[CCWG-ACCT] Board comments on the Mission statement

[Malcolm Hutty]

On 20 Nov 2015, at 17:31, Andrew Sullivan <ajs at anvilwalrusden.com> wrote:

>> On Fri, Nov 20, 2015 at 12:06:38PM -0500, Greg Shatan wrote:
>> As stated in the provision, a "service" for the purpose of this clause is "any
>> software process that accepts connections for the Internet) that use the
>> Internet's unique identifiers." As such, it is clearly incorrect to say
>> that "registrars/registries" are "services that use the Internet's unique
>> identifiers.""
> 
> I'm afraid I disagree.  This was the worry I tried to raise when I
> first suggested that language, and I noted in the chat for the call
> the other day.  Whois (and RDAP when it's deployed) is clearly a
> software process that accepts connections from the Internet.  EPP is
> also that.  So is http(s), which is how most registrars interact with
> their customers; there are definitely rules about what they have to
> offer there (e.g. whois data over http -- there are even rules about
> what such data has to say).  There is in fact an argument to be made
> here.

Andrew,

You seem confused.

Registrar businesses are clearly not services in the defined sense: they are not "software processes that accept connections from the Internet". So an attempt to regulate registrar businesses per se is not prohibited by this clause. 

WHOIS is indeed such a service. But does placing a requirement on domain registrants that they disclose to their registrar certain identifying information with the intention that it be published in WHOIS constitute "imposing a regulation on the WHOIS service"? I contend that no reasonable person would think so: the registrant is being regulated, certainly, but the connection with the WHOIS service is entirely incidental; it is immaterial whether the publication is made by means of WHOIS, or web, or notices in the New York Times - the point is that registrant information is collected and published for general availability. 

Let me put this another way. There are only two decision-makers whose interpretation of this clause matters: the ICANN Board, and the IRP. The idea that either of them would deliberately place a tortured interpretation on this clause so as to eliminate the longstanding commitment to the principle that part of ICANN's job is to set rules governing collection and publication of registrant identifying information is ridiculous. 

Any suggestion that either of these would uphold a complaint that WHOIS policy impermissably conflicts with this clause is entirely fanciful, and cannot be taken seriously. 

Malcolm.