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

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Wed Nov 11 13:29:27 UTC 2015


Dear Becky (and others in WP2)

I apologize for not having chimed in earlier -- but many large commitments
have limited my participation.  Permit me to react at a slightly different
level -- for me, an iron clad mission limitation is the single defining
characteristic of what we need out of the transition -- even more than the
IRP and the ST18 limits.  Because, in the end, a concrete justiciable
limitation on ICANN doing more than what it is assigned to do in managing
the network is all that stands between the users and, in the end, some
unrestrained monopoly.

To that end, I cannot support a statement that suggests that any voluntary
commitment between a registry and ICANN is per se enforceable by ICANN.  I
can easily imagine many situations in which a registry and ICANN might in
friendly agreement both expand on ICANN's mission.  If we lose that
limitation -- if we go the way of endorsing all voluntaryily assumed
obligations, we lose much control over ICANN and that is a prospect I do not
think we should accept.

As to your question #2 -- I have supported that language for a long time and
I do not see any real ambiguity in the terms regulate and services.  For
"regulate" I mean " control or supervise (something, especially a company or
business activity) by means of rules and regulations."   As for services, I
think it applies quite simply to the intangible products provided.
Traditionally, it is distinguished from a physical good.  To be sure in both
definitions there are edge cases and gray areas -- but that is true of any
language at all.    So I think the language is clear enough to provide a
justiciable standard.

If you are concerned about that then we could get more "lawyerly" and use
the BC formulation related to privity of contract.  I could support that as
well.

But I am fundamentally concerned that in a rush to try and find a consensus
we are relaxing our basic demands for ICANN accountability.  So to return to
my original notation above -- without a firm limitation on ICANN, one that
cannot be modified by voluntary contractual agreement between ICANN and
others, we lose all ability to restrain ICANN's mission.  The voluntary
contract exception swallows the mission limitation rule and I would strongly
urge us not to go in that direction.

So -- Question 1:  Disagree strongly.  Question 2: Agree, with the
definitions I have given.

Warm regards
Paul



Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
O: +1 (202) 547-0660
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Link to my PGP Key



-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr at neustar.biz] 
Sent: Tuesday, November 10, 2015 9:10 PM
To: Malcolm Hutty <malcolm at linx.net>; Accountability Community
<accountability-cross-community at icann.org>; ACCT-Staff
(acct-staff at icann.org) <acct-staff at icann.org>
Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission
and Contract

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 |
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>DDkMr4k&m=meioLcwo4WoKkpjbb8u-zgp25NiZ0ljNmk77u-KFnfI&s=Otta_4g1f9RBJbUkPa
>ovRLs9e9UkRYWqz25dWn6TU1Y&e=
>
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