[CCWG-ACCT] Board comments on the Mission statement

[Silver, Bradley]

David:

I strongly agree that ICANN's mission is already appropriately limited and scoped in the general Mission Statement, and that the prohibition is not necessary.

But assuming we have crossed the Rubicon on the possibility of deleting the whole prohibition,  I have a question about your revised language: In your view, does Section 3.18.1 of the RAA regarding obligations of registrars in relation to illegal conduct involving the use of a domain name, fall within ICANN's Mission?  If your answer is, "it depends", then please see my comment below.

The problem I have with subjecting each and every provision of ICANN's agreements to a threshold test is that it will unclear in many cases whether that test can be met.  This is not a feature of ICANN's overreach, but simply the fact that agreements such as the RAA and contain a number of provisions relating to the conduct or activity of third parties, which are a specific implementation of broadly accepted policy.  I am very concerned about imposing a detailed litmus test for a set of provisions in agreements, which until now have been regarded as an acceptable implementation of ICANN's Mission.  Not every provision of every agreement would have been subjected to the bottom-up consensus-based multistakeholder process, but contractual and commercial certainty is needed to ensure that we are all clear that provisions such as those now in place are not going to be subject to a new vetting process to establish their enforceability.

Bradley

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of David Post
Sent: Friday, November 20, 2015 11:09 AM
To: Burr, Becky
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement


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 <david.g.post at gmail.com<mailto:david.g.post at gmail.com> >
Date: Thursday, November 19, 2015 at 4:39 PM
To: Bruce Tonkin < Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au>>
Cc: Accountability Community < accountability-cross-community at icann.org<mailto: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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*******************************
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     <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0>
music http://tinyurl.com/davidpostmusic publications etc.  http://www.davidpost.com       <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      <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>
music http://tinyurl.com/davidpostmusic publications etc.  http://www.davidpost.com        <http://www.davidpost.com        />
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