[CCWG-ACCT] Mission/Contract

[Burr, Becky]

while mindful of Paul Rosenzweig¹s legislative history concern, it is the
risk of inadvertently over-riding or confusing the description of ICANN¹s
names-related mission that worries me most in our present efforts to find
language that captures a very nuanced position




J. Beckwith Burr 
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
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On 11/10/15, 8:27 AM, "Malcolm Hutty" <malcolm at linx.net> wrote:

>
>
>On 10/11/2015 12:25, Andrew Sullivan wrote:
>>>
>>> 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.
>> 
>> How?  ICANN has basically two sticks at its disposal: it can sue
>> people, or it can remove the delegation.  Apart from that, it's hard
>> to see what force ICANN has to bring to bear.
>
>You answer your own question.
>
>If someone has contracted with ICANN to do something, ICANN can insist
>upon it. It may sue if necessary, but usually this won't be necessary
>because it will be obvious that if it does it will win.
>
>ICANN should be prevented from entering into an agreement whose purpose
>is to achieve something that it is outside ICANN's Mission to seek to
>achieve. If we say otherwise, and allow ICANN to do anything
>
>> But I think that's a
>> distraction, because I reject the premise that ICANN would be in a
>> position to write those terms into the agreements in the first place,
>> because that would be ICANN stepping beyond its mission, unless you
>>think that such policies could be reasonably covered by these terms:
>> 
>>         € For which uniform or coordinated resolution is reasonably
>>           necessary to facilitate the openness, interoperability,
>>           resilience, security and/or stability:
>>         € That are developed through a bottom-up, consensus-based
>>           multi- stakeholder process and designed to ensure the stable
>>           and secure operation of the Internet¹s unique names systems.
>
>Andrew, I think you have misunderstood what is being proposed by those
>who disagree with me.
>
>What our colleagues are proposing is to override this clause. They are
>saying that ICANN should be able to do anything allowed by the above,
>*plus also* to enter into and enforce agreements that go far outside
>what is allowed by the above.
>
>So if a Registry offers to promise that the CEO will greet Fadi every
>Monday morning by tapdancing in Fadi's office, then they say ICANN
>should be permitted to enter into that contract and enforce it, provided
>only that the Registry's offer was made "voluntarily" (whatever that
>means in practice.
>
>> It seems to me that it would be hard to argue ICANN could impose the
>> terms this way, because they wouldn't be consensus-based or bottom-up.
>
>These agreements are in addition to consensus-based bottom-up policy.
>
>
>-- 
>            Malcolm Hutty | tel: +44 20 7645 3523
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