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

[David Post]

At 09:10 PM 11/10/2015, Burr, Becky wrote:
>SNIP   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

I disagree.

This is the camel sneaking its nose under the 
tent.  ICANN is, in effect, a monopoly provider 
of registration (and other) services to the 
Internet community.  Having a single provider of 
these services is, of course, desirable for many 
reasons.  But like all monopolists, it can get 
consumers of its services to "voluntarily assume" 
any number of obligations - with respect to both 
price and non-price terms in their contracts - 
that are not in the best interest of the 
community as a whole, and which consumers would 
never agree to in a competitive market where 
there were alternative sources of supply to which 
they could turn.  This is precisely what the 
accountability mechanisms should be guarding against.

The whole point of this accountability exercise, 
and of the careful delineation of ICANN's 
Mission, in my opinion, is to ensure that ICANN 
cannot act outside of that mission - including 
acting by means of including (and enforcing) 
contractual terms that are offered to, and 
"voluntarily" assumed by, registries and 
registrars (who have no alternatives to accepting ICANN's terms).

>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 agree with the thrust of this statement, though 
I do not believe that it is well-crafted to the 
job it is trying to do.  The statement, in 
context, is intended just to clarify the 
"absolute prohibition" against acting in a manner 
that is not "reasonably appropriate to achieve 
[ICANN's] mission," without limiting that 
prohibition in any way.  But it is not doing that job well.

First, I don't know what definitions of 
"regulate" and "services" could make the 
statement that "ICANN shall not regulate services 
that use the Internet's unique identifiers" a 
correct one.  Registries and registrars offer 
"services" that "use the Internet's unique 
identifiers" - if "services" means what it 
ordinarily means ("the performance of any duties 
or work for another; helpful or professional 
activity" - Webster's).  And ICANN clearly 
"regulates" registries and registrars - if 
"regulates" means what it ordinarily does, i.e. 
proposing, imposing, and enforcing binding rules 
of conduct on those entities.

So saying "ICANN shall not regulate services that 
use the Internet's unique identifiers" is, at best, muddying the waters.

As for regulating "the content that such services 
carry or provide," if this is not already taken 
care of in the Mission Statement, it should 
be.  I believe that it is.  ICANN can only

"coordinate the development and implementation of 
policies for which uniform or coordinated 
resolution is reasonably necessary to facilitate 
the openness, interoperability, resilience, 
security and/or stability [and] that are 
developed through a bottom-up, consensus-based 
multistakeholder process and designed to ensure 
the stable and secure operation of the Internet’s unique names system."

As long as there's no "contract exception" to 
that "absolute prohibition," this excludes the 
kind of content regulation we're concerned about.

David



*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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