[CCWG-ACCT] Board comments on the Mission statement

Fri Nov 20 16:08:58 UTC 2015

The problem with the current "services clause" - "ICANN shall not 
impose regulations on services (i.e., any software process that 
accepts connections for the Internet) that use the Internet's unique 
identifiers, or the content that such services carry or provide ..." 
- is that it doesn't mean what it says; because registrars/registries 
are "services that use the Internet's unique identifiers," and 
because we recognize that ICANN can and does "impose regulations" on them ...

I had proposed a revised "sevices clause" :  ICANN should not be 
allowed to impose -- directly or indirectly, via its contracts -- 
obligations on persons or entities whose only connection to the DNS 
is that they use a domain name for Internet communication.

A couple of people raised a problem: What about the obligation that 
ICANN already imposes, through the RAA, on domain holders to provide 
accurate WHOIS data?  Am I suggesting they can't do that?

No, I'm not.  I suspect there's agreement that ICANN should be 
permitted to do this - but why?  Where does ICANN's authority to 
impose these obligations on name holders (but not others) come 
from?  It comes, n my opinion, from its ability to implement 
consensus policies reasonably necessary to insure the 
security/stability of the DNS, developed by consensus.  ICANN can 
impose these obligations on the holder of the davidpost.com domain 
because the WHOIS policy is one for which "uniform or coordinated 
resolution is reasonably necessary to facilitate the openness, 
interoperability, resilience, security and/or stability of the DNS; 
and was developed through a bottomup, consensus-based 
multi-stakeholder process."

As I've said before, I think this is already captured in the Mission 
Statement; but since others think we should have an additional 
clarifying prohibition, it could read:

"ICANN should not be allowed to impose -- directly or indirectly, via 
its contracts -- obligations on persons or entities whose only 
connection to the DNS is that they use a domain name for Internet 
communication, except for implementation of policies for which 
uniform or coordinated resolution is reasonably necessary to 
facilitate the openness, interoperability, resilience, security 
and/or stability of the DNS; and which are developed through a 
bottomup, consensus-based multi-stakeholder process and designed to 
ensure the stable and secure operation of the Internet's unique names systems."

David

>From: David Post <<mailto:david.g.post at gmail.com>david.g.post at gmail.com>
>Date: Thursday, November 19, 2015 at 4:39 PM
>To: Bruce Tonkin 
><<mailto:Bruce.Tonkin at melbourneit.com.au>Bruce.Tonkin at melbourneit.com.au>
>Cc: Accountability Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
>
>Bruce
>
>One question:  The Board suggests that if language i adopted that 
>says "ICANN shall not impose regulations on services (i.e., any 
>software process that accepts connections for the Internet) that use 
>the Internet's unique identifiers, or the content that such services 
>carry or provide ..." there might be some existing registry 
>agreements that would be "out of compliance with ICANN's 
>responsibilities."  I'd be curious to know what the Board is 
>concerned with there - what parts of which registry agreements might 
>be affected (and made non-compliant) by this language?
>
>With respect to that same "regulations on services" language, the 
>Board says that it is "unclear," and asks for "some examples of what 
>the CCWG believes that ICANN should and should not be able to do."
>
>I agree that the "services" language isn't clear at the 
>moment.  Here's my attempt to capture the point that I think is 
>being made:  ICANN should not be allowed to impose -- directly or 
>indirectly, via its contracts -- obligations on persons or entities 
>whose only connection to the DNS is that they use a domain name for 
>Internet communication.
>
>I think it's pretty straightforward.  I use a domain name 
>(davidpost.com) for Internet communication.  The idea -- and I think 
>pretty much everyone agrees with this? - is that ICANN can't impose 
>any obligations on me that affect how I operate the site, what 
>content I host or don't host, what goods or services I can or cannot 
>offer, what billing system I use for those goods and services, what 
>anti-virus software I install, ... It can't do that directly (by 
>imposing some contract terms on me itself) or indirectly  (by 
>getting 3d parties like the registries or registrars to impose the 
>obligations on me).
>
>Registries and registrars, of course, are not entities "whose only 
>connection to the DNS is that they use a domain name for Internet 
>communication," so this clause shouldn't affect ICANN's ability to 
>impose obligations on them (which remains limited by other portions 
>of the Mission Statement).
>
>David
>
>
>
>David
>
>
>
>At 02:12 AM 11/19/2015, Bruce Tonkin wrote:
>>Hello All,
>>
>>The Board has been considering the CCWG Update on Progress Made In 
>>and After ICANN54 in Dublin published on 15 Nov 2015.
>>
>>The Board information call today considered the changes to the 
>>mission statement identified in that update.
>>
>>Attached is the Board's preliminary comments on the mission 
>>statement part of the Dublin update report.   As we review the 
>>remainder of that Update, we'll send through additional comments.
>>
>>Regards,
>>
>>Bruce Tonkin
>>
>>ICANN Board Liaison to the CCWG
>>
>>
>>
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>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
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>
>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>book (Jefferson's Moose)  http://tinyurl.com/c327w2n
>music http://tinyurl.com/davidpostmusic publications 
>etc.  http://www.davidpost.com
>*******************************

*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music http://tinyurl.com/davidpostmusic publications 
etc.  http://www.davidpost.com
*******************************
*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music http://tinyurl.com/davidpostmusic publications 
etc.  http://www.davidpost.com
*******************************  
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