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

Burr, Becky Becky.Burr at neustar.biz
Wed Nov 11 14:47:14 UTC 2015


Could I get you to expand on one point Robin, Paul and others?  To the extent ICANN obligates registrars to make registrants agree to submit to a UDRP, is that regulation of parties not in privity of contract with ICANN?  What about the requirement that registrants provide accurate WHOIS Information.  What about the new gTLD applicant guidebook prohibition on Strings at the top level that advocate behavior that violateS globally accepted human rights standards? 

These examples are things that ICANN does right now. Are they ultra vires under the regulatory prohibition?  If not, why not?

Sent from my iPad

> On Nov 11, 2015, at 8:30 AM, Robin Gross <robin at ipjustice.org> wrote:
> 
> I do not agree that there lacks consensus on including the text which states ICANN won't regulate content.  There IS consensus on that point, but not full consensus because a small minority disagrees with that position (IPC).  Some in the BC don't even take this extreme IPC position.   
> 
> Many different parts of the community have commented that this is a crucial component to our proposed accountability plan, so taking it out at this stage, simply because the IPC won't relent is unacceptable.  The other parts of the community have to accept that we don't always get everything we want, and I find it difficult to understand why the same standard doesn't apply to the IPC - why we continue to go in circles until the IPC is satisfied.  These extra bites at the apple must stop.  We need some strength and backbone in our chairs and rapporteurs to not allow a small minority to impose this on the rest of the community, simply by refusing to relent until time runs out.  
> 
> Deleting this point, which has been repeatedly stated as crucial for such a wide segment of the community will create much more trouble for the acceptance of our report than not allowing the IPC to get everything it wants.   
> 
> Robin
> 
>> On Nov 10, 2015, at 7:19 PM, Malcolm Hutty wrote:
>> 
>> 
>> 
>>> 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
>>  Head of Public Affairs | Read the LINX Public Affairs blog
>> London Internet Exchange | http://publicaffairs.linx.net/
>> 
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>>      Monument Place, 24 Monument Street, London EC3R 8AJ
>> 
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>> 
>> 
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