[CCWG-ACCT] Mission/Contract

Christopher Wilkinson lists at christopherwilkinson.eu
Tue Nov 10 18:16:51 UTC 2015


Good evening,

Having listened to the debate on the CCWG conference call earlier today, may I offer a few reflections on the issue to hand:

1.	insofar as this discussion is a ramification of the classic debate between IPR and ISP over intermediary liability, I suggest that will not be resolved in the ICANN context.
	There are other fora to address that, which may take into account 'content' and 'services' which are beyond ICANN's scope.

2.	Whilst sympathising with Malcolm's narrow definition of ICANN's mandate, I think he takes his case a step or two too far.

	(a) there are not, in my view, 'voluntary' contractual conditions. If a TLD is delegated upon certain conditions, then those must be respected.
	Thus I concur with Alain's insistence that such conditions shall be enforceable. (Particularly if they are formal 'Public Interest Conditions, aka PICs'.)
	Also, please bear in mind that the general obligation on ICANN to respect applicable local law (Article 4 of the Articles of Incorporation) extends to all its contracted parties.

	(b) ICANN and the Registry/Registrar applicants for new gTLDs have allowed new TLDs in otherwise strictly regulated sectors under applicable local laws.
	As was once said 'nobody asked you … ', but having done so, those Registries (and their Registrar owners) have placed themselves in the mainstream of the regulation of content for the benefit of users and the general public in the sectors concerned. 

Thus, either ICANN has to enforce conditions in those DNS markets that (pace Malcolm) go well beyond the narrow ICANN mandate, or ICANN and those Registries/Registrars should never have got themselves into those putative DNS markets in the first place. 

3.	From a more general economic point of view, I expect these issues to become really, really, serious because of the low take-up and problematic viability of numbers of the new gTLDs. I expect that the pressure will be on to apply restrictions and obligations as flexibly as possible for the sake of the survival of otherwise questionable excursions into niches of the DNS, where public policy issues might be perceived as burdensome if not irrelevant.

Just a few thoughts

CW




On 10 Nov 2015, at 14:27, 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 Internet’s 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
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange | http://publicaffairs.linx.net/
> 
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