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

[David Post]

At 04:42 PM 11/11/2015, Mueller, Milton L wrote:

>Thank you David for clarifying your position, which is that you do 
>NOT support deleting both statements and DO want to keep a clear 
>affirmative restriction in place. You have proposed to modify the 
>wording of the restriction in the following manner:
>
>DP: "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?
>
>MM: Possibly. It depends on whether regulating content also means 
>regulating the type or nature of the service provided. If content 
>was interpreted broadly I could accept this formulation

Milton - I don't think we're that far apart in this, and I don't want 
to beat a dead horse - but just to clarify my own position.

It's not quite correct to say I do NOT support deleting both 
statements - I do.  If it were entirely up to me, I would delete both 
the "contract" language and the "regulation" language.

But it's not entirely up to me, of course - and, obviously, many 
others feel strongly, with you and Paul, that some sort of "clear 
affirmative restriction" specifying what ICANN CANNOT do needs to be 
put in place.  I'm saying I don't object to that, though it's not the 
direction I would go.

If there is going to be some affirmative restriction language,it 
needs to be clear and unambiguous - otherwise, it is likely to do 
more harm than good, in my opinion; because it will have to be 
somehow reconciled with the Mission statement, it has the potential 
to muddy up interpretation of the Mission statement itself.

My problem with the "regulation clause" language is primarily with 
the formulation that "ICANN shall not regulate services that use the 
Internet's unique identifiers," because it seems to me that, under a 
perfectly reasonable reading of that language, that is exactly what 
ICANN does do - it promulgates and enforces rules for registries and 
registrars, who provide "services that use the Internet's unique 
identifiers."  I don't know how we would expect someone (the IRP) to 
understand what it is we're trying to get at, with that language, and 
it will just lead to all sorts of interpretive mischief.

Which leaves the prohibition against "regulating the content carried 
or provided by services that use the Internet's unique 
identifiers."  You write:
>MM:  Possibly.  It depends on whether regulating content also means 
>regulating the type or nature of the service provided. If content 
>was interpreted broadly I could accept this formulation

The problem, though, is that we have to decide to accept or reject 
the formulation before we know how it's going to be interpreted.  I'm 
not sure I know how you would want to make "content" as broad as you 
would like it to be.

David

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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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