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

Greg Shatan gregshatanipc at gmail.com
Wed Nov 4 22:29:54 UTC 2015


No problem.  Balancing speed and attention to detail is another
impossibility we are all trying our best to accomplish.

Greg

On Wed, Nov 4, 2015 at 5:28 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> Sorry, I was too short.  I am reviewing.
>
>
>
> 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/
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>>
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>>
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