[CCWG-ACCT] regulatory/mission issue WS2

Fri Nov 6 20:34:20 UTC 2015

Dear Becky

I certainly appreciate the challenges you face as a Rapporteur and the
effort you are making to find consensus by reducing what is said, but I find
myself in agreement with Malcom that the restriction clause you propose
deleting is particularly essential -- that is why I supported its
development back in March and why it has been a part of the public proposals
thus far.  I am especially persuaded by the observation that narrow mission
statements tend to expand without countervailing affirmative restrictions --
the Bill of Rights analogy seems particularly apt.  That is most notably
important for me because we are creating what we intend to be a justiciable
standard for the IRP to determine when ICANN exceeds its mission.  At least
in the US the history is that the adjudication of affirmative restrictions
is much, much easier then establishing the contours of power grants more
generally.   To Malcolm's other cogent points I would add only two further
thoughts:

First, deletion at this late date would create a very unfortunate drafting
record.  Deletion at the end of the process would be presumed by an
independent arbiter to have some intent and meaning and I greatly fear that
the inference would be drawn that we intended to negate the substantive
restriction.

Second, and to my mind more significantly, if we cannot today, at a time
when there is no live controversy coloring our judgement, articulate in
words the difference between the types of contracts and agreements that we
WOULD permit ICANN to enter into and those that we WOULD NOT, then how is it
that we would ever expect the IRP to make that judgment down the road in the
heat of a particular controversy.   Giving up at this point is, effectively,
a signal that we can't figure it out -- and if we can't we have no basis for
hoping the IRP would.

Regards
Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
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-----Original Message-----
From: Malcolm Hutty [mailto:malcolm at linx.net] 
Sent: Friday, November 6, 2015 2:22 PM
To: Burr, Becky <Becky.Burr at neustar.biz>; Accountability Cross Community
<accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] regulatory/mission issue WS2

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 Internet's 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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Internet Exchange | http://publicaffairs.linx.net/

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