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

[Malcolm Hutty]

On 16/11/2015 22:46, Greg Shatan wrote:
> 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 have been reading this thread with interest.

I haven't commented so far, because I don't want to burden the
discussion with further constraints. So long as the eventual text
honours the original intent (and I think all the variants under
discussion do), I could live with any of these options if that is what
is required to reach agreement, even those that have been shown to be
technically defective.

That said, I do think we would be wise to take on board Andrew's
observation that not all Internet communications are "viewed", and
indeed some are purely machine-to-machine communications. Partly for
this reason, and in the interests of simplicity, my favourite option of
those recently tabled is the aggregate Greg proposes above, namely:


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


I would also be content with an explicit carve-out for the RA and RAA if
that is thought necessary. However, I do have one serious concern on one
offer of text. In the phrase
       "other than those covered by the Registrar Accreditation
        Agreement (RAA) or the Registry Agreement (RA)"

I'm afraid "covered by" is unacceptably broad; it could be read as
including anything mentioned within those contracts, which woud enable
those that agree such contracts to defeat the previous clause.

I am not clear on the underlying rationale, but I am guessing that the
RA/RAA contracts may impose requirements on the information services
(e.g. web sites) provided by Registries and Registrars, and so a
carve-out is needed so that this may continue. If this understanding is
correct, I would suggest

       "other than information services provided by parties to
       the Registrar Accreditation Agreement (RAA) or the Registry
       Agreement (RA)"

I hope that helps.

Malcolm.
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            Malcolm Hutty | tel: +44 20 7645 3523
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