[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract
Metalitz, Steven
met at msk.com
Wed Nov 11 16:12:23 UTC 2015
My responses to Becky’s two specific questions:
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.”
AGREE.
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.” - Wherever you land, please
explain what you mean by “regulate” and “services."
DISAGREE, to the extent that provisions in contracts entered into after full opportunity for public comment are defined as “regulation.” Also DISAGREE to the extent that “services that use the Internet’s unique identifiers” includes, e.g., domain name registration.
One of the defining features of the multi-stakeholder model for management of the DNS is the reliance on contractual arrangements, in lieu of governmental regulation. If ICANN’s mission is defined in a way that impinges substantially on the ability to enforce those contracts, then it seems to me the entire model is at risk.
One point that those in this discussion who are relatively new to ICANN may not fully appreciate is the extent to which all the terms of contracts between ICANN and gTLD registries and accredited registrars are subjected to public comment and robust debate before they are executed. For example, not only were there two or three rounds of formal public comment on draft versions of both the standard new gTLD Registry Agreement and the 2013 Registrar Accreditation Agreement; there were also numerous earlier opportunities for public input into the structure and contents of these agreements, including (for the RAA) through a joint GNSO-ALAC drafting team that identified and prioritized issues for inclusion in the RAA revision (its final report was published in October 2010) and (for the gTLD Registry Agreement) through the public comment proceedings on the numerous drafts of the new gTLD Applicant Guidebook between 2008 and 2012. Proposed contract renewals for the legacy gTLDs are also posted for public comment, and sometimes multiple rounds of such comments.
While these opportunities for public debate and input are not the same as the full-blown Policy Development Process used within the GNSO to develop consensus policies, they constitute an extraordinary level of transparency, compared to contract negotiations in almost any other setting, whether private sector or public sector. While this transparency has certainly been irksome to contracted parties at times, and also frustrating to interested non-parties at times (since many of our suggestions, tendered through the public input and comment processes, were not ultimately incorporated into the agreements), it has become a firmly established feature of contract development in the ICANN environment. The concerns expressed by some in this discussion about the potential for outlandish or rogue contract provisions, or the asserted lack of “checks and balances” in the system, need to be evaluated in light of this reality.
Steve Metalitz
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Steve DelBianco
Sent: Wednesday, November 11, 2015 10:08 AM
To: Burr, Becky; Malcolm Hutty; Accountability Community; ACCT-Staff (acct-staff at icann.org)
Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract
As Becky noted, the BC supports a limited mission for ICANN that would not allow content regulation — but the BC also insisted that ICANN could enforce its contracts.
Anyone citing the BC position should understand the full BC comment on CCWG’s 2nd draft:
2.1) Element of potential concern to the BC: New bylaws might prevent ICANN from enforcing contracts and Public Interest Commitments with registries and registrars.
In our Jun-2015 comments on the CCWG’s 1st draft, the BC raised a concern with the proposal to limit the scope of ICANN’s mission via the Bylaws, worrying that it would prevent ICANN from taking appropriate steps to enforce certain provisions of its contracts.
As we stated in our Jun-2015 comments, the BC believes that ICANN should be able to enforce contracts that are voluntarily entered by registries and registrars, and to enforce contract terms that are voluntarily added by new gTLD registries in the form of Public Interest Commitments
However, public comments from Danielle Kehl and David Post at New America requested stress tests designed to suggest that ICANN’s enforcement of contract provisions such as section 3.18 of the 2013 RAA could violate the new limited mission and prohibition on regulation of services and content12.
The BC believes that the CCWG’s bylaws text is not clear on the tension between contract enforcement and a limited mission for ICANN.
On the one hand, CCWG’s text could be read to prevent ICANN from enforcing Public Interest Commitments, or from agreeing to other contract provisions implementing consensus policies. On the other hand, CCWG’s text does not effectively limit ICANN from acting outside consensus policy in the implementation of those contracts.
The BC asks CCWG to resolve the ambiguity with more clarity in the final proposal.
From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Becky Burr <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>
Date: Tuesday, November 10, 2015 at 11:10 PM
To: Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>>, Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, ACCT-Staff <acct-staff at icann.org<mailto: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://neustar.biz>
<http://www.neustar.biz<http://www.neustar.biz>>
On 11/10/15, 7:55 PM, "Malcolm Hutty" <malcolm at linx.net<mailto: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<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<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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