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

Wed Nov 11 21:32:49 UTC 2015

Paul is right, David is wrong. You can't drop both, unless you don't want to have an effective limit on ICANN's mission
--MM

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Wednesday, November 11, 2015 2:11 PM
To: 'David Post' <david.g.post at gmail.com>; 'Burr, Becky' <Becky.Burr at neustar.biz>
Cc: '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

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.  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.

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweigesq at redbranchconsulting.com>
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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<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

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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       />
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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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