[CCWG-ACCT] regulatory/mission issue WS2

[Burr, Becky]

Thanks Malcolm.

I understand the concern, and you are quite right that the prohibition on
regulation of such services was in the first and second draft proposal and
received strong support (along with the criticism regarding contracting
issues).
 


To make it easier for others to follow, the text on the table, proposed by
Malcolm on Wednesday evening to address concerns about the definition of
³services that use the Internet¹s unique identifiers² is as follows:


"ICANN shall only act strictly in accordance with its Mission. Without
in any way limiting the foregoing, ICANN shall not engage in or use its
powers to attempt the regulation of services that use the Internet's
unique identifiers to enable or facilitate their reachability over the
Internet, nor shall it regulate the content that those services carry or
provide. ICANN shall have the ability to negotiate, enter into and
enforce agreements with contracted parties in service of its Mission."







J. Beckwith Burr 
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz
<http://www.neustar.biz>




On 11/6/15, 2:21 PM, "Malcolm Hutty" <malcolm at linx.net> wrote:

>
>On 06/11/2015 17:30, Burr, Becky wrote:
>> All:  At the risk of causing a riot, I confess that am getting
>> increasingly concerned that we are confusing ourselves (and possibly the
>> bylaws) by trying to include and explain the prohibition on regulation
>> of services that use the Internet¹s unique identifiers or the content
>> that such services carry or provide.  Perhaps we would be better off
>> relying on a clear Mission statement and enhanced accountability
>> mechanisms to prevent mission creep?
>
>While I appreciate the difficult position you are in as Rapporteur in
>trying to find a solution, I think that's very dangerous and indeed
>unwise suggestion.
>
>Firstly, very many people consider this clause to be an essential
>component of trusting ICANN, independent of US oversight. You are only
>proposing deleting this in response to pressure from the intellectual
>property community, a stakegroup that many other suspect (not without
>reason) of aspirations to turn ICANN into precisely what is prohibited
>by this clause. Deleting it will be seen as only confirming those fears.
>
>Secondly, there was very strong support for this clause in the previous
>public comment rounds - not just the previous one, but also the first.
>Deleting it (especially in the context of the rather compressed process
>we plan going forward to completion) will be seen as removing a major
>promised protection at the last moment, and so will also invite
>trenchant criticism on process grounds, on top of criticism of the
>substance of the change.
>
>Thirdly, your argument that it is duplicative and so unnecessary, while
>not unreasonable, is by no means overwhelmingly persuasive. One of the
>mischiefs that this clause seeks to prevent is ICANN claiming that it is
>entitled to say "In order to register and use a domain, you must comply
>with community developed policy for domains *regardless of the content
>of that policy and with no limits on what that policy might contain*".
>Absent this clause, it is not easy to see conclusive evidence that such
>a position would be invalid. I know that you place great reliance on
>Specification 1, and as a Registry for whom Specification 1 is part of
>your Registry agreement, I can see why that would satisfy your own
>interests. But others are entitled to fear that future rounds may use a
>different Specification 1, or none at all, or that Registries might
>choose to waive Specification 1 and so increase ICANN's role without any
>consent from other parts of the ICANN community. Registries are not the
>only stakeholder group with an interest in seeing the substance of
>Specification 1 maintained, and others who do have no reason to be as
>satisfied by Specification 1 as a mechanism as Registries may be.
>
>Fourthly, your argument that a general limitation to enumerated powers
>makes a specific exclusion unnecessary is hardly novel. In the time of
>your own country's adoption of its Constitution, a central point of
>controversy was the same question, namely whether the Bill of Rights was
>still necessary, or was unnecessary and indeed undesirable because the
>Federal government was only granted enumerated powers. You know that the
>proponents of a Bill of Rights won the argument then, and were
>vindicated by subsequent history.
>
>Finally, perhaps most importantly, this clause provides the most clear
>and visible commitment that can be pointed to as satisfying the NTIA
>requirement that the future ICANN, after implementation of our reforms,
>can be relied upon to continue to support an open Internet. This is a
>core NTIA criterion. Moreover, this is an issue that is not only of
>interest to major stakeholder groups within the ICANN community, but has
>been a central point of focus in Congressional attention to this
>transition. The last-minute removal of this clause could have a
>destabilising on political support for transition.
>
>I am on record as having said that if we cannot get consensus we should
>revert to the text of the two previous drafts for public comment.
>However, the text I offered most recently as a compromise appeared to be
>getting serious consideration from Greg and the IPC
>
>"ICANN shall only act strictly in accordance with its Mission. Without
>in any way limiting the foregoing, ICANN shall not engage in or use its
>powers to attempt the regulation of services that use the Internet's
>unique identifiers to enable or facilitate their reachability over the
>Internet, nor shall it regulate the content that those services carry or
>provide. ICANN shall have the ability to negotiate, enter into and
>enforce agreements with contracted parties in service of its Mission."
>
>I think it's therefore unfortunate that you should propose deletion,
>upsetting the possibility of the consensus that had seemed to be close.
>
>In the light of these arguments, I hope you feel it best to withdraw
>your suggestion.
>
>
>
>Malcolm.
>
>-- 
>            Malcolm Hutty | tel: +44 20 7645 3523
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