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

[David Post]

At 11:58 AM 11/11/2015, Burr, Becky wrote:
>So you would drop both the language about 
>regulation and the language about contracts?  If 
>so, that's what I proposed several days ago 
>(which was not well received.). Or am I misunderstanding?

Yes, that is my position; I would support dropping both.

The contract language should be dropped because 
the language proposed would do substantial damage 
to much of the entire accountability project, 
giving ICANN an easy way to work around the 
limitations in the Mission Statement.

The "regulation" language does less harm, so in 
my opinion dropping it is less critical.  But I 
don't think it adds anything much beyond 
additional confusion to the mission statement; if 
the mission statement doesn't already prohibit 
this kind of "regulation," we should amend it so 
that it does.  I think it already does the job, 
but I wouldn't object strongly if the final 
proposal contained something like a statement that
  "Without limiting the foregoing absolute 
prohibition, ICANN shall not regulate the content 
carried or provided by services that use the Internet's unique identifiers."

David


>On Nov 11, 2015, at 8:39 AM, David Post 
><<mailto:david.g.post at gmail.com>david.g.post at gmail.com> wrote:
>
>>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
>>blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>>book (Jefferson's Moose)  http://tinyurl.com/c327w2n
>>music http://tinyurl.com/davidpostmusic 
>>publications etc.  http://www.davidpost.com
>>*******************************

*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music http://tinyurl.com/davidpostmusic 
publications etc.  http://www.davidpost.com
*******************************  
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