[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract
David Post
david.g.post at gmail.com
Wed Nov 11 16:25:41 UTC 2015
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 Internets 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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