[CCWG-ACCT] SIDE BY SIDE on Regulation/Contract language

Greg Shatan gregshatanipc at gmail.com
Mon Nov 16 22:46:59 UTC 2015 

*I sent an email Saturday in an attempt to move the ball on this provision
-- particularly on the provision that Andrew highlights.  Since it may have
gotten lost in the email blizzard, I am pasting it in here as well.  *

*Greg*

This topic was just discussed extensively on the call yesterday and there
was considerable progress.  The recordings, notes, chat and call
transcripts are all available now at
https://community.icann.org/pages/viewpage.action?pageId=56145283.  The
relevant discussion is on pp. 4-19 of the call transcript. It's important
to read the whole section, but the concluding remarks from that discussion
are helpful for us to build on:

​

Becky Burr:              Well, no, I mean, I think that the point is - and
Greg has just echoed me in this - what we are talking about is services,
not service providers. So the question is what is the underlying service,
not what is the nature of the business. So I guess I agree with - I agree
with the way it is set up in this language here.

Thomas Rickert:       Yes, and I guess that what you’ve just refined is a
better description of what Greg I think meant by saying differing classes
of services - class of businesses. So I guess that’s helpful. So I think we
can confirm and please let me know if you do not agree with this, that
 that we are looking for a technology-neutral description of this.

                                 But still if we’re using the technique
that Kavouss has suggested, for example, we could have examples of
technology to illustrate what we mean by the definition that should then go
- or by the language that should then go into the bylaws. Alan, you’ve
raised your hand.

Alan Greenberg:      Yeah, thank you. It [dawns] on me that when we're
looking at the two classes of service, someone may be offering a graphics
design service over the web. Clearly, we are never saying we are going to
be regulating the graphics design service. So at some level we could not -
we don’t have to differentiate because we’re - the higher level service is
always carved out. But since the word has two different very distinct
meanings it’s probably better to be clear. Thank you.

Thomas Rickert:       Thanks very much, Alan. And I think that these are
excellent final words on this conversation. So I think this is as far as we
can get during this call. And with that I’d like to thank you all for your
contributions and for bearing with us for those who are not calling this
their favorite item. And let’s now move to the next agenda item which is
going to be chaired by Mathieu.​

​
​Andrew Sullivan had two suggested revisions to the first part of the
provision
, both of which are consistent with this direction:

   -
*​ ICANN shall not impose regulations on ​services (i.e., any software
   process that accepts​ *
*connections from the Internet) that use the Internet’s unique
   ​ identifiers, or​ the content that such services carry or provide​*

​or, alternatively

   -
*​ICANN  shall not impose regulations on ​​services (i.e., any software
   process that accepts datagrams from the Internet, when those datagrams are
   not themselves necessarily the consequence of a datagram previously sent by
   the software process itself) that use the Internet’s unique identifiers,
   or​ the content that such services carry or provide​*

​
​These parentheticals are both more "technically neutral" than the
parenthetical I circulated ("(i.e., the software processes by which
commands received via the Internet are processed and a response is
generated and transmitted via the Internet, to be viewed in a web browser,
email client, or the like")).  I tend to prefer the first one, which has
the virtue of brevity.   That said, we should see if there are tweaks
consistent with Thomas's summary of the call "we’re not talking about the
service providers or the class of business that they're in but that we're
talking about the technical processes, the technical services."

​Another suggestion came from Milton Mueller:

   -
*ICANN  shall not impose regulations on ​Information services which use the
   Internet’s unique identifiers but are not registries or registrars, or​
   ​t​he content that such services carry or provide*

​In response to James Bladel, Milton suggests "Instead of saying
“registries or registrars” we could simply say “under the Registrar
Accreditation Agreement (RAA) or the Registry Agreement (RA).”

   - ​
* ICANN shall not impose regulations on ​Information services which use the
   Internet’s unique identifiers but are not under the Registrar Accreditation
   Agreement (RAA) or the Registry Agreement (RA), or​ ​t​he content that such
   services carry or provide*​

​Although "information services" could be preferable to "services," the
first suggestion clearly takes us away from describing "technical
processes" and instead describes "service providers" since it refers to
"registries or registrars" as the kind of thing that would be included as
"information services" (unless carved out).  The second suggestion is not
as clearly about "service providers" but it's also not clearly about
"technical services" either (there's not enough information to read it
clearly).

Perhaps there's a way to combine these various thoughts in a manner
consistent with the overall direction, for instance in the following
synthesis:

   - ​​
* ICANN shall not impose regulations on:*
      -
*​ Information services (i.e., any software process that
      accepts​ connections from the Internet) that use the Internet’s unique
      identifiers, other than those covered by the Registrar Accreditation
      Agreement (RAA) or *
*the Registry Agreement (RA), or ​ *
      -
*​ t​he content that such information services carry or provide*​

​or, alternatively (if the carve-out for the RAA/RA seems confusing,
unnecessary or overbroad) ​

   - ​​
* ICANN shall not impose regulations on:*
      -
*​ Information services (i.e., any software process that
      accepts​ connections from the Internet) that use the Internet’s unique
      identifiers, *
* or ​ *
      -
*​ t​he content that such information services carry or provide*​

​In order to focus this email, I haven't touched on the second sentence,
which we should finalize as well.

I look forward to your thoughts.

Greg

On Mon, Nov 16, 2015 at 5:27 PM, Andrew Sullivan <ajs at anvilwalrusden.com>
wrote:

> On Mon, Nov 16, 2015 at 10:15:31PM +0000, Burr, Becky wrote:
> > I am recirculating the slide that compares the 2nd Draft Report language
> with alternative language discussed on our last call.  Although some who
> participated in the discussion found the definition of services to be a bit
> clunky, folks generally felt that this language could work as direction to
> drafters.  We need to reach closure on this issue.
> >
>
> With my usual disclaimer in place, I really strongly advise against
> the "to be viewed" &c. language.  I sent an alternative and I think
> there were some other suggestions as well.  They're all much more
> neutral with respect to technology.
>
> A
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
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