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

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Wed Nov 11 21:39:02 UTC 2015


Fair enough David, but I am skeptical.  First, such negation declarations
have a way of being ignored by courts in ways that actual lanague is not.
Second, the negation is particularly likely to be ineffective when the
drafting history is so robust and so 
 frankly 
 contradictory.  Given the
posts we’ve seen from many on this list – well educated and thoughtful ones
from e.g. Greg and Malcolm – the absence of any clarification and firm
result – one way OR the other – will be seen as purposefully baking in
ambiguity and papering over differences.  That is certainly how I would read
it.

 

Or to put it in the affirmative – if we cannot state in plain language what
it is that ICANN can do and what it cannot, we can’t reasonably expect the
IRP to understand that.  For myself, I could probably accept your limitation
as helping in that regard 


 

Cheers

Paul

 

Paul Rosenzweig

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Skype: paul.rosenzweig1066

 
<http://www.redbranchconsulting.com/index.php?option=com_content&view=articl
e&id=19&Itemid=9> Link to my PGP Key

 

 

From: David Post [mailto:david.g.post at gmail.com] 
Sent: Wednesday, November 11, 2015 2:45 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
Cc: 'Burr, Becky' <Becky.Burr at neustar.biz>; 'ACCT-Staff'
<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 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
<mailto:david.g.post at gmail.com> ] 
Sent: Wednesday, November 11, 2015 1:17 PM
To: Burr, Becky <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz> >
Cc: ACCT-Staff (acct-staff at icann.org <mailto:acct-staff at icann.org> )
<acct-staff at icann.org <mailto:acct-staff at icann.org> >; Accountability
Community <accountability-cross-community at icann.org
<mailto: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 <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 

book (Jefferson's Moose)  http://tinyurl.com/c327w2n
<http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0>      

music http://tinyurl.com/davidpostmusic publications etc.
http://www.davidpost.com <http://www.davidpost.com      %20/>        

******************************* 


*******************************
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
<http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>       
music http://tinyurl.com/davidpostmusic publications etc.
http://www.davidpost.com <http://www.davidpost.com       %20/>         
******************************* 


*******************************
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
<http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>       
music http://tinyurl.com/davidpostmusic publications etc.
http://www.davidpost.com <http://www.davidpost.com        />         
******************************* 

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