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

Greg Shatan gregshatanipc at gmail.com
Tue Nov 17 00:37:38 UTC 2015 

Becky,

I agree with your concern.

Greg

On Mon, Nov 16, 2015 at 7:08 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> 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>
> Date: Monday, November 16, 2015 at 6:12 PM
> To: Becky Burr <becky.burr at neustar.biz>
> Cc: Accountability Community <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
> <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
> <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>
> 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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