[CCWG-ACCT] Mission/Contract

Tue Nov 10 20:34:44 UTC 2015

Good evening CW,

Sorry 2b is not correct . Registries that originally applied for a "closed
generic "  have now been required  to change their business model to an
"open generic" in any particular vertical. Only one, Scripps' .food
delegation has slipped through the net.
http://domainincite.com/?s=scripps+.food+

No Registrar is an owner of a new TLD Registry.

I have agree that ICANN's  scope,mandate is deliberately narrow.

ICANN current mandate has nothing to do with content, but  delegations into
the root zone. We open up a hornets nest if we change the scope to content
management/ enforcement.

ICANN can currently (for each  Registry contract) bring in an EBERO to
manage/ enforce the contract and so must ensure TLD Registrations continue
to resolve.

ICANN just can't withdraw the delegation from the root zone or can it ? 

Regards,

Phil   

From: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
Christopher Wilkinson
Sent: 10 November 2015 18:17
To: accountability-cross-community at icann.org Accountability
Subject: Re: [CCWG-ACCT] Mission/Contract

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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