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

Avri Doria avri at acm.org
Wed Nov 11 18:22:21 UTC 2015


+1

Well said.
thanks.

On 11-Nov-15 15:16, David Post wrote:
> 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 <david.g.post at gmail.com
>> <mailto: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
>>> <http://www.washingtonpost.com/people/david-post>
>>> book (Jefferson's Moose)  http://tinyurl.com/c327w2n    
>>> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0>
>>> music http://tinyurl.com/davidpostmusic
>>> <http://tinyurl.com/davidpostmusic> publications etc. 
>>> http://www.davidpost.com      
>>> <http://www.davidpost.com%A0%A0%A0%A0%A0%A0%A0/>
>>> ******************************* 
>
> *******************************
> David G Post - Senior Fellow, Open Technology Institute/New America
> Foundation
> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
> <http://www.washingtonpost.com/people/david-post>book (Jefferson's
> Moose)  http://tinyurl.com/c327w2n     
> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>
> music http://tinyurl.com/davidpostmusic
> <http://tinyurl.com/davidpostmusic> publications etc. 
> http://www.davidpost.com       
> <http://www.davidpost.com%A0%A0%A0%A0%A0%A0%A0%A0/>
> *******************************
>
>
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