[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract
David Post
david.g.post at gmail.com
Wed Nov 11 19:44:47 UTC 2015
At 02:10 PM 11/11/2015, Paul Rosenzweig wrote:
>As I said earlier, there are two reasons not to
>do what Becky proposed, even though it is quite
>an elegant effort to say more by saying
>less. The first is the unfortunate drafting
>history that will give credence to arguments that the deletion has meaning.
But that can be relatively easily dealt with by
means of an accompanying statement, no? "The
deletion does not reflect a consensus that ICANN
is authorized to regulate content. The consensus
is in precisely the opposite direction, but we
believe that this is already achieved by the
language in the mission statement ..." or something like that?
>The second is that affirmative restrictions are
>much more readily enforceable than are
>limitations on authorization – compare in the US
>our muddled Commerce Clause jurisprudence with
>most (though admittedly not all) of our
>understanding of the Bill of Rights. I still
>think it would be a very unfortunate mistake
>with long-term collateral adverse unintended consequences.
I can see that - as I said, I'd support including something like:
"Without limiting the foregoing absolute
prohibition, ICANN shall not regulate the content
carried or provided by services that use the Internet's unique identifiers."
Doesn't that do the job? If you think it
doesn't, what is it about the missing language
(referring to the impermissibility of regulating
"services that use the Internet's unique system
of identifiers") that you think needs to be in there?
David
>
>From: David Post [mailto:david.g.post at gmail.com]
>Sent: Wednesday, November 11, 2015 1:17 PM
>To: Burr, Becky <Becky.Burr at neustar.biz>
>Cc: ACCT-Staff (acct-staff at icann.org)
><acct-staff at icann.org>; Accountability Community
><accountability-cross-community at icann.org>
>Subject: Re: [CCWG-ACCT] Attempt to summarize
>discussion regarding Mission and Contract
>
>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>http://www.washingtonpost.com/people/david-post
>
>book (Jefferson's
>Moose)
><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n
>music
><http://tinyurl.com/davidpostmusic>http://tinyurl.com/davidpostmusic
>publications
>etc. <http://www.davidpost.com />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>http://www.washingtonpost.com/people/david-post
>book (Jefferson's
>Moose)
><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n
>music
><http://tinyurl.com/davidpostmusic>http://tinyurl.com/davidpostmusic
>publications
>etc. <http://www.davidpost.com />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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