[CCWG-ACCT] what ICANN can't regulate (was Re: Board comments on the Mission statement)

[Phil Corwin]

That last message from me was of the inadvertent "pocket" variety/apologies and please ignore.



Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/cell



"Luck is the residue of design" -- Branch Rickey



________________________________________
From: accountability-cross-community-bounces at icann.org [accountability-cross-community-bounces at icann.org] on behalf of Phil Corwin [psc at vlaw-dc.com]
Sent: Friday, November 20, 2015 12:59 PM
To: Andrew Sullivan; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] what ICANN can't regulate (was Re: Board comments on the Mission statement)

Sent from my BlackBerry 10 smartphone.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW. Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VLawDC

"Luck is the residue of design" -- Branch Rickey
  Original Message
From: Andrew Sullivan
Sent: Friday, November 20, 2015 12:58 PM
To: accountability-cross-community at icann.org
Subject: [CCWG-ACCT] what ICANN can't regulate (was Re: Board comments on the Mission statement)


On Fri, Nov 20, 2015 at 11:08:58AM -0500, David Post wrote:
> 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?

I'm sure you're not suggesting that, but that's indeed the apparent
effect.  And of course, in some registries, ICANN is the enforcer of
other terms (because those are the terms under which the top-level
domain is delegated from the root, and if the operator refuses to
impose those terms then it's possible to appeal to ICANN's compliance
department.  Note I'm not observing this with approval, but it is a
fact.)

I'm also a little worried about this "use a domain name for Internet
communication".  There are two ways to do that.  One is to connect to
a service, such as a web page.  That's what most people on the
Internet do, and in that sense more or less everything that connects
to the Internet has this connection to the DNS.  Another is to
register a domain name and offer a service there.  I _think_ this is
what we're trying to prevent ICANN regulating, but strictly speaking
such operators have more than just the "use a domain name for
communication" relationship, because they're all operators of DNS
zones.

Moreover, some such operators we certainly don't want to regulate, but
they're clearly registries in some sense as well.  For instance, my
employer (Dyn) operates dyndns.org and other such services, where
people can register they're dynamicly-assigned addresses as hostnames
in a public zone.  That way you can reach services in your house on
your cable modem (for instance).  Dyn clearly has a greater connection
to the DNS than a simple user of the DNS does, here, but I don't think
we want ICANN to be able to regulate such services.  Dyn is also a
registrar, mostly for convenience, and there's the additional problem
of whether we want ICANN to be able to regulate otherwise-unregulable
things just because the company or individual happens to fall under an
RAA in some other part of its business.  The previous concentration on
services is therefore better because it specifies the thing ICANN
can't regulate, rather than the person or organization.  (Of course,
the old formulation is bad because it catches too any such things.)

> 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.

I am not sure, but I think I disagree.  I think it comes from ICANN's
ability to set terms on the names it will delegate from the zone it
controls -- in this case, the root zone.  In this respect, ICANN is
just like any other zone operator.  It just so happens that they
control a zone in which, ultimately, _everyone_ has dealings with.  So
their policies need to be very broad.  I have policies about what I'll
delegate from anvilwalrusden.com, too; they turn out to be very
restrictive ("things I operate"), but they're the same kind of thing.

And that's ultimately where the problem comes: people have realised
that the root is a place of enormous control, and in order to get
their pet project imposed on the Internet they're willing to try to
use ICANN's control over the root and ignore whatever damage that
might do.  None of this would be a live problem if ICANN hadn't
decided to expand the root and use it as a mechanism to communicate
policy (full disclosure: I wouldn't even have a career if they hadn't
decided that), but they did.  The effort in the "no regulation"
sentence is, I think, an effort to put a genie back in the bottle.
(The "can write contracts" sentence is, of course, necessary to cut
off other side effects of the "no regulation" sentence, and I think
the arguments for it would be very weak without the "no regulation"
sentence.)

> "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."

Doesn't this mostly just duplicate the language already in the mission
statement?  (If it gets us there, I'm not going to object, but it
seems strange to write the same things twice.)

What about collaborating with anti-abuse people in taking down names
that are the source of attacks.  Is that an imposition of an
obligation on someone whose only connection to the DNS is the use you
describe?  It's not covered by any of those restrictions, I think.  If
it _is_ permitted, then we're back to the slippery slope we're trying
to avoid.

I appreciate very much the effort to solve this, but I'm decreasingly
optimistic it's even possible in general language.

Best regards,

A

--
Andrew Sullivan
ajs at anvilwalrusden.com
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community

-----
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15
Internal Virus Database is out of date.
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community

-----
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15
Internal Virus Database is out of date.