[CCWG-ACCT] Board comments on the Mission statement

Fri Nov 20 18:07:11 UTC 2015

Bruce,

I've just posted an email to this thread that clarifies what is meant by
"services" in the following 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. ICANN
shall have the ability to negotiate, enter into and enforce agreements with
contracted parties in service of its mission.

The point is that the focus is on *services* such as "web services" running
on a web server, or "mail services" running on a mail server.  The focus is
not on *service providers*, whether registries, registrars, internet
service providers, nail salons or auto mechanics. The parenthetical
language clarifies that and tries to be as technology-agnostic as possible
(I note that it is consistent with the definition of web services in my
other email, which was drafted in 2004), but improvements are always
welcome.  The examples provided in my other email may provide some
inspiration for such improvements.

As such, the novel "revised" "services clause" provided by David Post is
going off in an entirely different direction, and is really of no help in
explaining to the Board (or anyone else) what the above clause means.
Indeed, it no longer deals just with "services" by any definition -- it
refers to "persons or entities," which goes even beyond a misdirected
definition of "services." Also, the concept of "obligations" goes far
beyond the concept of "regulations" in terms of stating the limitations on
ICANN.  Finally,the idea that this focuses on "persons or entities whose
only connection to the DNS is that they use a domain name for Internet
communication" is nowhere found in the clause above or in any of the
discussions I've seen or participated in regarding this provision.  So,
rather than being a "revision" of the current services clause, this
alternative is a completely new construction.

The "idea" that David postulates and then rapidly assumes that "pretty much
everyone agrees with" also goes far beyond and in different directions from
the above clause, which reflects hours of careful discussion and compromise
among a number of participants from different stakeholder groups.  I am
confident that the statement that "pretty much everyone agrees with"
David's idea is false.  I, for one, certainly don't agree with it as a
statement that bears any relationship to the above clause.  As such, I
think it has no value in the work of this group other than to yank it off
course, which I think would be highly counterproductive at this point in
the proceedings.

As to the Board's concerns:

   - "Some existing registry agreements may be out of compliance with
   ICANN's responsibilities if this change is adopted": I, for one, had that
   concern about the language that appears in the November 15 formal update.
   I believe that the current language actually resolves, rather than causes
   this problem.  If the Board disagrees, I think a far more specific
   discussion is needed -- one that clearly identifies the language (or
   change/deletion of language) that causes the Board's concern, and which
   provisions in which existing registry agreements might be out of
   compliance.  Dealing in abstract concerns is not particularly helpful.  As
   far as I know, it was not the intention of any of the drafters to nullify
   or expose to challenge any provisions of any registry or registrar
   agreements.  Of course, this should be clarified, and if the Board has
   identified a "land mine" in the language that has been planted in
   anticipation of a later attempt to challenge provisions of existing
   agreements, that land mind should be extracted and de-fused.
   - The use of the word regulate (which occurs on both the November 15 and
   November 17 language, so I assume the Board's concern covers both
   versions):  I have some sympathy for this, although there are instances of
   "regulation" for rules imposed by a private entity to carry out policy
   rather than rules imposed by a government to carry out laws.  So far,
   though, finding a word that does not substantially change the intended
   meaning has been a challenge (such as when "obligation" was substituted for
   "regulation" as discussed above).  I'm at a loss though to understand what
   risk this use would cause to ICANN.
   - The definition of services: This is discussed above and and in my
   prior email, so I won't reiterate here.  While it could be improved. but it
   clearly points in the right direction and away from the wrong one -- and
   that is critical.

Greg

On Thu, Nov 19, 2015 at 4:39 PM, David Post <david.g.post at gmail.com> wrote:

> 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%A0>
> music http://tinyurl.com/davidpostmusic publications etc.  http://www.davidpost.com
>
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