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

Tue Nov 17 00:08:20 UTC 2015

Following up on this and the comparison I just circulated, and putting aside my rapporteur hat for a moment, I believe that Milton’s proposal to change “in furtherance of its Mission” to “insofar as those agreements are consistent with its Mission” moves us backwards.  We have articulated a clear and limited Mission.  We have stated that ICANN may act only in accordance with and as reasonably appropriate to achieve its Mission.  Registrar Accreditation Agreements and Registry Agreements are commercial agreements between registrars and ICANN and registries and ICANN.  While I do support established means of community input on those agreements and reasonable checks and balances on ICANN's ability to impose obligations exceeding ICANN’s Mission on registries and registrars, I do not support open ended language that creates ongoing uncertainty about whether such contracts are enforceable.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: <Mueller>, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>
Date: Monday, November 16, 2015 at 6:12 PM
To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>
Cc: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: RE: [CCWG-ACCT] SIDE BY SIDE on Regulation/Contract language

Becky and Greg:

I am sorry I was not able to be on this call but it occurred in the middle of the IGF.
The problem with the conversation in the transcript below is that it is still hung up on some kind of technical definition of ‘service,” when all you need to do is come up with a way of differentiating registry and registrar service (which ICANN can legitimately regulate) from ALL other services (which it should not regulate. So again, I ask, what is wrong with this?

ICANN shall act strictly in accordance with, and only as reasonably appropriate to, achieve its Mission.  Without limiting the foregoing:

  *   ICANN shall not impose regulations on:
     *   Information services which use the Internet’s unique identifiers but are not registries or registrars, or
     *   The content that such services carry or provide
  *   ICANN shall have the ability to enter into and enforce agreements with contracted parties, insofar as those agreements are consistent with its Mission.

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Monday, November 16, 2015 5:47 PM
To: Andrew Sullivan
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] SIDE BY SIDE on Regulation/Contract language

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<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D56145283&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=RuURmV3O5rw2xc5BBd-rOGy3VmtvsbpF9jJ0MNEF61E&s=2B_pxB-lUI7HFZBwXpjNiTIxvxwmEmgndnm-grRZd3w&e=>.  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:
o    
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

o    
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:
o    
Information services (i.e., any software process that accepts

connections from the Internet) that use the Internet’s unique identifiers,  or

o    
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<mailto: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<mailto:ajs at anvilwalrusden.com>
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org<mailto:Accountability-Cross-Community at icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=RuURmV3O5rw2xc5BBd-rOGy3VmtvsbpF9jJ0MNEF61E&s=FClqdT_MP4lKv09m4ckfr4t67wGmgiChmfM0eOYpiks&e=>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151117/21e08096/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Mission 16 November 2015.pdf
Type: application/pdf
Size: 399262 bytes
Desc: Mission 16 November 2015.pdf
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151117/21e08096/Mission16November2015-0001.pdf>