[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Burr, Becky Becky.Burr at neustar.biz
Wed Nov 11 02:10:17 UTC 2015


Malcolm et al:

I have to agree that the 11 comments appended by Malcolm express strong
support for the notion that ICANN should not use its contractual authority
to ³regulate services that use the DNS or the regulation of content these
services carry or provide² and that ICANN should not attempt to establish
obligations on non-contracted parties.² But the very commenters cited (BC,
USCIB, etc.) also request clarification regarding ICANN¹s authority to
enforce its contracts.  What are we to make of this?  IMHO it reflects a
lack of consensus on the specific questions posed.

With all due respect Malcolm, I will take a back seat to no one as a
consistent and ardent defender of ICANN¹s limited mission. I completely
respect your right to question the ³picket fence,²  but I will also stand
hard in defense of that line.  That is the original bargain, and I
personally will honor it. (IMHO, ICANN¹s legitimacy turns on its
commitment to honor the "picket fence.²) That said, I believe I have
fairly represented the diversity of views on the specific language in the
proposed Mission statement.  Of course, all are free to disagree.

So I will restate the specific questions for the CCWG:

1. Do you agree or disagree with the following statement: "To the extent
that registry operators voluntarily assume obligations with respect to
registry operations as part of the application process, ICANN should have
the authority to enforce those commitments.²

2. Do you agree or disagree with the following statement: "ICANN shall not
regulate services that use the Internet's unique identifiers, or the
content that such services carry or provide.²  - Wherever you land, please
explain what you mean by ³regulate² and ³services."

I would be very interested in responses to these specific an limited
questions.




J. Beckwith Burr 
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz
<http://www.neustar.biz>




On 11/10/15, 7:55 PM, "Malcolm Hutty" <malcolm at linx.net> wrote:

>
>Dear Becky,
>
>According to our charter, the following definitions are used:
>a) Full Consensus - a position where no minority disagrees; identified
>by an absence of objection
>b) Consensus ­ a position where a small minority disagrees, but most agree
>
>See 
>https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_d
>isplay_acctcrosscomm_Charter&d=CwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifz
>m6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=meioLcwo4WoKkpjbb8u-zgp25NiZ0ljNmk77u
>-KFnfI&s=vuS0ygH1S_caOlGOjf5UrjN2jLRgPKyjKzjzdS825Y8&e=
>
>
>I am writing to supply evidence that two of your consensus level
>estimations are not consistent with these standards.
>
>I am writing to disagree with your estimation of the level of consensus
>on certain points.
>
>> o   To the extent that registry operators voluntarily assume obligations
>> with respect to registry operations as part of the application process,
>> ICANN should have the authority to enforce those commitments.
>> 
>>   /NOTE:  There is not ³full consensus² on this position/.
>
>To the extent that this principle as stated would override the principle
>that ICANN should not seek to regulate the content of web sites or the
>general business practices of domain registrants (parties who have no
>privity of contract with ICANN), I believe there is widespread
>disagreement with your proposal in evidence in the public comment record.
>
>Please find attached 11 comment extracts from the first public comment
>period. I have chosen these 11 comments as being examples that clearly
>and unequivocally expresses opposition to your proposed principle, to
>the extent stated above. These comments come from a broad range of
>stakeholders, including a Congressional Resolution.
>
>I therefore content that the correct assessment is that there is *no
>consensus* in favour of this principle.
>
>> *We do not appear to have consensus on the following concept*:  /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./
>
>The same attached comments express clear support for this concept, and
>in many cases explicit endorsement of the wording.
>
>The only criticism of it in the public comment was from the intellectual
>property stakeholders spread across BC/IPC.
>
>Since there is both broadly based support and the only objections to
>this principle come from a narrow segment of the community, I contend
>that the proper assessment is that this principle *has achieved
>consensus, stopping short of full consensus*.
>
>> Coordinating development, implementation, and enforcement of Consensus
>>Policy, as defined by Specification 1 of the New gTLD Registry Agreement
>>and Specification 4 of the 2013 Registrar Accreditation Agreement, is
>>within ICANN¹s Mission.
>
>Becky, I'm afraid the only person who keeps coming back to Specification
>1/Spec 4 as an adequate statement of the bounds of the Mission is you.
>And whenever you do so, it is challenged.
>
>I don't think you have any basis whatsoever for claiming that this group
>as a whole has selected these documents as its view of the best or most
>appropriate way to define or describe the parameters of the Mission, let
>alone the best mechanism for recording those parameters.
>
>I contend that the text in the first and second public comment rounds
>has a much better claim to represent a consensus view of how to draw the
>bounds of ICANN's Mission in this area. Unlike those demanding further
>changes, I offer evidence in support of this claim, in the form of the
>attached document.
>
>It seems to me deeply regretable and contrary to our declared aims of
>transparency and inclusion to disregard both the general tenor and
>explicit recommendations of the public comment, and to allow vitally
>important last minute changes to be pushed through at the behest of a
>small group merely because that group has greater stamina for conducting
>a war of attrition.
>
>Removing the widely popular restriction on ICANN's Mission would
>dishonour the public comment. For that reason, this group really ought
>not to support your proposal. Public comment replies should matter.
>
>There being no new proposal that has reached consensus and that still
>honours the public comment response, the only proper course is to
>proceed with the existing text. Those few that disagree may be invited
>submit a minority statement, should they wish to do so.
>
>
>Kind Regards,
>
>Malcolm.
>
>-- 
>            Malcolm Hutty | tel: +44 20 7645 3523
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange |
>https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net
>_&d=CwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W
>DDkMr4k&m=meioLcwo4WoKkpjbb8u-zgp25NiZ0ljNmk77u-KFnfI&s=Otta_4g1f9RBJbUkPa
>ovRLs9e9UkRYWqz25dWn6TU1Y&e=
>
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>

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