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

[Malcolm Hutty]

On 11/11/2015 02:10, Burr, Becky wrote:
> 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.) 

Do you mean to imply that more than those two did?

> also request clarification regarding ICANN¹s authority to
> enforce its contracts.  What are we to make of this?  

That's misleading. They didn't make a generalised, open-ended request
for clarification that opens the door to you to construct an entirely
new principle inconsistent with the main principle. They had a proposal
of their own.

BC said:

BC strongly support the proposition that ICANN should not attempt to
establish obligations on non-contracted parties. Paragraph 60 should be
clarified and we propose that it should read as follows: “ICANN shall
not engage in or use its powers to attempt to establish contractual
obligations on companies with which it is not in privity of contract and
shall not attempt to establish contractual obligations on contracted
parties that are not agreed by such parties.”

Similarly, USCIB said:

Indeed, ICANN’s entire multi-stakeholder structure is built on a
self-regulatory system implemented through contractual obligations and
thus ICANN can only establish contractual obligations on parties with
which it has privity through a negotiated and mutually agreeable
contract/amendment with such parties. Therefore, para 60 should be
clarified and we propose that it should read as follows: “ICANN shall
not engage in or use its powers to attempt to establish contractual
obligations on companies with which it is not in privity of contract and
shall not attempt to establish contractual obligations on contracted
parties that are not agreed by such parties.”


This new language is simply not consistent with the proposition that
ICANN should have any ability to enter into contracts with Registries
for the purpose of regulating (or controlling, or
any-of-a-number-of-other-verbs) the companies who register domain names,
their business models or the content those companies carry on their web
sites. Doing any of those things would entail "establishing contractual
obligations on companies with which it [ICANN] is not in privity of
contract", which is precisely what they say ICANN must not do.


> With all due respect Malcolm, I will take a back seat to no one as a
> consistent and ardent defender of ICANN¹s limited mission. 

Take care, Becky. You are starting to make it sound as though your own
self-image as the defender of ICANN's limited mission is getting in the
way of recognising other input with that same aim, but with which you
personally 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

The expressed view of these 11 commenters (including, I note, the formal
submission of the BC) clearly gives their answer to this question as
"disagree", at least inasmuch as those obligations impose further
obligations on third parties (registrants) that limit what content they
may carry or provide on their web sites and suchlike services.

There is simply no fair reading of these 11 commenters' submissions that
could answer this question as "agree", without first adding very
substantial qualifications to the generality of your proposition.

> 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."

9 of these 11 have said they agree, and accept the wording - so they
don't accept your suggestion that the words "regulate" or "services" are
unclear in the context used in the Draft Report.

2 of these 11 have also said they agree, but propose alternate wording
to achieve that; you may consider this wording, quoted above, as
responsive to your question about defining "regulate" and "services".


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

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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