[CCWG-ACCT] Mission/Contract

Tue Nov 10 07:31:09 UTC 2015

I like both of Greg's formulations.

It should be expressed in the form

"ICANN shall have no power . . . . "

On 11/10/2015 06:11 AM, Greg Shatan wrote:
> I'm flattered (I think) to have my name attached to a proposal.
> However, my thinking has evolved with regard to certain parts of the
> post-Dublin language, "my" proposal and Malcolm's proposal.  I would
> suggest a version that is in many ways is an amalgamation of these 3.
> The first paragraph is most similar to Malcolm's proposal, while the
> second is most similar to the Post-Dublin proposal.  The third paragraph
> is taken from the Second Draft Report and from the recommendations of
> WP1 after the second public comment analysis.  A clean version is below,
> followed by a version of Becky's chart with an added column for this
> proposal (a PDF is also attached).  For convenience, I've marked my
> latest version against Malcolm's rather than my prior version.  As a
> general rule, I chose versions that had the clearest language and
> avoided extra phrases that did not seem to add meaning.
>
> Greg
>
> ICANN shall only act in accordance with its Mission.
>
> Without in any way limiting the foregoing, ICANN shall not regulate
> services (i.e. those offered by web servers, mail servers and the like)
> that use the Internet's unique identifiers or the content that those
> services carry or provide.
>
> The prohibition on regulation of services that use the Internet’s unique
> identifiers or the content that they carry or provide does not act as a
> restraint on ICANN’s authority to negotiate, enter into and enforce
> agreements. Consensus Policy, as defined in “Consensus Policies and
> Temporary Policies Specification” in the 2013 Registrar Accreditation
> Agreement, is outside of such prohibition.
>
>
> 2^nd  Draft Report Language
>
> 	
>
> Post-Dublin Language
>
> 	
>
> Greg Shatan Proposal 2 Nov 2015
>
> 	
>
> Malcolm Hutty Proposal 6 Nov 2015
>
> 	
>
> Greg Shatan Proposal 9 Nov 2015
>
> ICANN shall have no power to act other than in accordance with, and as
> reasonably appropriate to achieve its Mission.
>
> Without in any way limiting the foregoing absolute prohibition, ICANN
> shall not engage in or use its powers to attempt the regulation of
> services that use the Internet's unique identifiers, or the content that
> they carry or provide.
>
> 	
>
> ICANN shall have no power to act strictlyother thanin accordance with,
> and only as reasonably appropriate to achieve its Mission.
>
> Without in any way limiting the foregoing absolute prohibition, ICANN
> shall not regulate services that use the Internet's unique identifiers,
> or the content that such services carry or provide.
>
> In service of its MissionICANN shall have the ability to enforce
> agreements with contracted parties, subject to established means of
> community input on those agreements and reasonable checks and balances
> on its ability to impose obligations exceeding ICANN’s Mission on
> registries and registrars.
>
> 	
>
> ICANN shall have no power to act other than in accordance with, and as
> reasonably appropriate to achieve its Mission.
>
> Without in any way limiting the foregoing absolute prohibition, ICANN
> shall not regulate services that use the Internet's unique identifiers,
> or the content that such services carry or provide.
>
> ICANN and contracted parties entering into, complying with and enforcing
> agreements does not constitute regulation.
>
>   In service of its Mission, ICANN shall have the ability to enforce
> agreements with contracted parties, subject to established means of
> community input on those agreements and reasonable checks and balances
> on its ability to impose obligations exceeding ICANN’s Mission on
> registries and registrars.
>
> 	
>
> ICANN shall only act strictly in accordance with and as reasonably
> appropriate to achieve 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 or 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.
>
> subject to established means of community input on those agreements and
> reasonable checks and balances on its ability to impose obligations
> exceeding ICANN’s Mission on registries and registrars
>
> 	
>
> ICANN shall only act strictly[1]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn1>
> 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 regulate services(i.e. those
> offered by web servers, mail servers and the like)[2]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn2>
> that use the Internet's unique identifiersto enable or facilitate their
> reachability over the Internet, nor shall it regulate[3]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn3>
> or the content that those services carry or provide.
>
> The prohibition on regulation of services that use the Internet’s unique
> identifiers or the content that they carry or provide does not act as a
> restraint on ICANN’s authority to negotiate, enter into and enforce
> agreements.^^[4]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn4>
> Consensus Policy, as defined in “Consensus Policies and Temporary
> Policies Specification” in the 2013 Registrar Accreditation Agreement,
> is outside of such prohibition.^^[5]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn5>
>
> ICANN shall have the ability to negotiate, enter into and enforce
> agreements with contracted parties in service of its Mission.
>
>
> ------------------------------------------------------------------------
>
> [1]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref1>
> I have not accepted Malcolm’s addition of “strictly,” since this will be
> construed to mandate the most restrictive and conservative
> interpretation possible and thus make the bylaw overly inflexible.
>
> [2]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref2>
> This is taken from an email from Malcolm Hutty, as a description of what
