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

[Greg Shatan]

Milton,

I don't consider clarifying that "service" refers to a technical process a
"hang up."  I think that actually reflects what is intended in the wording
of this provision.

We have been referring to "services that use the Internet's unique
identifiers."  What kind of "services" actually "use" the Internet's unique
identifiers?  Service *businesses* don't really "use" the Internet's unique
identifiers. Sure, they may own domain names and they may type in domain
names when they use email clients or web browsers -- but so do
product-based businesses, end users, IGOs, sovereigns, etc., so a reference
to services in particular and not to every other kind of user makes no
sense.  Yet "services that use the Internet's unique identifiers" was
chosen on purpose rather than some completely different expression.  It's
become increasingly clear to me that what this refers to is a service such
as a web service, mail service, etc., that runs on a web server, mail
server, etc., and the "use" of the Internet's unique identifiers that's
referred to is the actual technical process that occurs when that software
is "found" or communicates using the DNS.  Other language bears this out --
a service *business* doesn't really "carry" content, but a web service or a
mail service clearly does (think of "carry" as a variant of "carriage" or
"carrier").  This understanding of "use" is also demonstrated by the
Malcolm Hutty proposal on November 6, which referred to use of the
Internet's unique identifiers by services "to enable or facilitate their
reachability over the Internet."  It's the software-service that needs to
be "reached" using the DNS, not a person or a business that is being
"reached."

So, I actually contend that we are on the right track here, and not "hung
up."  As my re-posted email indicates, Andrew Sullivan had a couple of
constructions for the parenthetical that advanced discussions beyond my own
attempt (and which are in my re-posted email), and which are more
"technology neutral."  Of course, there's a certain challenge to describing
a technological process in a way that is "technology neutral" -- but since
ICANN is an entity that carries out a technical mission, it's a challenge
that has been met many times before and I'm confident it will be met again
here.  We're already closer than we were just a few days ago.

Greg

On Mon, Nov 16, 2015 at 6:12 PM, Mueller, Milton L <milton at gatech.edu>
wrote:

>
>
> 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] *On Behalf Of *Greg
> Shatan
> *Sent:* Monday, November 16, 2015 5:47 PM
> *To:* Andrew Sullivan
> *Cc:* 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.  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>
> 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
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