[CCWG-ACCT] Mission/Contract

Malcolm Hutty malcolm at linx.net
Tue Nov 10 10:12:07 UTC 2015



On 10/11/2015 08:58, Andrew Sullivan wrote:


> I can see an argument in either direction.  In favour, there is the
> point that ICANN could still undertake regulation of content or
> services by using its leverage over delegations.  Since we all agree
> that ICANN should not be a quasi-regulator of content and services on
> the Internet, it would be good to add the restriction.

Great, so we're in agreement about the underlying aim here.

> I nevertheless feel the argument against the specific limitations may
> be stronger.  The more limited mission statement restricts (or is
> supposed to) ICANN to the root zone of the DNS rather than all
> name-type unique identifiers.  ICANN still needs to ensure the "stable
> and secure operation", also.  Those two points ought to combine to
> restrict ICANN's freedom of movement on any particular content or
> service, because the only option ICANN would have would be to remove
> the delegation from the root zone.  

I'm afraid your assumption that "the only option ICANN would have would
be to remove the delegation from the root zone."

If ICANN were to attempt the regulation of the content of web sites, the
means by which it would do so would be

i) to write into Registry agreements a duty to ensure that that content
does not appear, and to take enforcement actions if it does; and
ii) in the event that the Registry fails to enforce the prohibition of
certain content, to enforce its contract against the Registry

This can be done without removing the delegation from the root zone.

Absent a specific prohibition, it will be very difficult to be confident
that ICANN will not behave as above (or, if it did, that it could be
successfully challenged). The existence of a contract between ICANN and
the Registry, and the enforcement thereof in case of breach, is both
necessary and desirable, so we can't have anything that says or means
that having such a contract or its enforcement is prohibited to ICANN.
All the remains is to preclude ICANN from including certain provision in
such a contract. I can't see how that level of granularity can be
achieved without a specific prohibition.

I hope this clarifies why we think that the prohibition is necessary.

> I hope this is helpful; and again, I'm not trying to butt in, so
> please feel free to tell me to take a long walk into the changing tide!

Not at all, your interventions are very welcome, and all participation
is welcome and valid.

Any references to taking a long walk will be addressed only to your
argument :-)


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