> is meant by “services” in this context.  Due to the variety of meanings
> that “services” can have, it is necessary to avoid ambiguity.
>
> [3]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref3>
> Once the nature of the “services” is clarified, the nature of their
> “use” no longer needs to be clarified.
>
> [4]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref4>
> This is taken almost verbatim from the Second Draft Report, para. 158.
> Since it is a direct comment on the contents of the Bylaw, it should be
> reflected in the draft Bylaw.  Once this is here, Malcolm’s last
> sentence is no longer needed.
>
> [5]
> <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref5>
> This is a recommendation taken from the “Comment Summary PRINCIPLES”
> analysis prepared by WP1 after the second Public Comment period.
>
>
>
> On Mon, Nov 9, 2015 at 7:09 PM, Burr, Becky <Becky.Burr at neustar.biz
> <mailto:Becky.Burr at neustar.biz>> wrote:
>
>     All -
>
>     In advance of our call tomorrow I want to flag the open issue in the
>     Mission Statement – language prohibiting ICANN from regulating
>     "services that use the Internet’s unique identifiers or the content
>     that they carry or provide."
>
>     While there is strong consensus that (1) ICANN’s mission is limited
>     and (2) ICANN should act only in furtherance of its mission, strong
>     and divergent perspectives on the proposed language itself remain.
>     The language has been in the proposed Mission Statement since our
>     Frankfurt meeting last January.  Numerous commenters supported the
>     language in both the first and second comment periods on the grounds
>     that ICANN should not attempt to regulate third parties through its
>     agreements with registries and registrars.  On the other hand, many
>     commenters expressed concerns about potential unintended
>     consequences of this language, and the impact that it might have,
>     for example, on ICANN’s ability to enforce commitments contained in
>     registry and/or registrar commitments (e.g., Public Interest
>     Commitments, special-interest new gTLD applications, etc.).
>
>     The following chart (also attached as a PDF) compares the language
>     in the 2nd Draft Report with language circulated shortly following
>     the Dublin meeting, and suggested language proposed by Greg Shatan
>     and Malcolm Hutty respectively to resolve this issue.   (Another
>     approach, which I floated, was strongly criticized.)  As we review
>     and discuss this language tomorrow, please keep in mind that we have
>     always been clear that the language in the proposed Mission
>     Statement is not final Bylaws language, rather it intended to guide
>     those crafting final Bylaws.  I look forward to a fruitful
>     discussion in 12 hours!
>
>
>     2^nd Draft Report Language____
>
>     	
>
>     Post-Dublin Language____
>
>     	
>
>     Greg Shatan Proposal 2 Nov 2015____
>
>     	
>
>     Malcolm Hutty Proposal 6 Nov 2015____
>
>     ICANN shall have no power to act other than in accordance with, and
>     as reasonably appropriate to achieve its Mission. ____
>
>     Without in any way limiting the foregoing absolute prohibition,
>     ICANN shall not engage in or use its powers to attempt the
>     regulation of services that use the Internet's unique identifiers,
>     or the content that they carry or provide.____
>
>     	
>
>     ICANN shall have no power to act strictlyother thanin accordance
>     with, and only as reasonably appropriate to achieve its Mission. ____
>
>     Without in any way limiting the foregoing absolute prohibition,
>     ICANN shall not regulate services that use the Internet's unique
>     identifiers, or the content that such services carry or provide. ____
>
>     In service of its MissionICANN shall have the ability to enforce
>     agreements with contracted parties, subject to established means of
>     community input on those agreements and reasonable checks and
>     balances on its ability to impose obligations exceeding ICANN’s
>     Mission on registries and registrars.____
>
>     	
>
>     ICANN shall have no power to act other than in accordance with, and
>     as reasonably appropriate to achieve its Mission. ____
>
>     Without in any way limiting the foregoing absolute prohibition,
>     ICANN shall not regulate services that use the Internet's unique
>     identifiers, or the content that such services carry or provide. ____
>
>     ICANN and contracted parties entering into, complying with and
>     enforcing agreements does not constitute regulation.____
>
>       In service of its Mission, ICANN shall have the ability to enforce
>     agreements with contracted parties, subject to established means of
>     community input on those agreements and reasonable checks and
>     balances on its ability to impose obligations exceeding ICANN’s
>     Mission on registries and registrars.____
>
>     	
>
>     ICANN shall only act strictly in accordance withand as reasonably
>     appropriate to achieveits 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 or 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.____
>
>     subject to established means of community input on those agreements
>     and reasonable checks and balances on its ability to impose
>     obligations exceeding ICANN’s Mission on registries and registrars____
>
>     *
>     *
>
>     *
>     *
>
>     *
>     *
>
>     *
>     *
>
>     *
>     *
>
>     *J. Beckwith Burr****
>     **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer
>     1775 Pennsylvania Avenue NW, Washington D.C. 20006
>     *Office:***+1.202.533.2932 <tel:%2B1.202.533.2932>
>     *Mobile:***+1.202.352.6367 <tel:%2B1.202.352.6367> */**neustar.biz*
>     <http://www.neustar.biz>____
>
>
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