[CCWG-ACCT] Board comments on the Mission statement

Fri Nov 20 18:37:15 UTC 2015

Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 20 Nov 2015 19:07, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
>
> 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.
>
SO: FWIW (even though I have hinted this  before) service providers are
actually referred to as such because they provide services and those
services could include web services, mail services et all. So when you say
focus is not on service providers but on the providers you may want to
recheck that.

Overall, I hope we will soon realise that trying to define services in
restrictive context is a tall order and could have unintended implications
if such description gets included in a mission statement.

Regards

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
>>>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>> *******************************
>> 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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