you for pointing that out, Becky.   Do you think it’s clear that
>> the role of “coordinator” of the allocation and assignment of names in the
>> root zone of the DNS, unequivocally covers the activity of accreditation of
>> services that use the internet’s unique identifiers?  Even with the added
>> language covering enforcement of contracts, I think there is significant
>> potential for confusion about how to reconcile what ICANN is empowered to
>> do on the one hand (coordinate), but forbidden from doing on the other
>> (regulate).   The plain meaning of “regulate” seems to clearly cover (and
>> therefore prohibit) the activity of accreditation – even when read
>> alongside the earlier reference to ICANN’s function as “coordinator”.
>>  Some might argue that ICANN can and should fulfill its mission as
>> coordinator without engaging in activities that amount to “regulation”-
>> including accreditation, but possibly other oversight activities that could
>> be understood as exceeding its powers of coordination.
>>
>>
>>
>> *From:* Burr, Becky [mailto:Becky.Burr at neustar.biz
>> <Becky.Burr at neustar.biz>]
>> *Sent:* Wednesday, November 04, 2015 3:46 PM
>> *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan
>> Greenberg; Accountability Community
>> *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
>>
>>
>>
>> Taking off Andrew and the IAB folks as this is not their issue
>>
>>
>>
>> W    As part of this process we have captured and imported the essence of
>> the "picket fence” - the “what” (as opposed to the “how”) of Consensus
>> Policy  (Section 1.2 of the Consensus and Temporary Policies spec) into
>> ICANN's Mission statement for names (ICANN’s Mission for names covers issues
>> for which uniform or coordinated resolution is reasonably necessary to
>> facilitate openness, interoperability, resilience, security and/or
>> stability of the DNS).  That means that issues that fall into the so-called
>> “picket fence” are within ICANN’s Mission.  That has been functionally
>> true via the registry and registrar agreements since the beginning of ICANN
>> time.  We have just made this a bylaw fact.  Section 1.3 of the Spec gives
>> examples
>>
>>
>>
>> Se
>>
>>
>>
>> S
>>
>> J. Beckwith Burr
>>
>> Deputy General Counsel & Chief Privacy Officer
>>
>>
>>
>>
>>
>> *From: *<Silver>, Bradley <Bradley.Silver at timewarner.com>
>> *Date: *Wednesday, November 4, 2015 at 12:02 PM
>> *To: *Becky Burr <becky.burr at neustar.biz>, Steven Metalitz <met at msk.com>,
>> 'Malcolm Hutty' <malcolm at linx.net>, Alan Greenberg <
>> alan.greenberg at mcgill.ca>, Accountability Community <
>> accountability-cross-community at icann.org>, Andrew Sullivan <
>> ajs at anvilwalrusden.com>, "iab at iab.org" <iab at iab.org>
>> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
>>
>>
>>
>> Becky and all – I’m new to this thread but have been following this issue
>> for some time.  I’m still confused as to how Spec 1 clarifies the
>> “regulation” language.  If spec 1 says ICANN can do something by way of
>> consensus policy making, does that trump what the bylaws say ICANN can do?
>>  Bylaws trump, don’t they?
>>
>>
>>
>>
>> *Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. *
>>
>> One Time Warner Center New York, NY 10019-8016 *|* P: 212 484 8869  *|*
>> F: 212 658 9293
>>
>> [image: cid:image004.png at 01D11648.738D46F0]
>>
>>
>>
>>
>>
>>
>>
>> *From:*accountability-cross-community-bounces at icann.org [
>> mailto:accountability-cross-community-bounces at icann.org
>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Burr,
>> Becky
>> *Sent:* Wednesday, November 04, 2015 11:33 AM
>> *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability
>> Community; Andrew Sullivan; iab at iab.org
>> *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
>>
>>
>> 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
>>
>> ?         *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.
>>
>> ?         *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.
>>
>> ?         *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>
>> *Date: *Wednesday, November 4, 2015 at 11:03 AM
>> *To: *'Malcolm Hutty' <malcolm at linx.net>, Alan Greenberg <
>> alan.greenberg at mcgill.ca>, Becky Burr <becky.burr at neustar.biz>,
>> Accountability Community <accountability-cross-community at icann.org>,
>> Andrew Sullivan <ajs at anvilwalrusden.com>, "iab at iab.org" <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
>> <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
>> *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
>> Head of Public Affairs | Read the LINX Public Affairs blog
>> London Internet Exchange | http://publicaffairs.linx.net/
>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=>
>>
>> London Internet Exchange Ltd
>> Monument Place, 24 Monument Street, London EC3R 8AJ
>>
>> Company Registered in England No. 3137929
>> Trinity Court, Trinity Street, Peterborough PE1 1DA
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=>
>>
>> =================================================================
>> This message is the property of Time Warner Inc. and is intended only for
>> the use of the
>> addressee(s) and may be legally privileged and/or confidential. If the
>> reader of this message
>> is not the intended recipient, or the employee or agent responsible to
>> deliver it to the intended
>> recipient, he or she is hereby notified that any dissemination,
>> distribution, printing, forwarding,
>> or any method of copying of this information, and/or the taking of any
>> action in reliance on
>> the information herein is strictly prohibited except by the intended
>> recipient or those to whom
>> he or she intentionally distributes this message. If you have received
>> this communication in
>> error, please immediately notify the sender, and delete the original
>> message and any copies
>> from your computer or storage system. Thank you.
>> =================================================================
>>
>> =================================================================
>> This message is the property of Time Warner Inc. and is intended only for
>> the use of the
>> addressee(s) and may be legally privileged and/or confidential. If the
>> reader of this message
>> is not the intended recipient, or the employee or agent responsible to
>> deliver it to the intended
>> recipient, he or she is hereby notified that any dissemination,
>> distribution, printing, forwarding,
>> or any method of copying of this information, and/or the taking of any
>> action in reliance on
>> the information herein is strictly prohibited except by the intended
>> recipient or those to whom
>> he or she intentionally distributes this message. If you have received
>> this communication in
>> error, please immediately notify the sender, and delete the original
>> message and any copies
>> from your computer or storage system. Thank you.
>> =================================================================
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eTso-u1z4iP4vNoTW45oPxQvGHWVjSC6vur2UUk4B0&s=iWNyB8vxlm7yYWml1CCZ7cunCDTfknLfZ19sr7s1vJg&e=>
>>
>>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151104/1f368b21/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 8607 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151104/1f368b21/image001-0001.png>