[CCWG-ACCT] Board comments on the Mission statement

Fri Nov 20 21:11:41 UTC 2015

Greg:

I'd be interested to know how you would respond 
to Andrew Sullivan's hypothetical:

>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?

Wouldn't that be prohibited under your language 
as "a regulation on services ... that use the Internet's unique identifiers"?

I think what confuses me is the meaning you're giving to "use." You wrote:

>I am saying that the type of "use" referred to 
>here is not the use in the sense of owning a 
>domain name or typing in a domain name, whether 
>its being done by registry operators, registrars 
>or my Aunt Tillie.Â  They may initiate a chain 
>of events that leads to a software process 
>"using" an IP address or domain name, but 
>initiating that chain of events is not using a 
>unique identifier, any more than I use a carburetor when I drive a car.

But you DO "use a carburetor" when you drive a 
car, just as you use your car's tires, 
transmission, etc. when you drive it.  Is that incorrect?

To reiterate something I said elsewhere, I'm not 
at all opposed to crafting the prohibition to 
concentrate on the services that ICANN cannot 
regulate, if we can find language that does the job well.

David

At 01:07 PM 11/20/2015, Greg Shatan wrote:
>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.Â
>
>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.Â  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.Â  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.Â  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.Â  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.Â  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.Â  I am confident 
>that the statement that "pretty much everyone 
>agrees with" David's idea is false.Â  I, for 
>one, certainly don't agree with it as a 
>statement that bears any relationship to the 
>above clause.Â  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.Â  I believe that 
> the current language actually resolves, rather 
> than causes this problem.Â  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.Â  Dealing in abstract concerns is 
> not particularly helpful.Â  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.Â  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): Â 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.Â  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).Â  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.Â  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 
><<mailto:david.g.post at gmail.com>david.g.post at gmail.com> wrote:
>Bruce
>One question:Â  The Board suggests that if 
>language i adopted that says â€œICANN 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."Â  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.Â  Here's my attempt to capture 
>the point that I think is being made:Â  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.Â
>
>I think it's pretty straightforward.Â  I use a 
>domain name 
>(<http://davidpost.com>davidpost.com) for 
>Internet communication.Â  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 indirectlyÂ  (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.Â Â  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
>><mailto:Accountability-Cross-Community at icann.org>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>http://www.washingtonpost.com/people/david-post 
>
>book (Jefferson's 
>Moose)Â 
><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2nÂ 
>Â Â Â Â
>music 
><http://tinyurl.com/davidpostmusic>http://tinyurl.com/davidpostmusic 
>publications etc.Â  http://www.davidpost.comÂ Â Â Â Â Â Â
>*******************************
>_______________________________________________
>Accountability-Cross-Community mailing list
><mailto:Accountability-Cross-Community at icann.org>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
*******************************  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151120/877175b0/attachment-0001.html>