[CCWG-ACCT] Board comments on the Mission statement

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Sat Nov 21 00:41:09 UTC 2015


Hello Greg,

>> 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.

I think as Andrew Sullivan pointed out - I would consider most of the processes that registries and registries use to register domain names as services that use the Internet's unique identifiers.   That is a very general statement.

 
>>  • "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.

I have asked the legal staff at ICANN to provide some examples.

Here is one that occurs to me though.   The current new gTLD registry agreements in Specification 5   (http://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-09jan14-en.htm) have a provision that restrict the ability of a registrant to register a country or territory name, or names relating to the International Olympic Committee; International Red Cross and Red Crescent Movement.

These are examples of content in domain names that have some restrictions.   There are no technical or security reasons for such restrictions.   The restrictions have been put in place on the basis of "public policy" advice from the GAC.



>>  • 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).

Yes - this is mostly a concern from ICANN legal staff.   My understanding is that "regulate" has a specific meaning in the US law context and applies to the role of governments.   I think it is possible to find another term that aligns with our practices.   Ie ICANN develops policies, and incorporates those policies in  registry, registrar and registrant (through their agreements with registrars) agreements.   ICANN has a compliance team to ensure that registries, registrars, and registrants comply with those policies.     An alternative formulation of the text could therefore be:  ICANN does not impose "contractual terms" ...


>>  • The definition of services: This is discussed above 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.

The Board certainly agrees with the intent of the language.   It just needs refinement.   Probably the best the group can do is to clearly define the intent, and allow time for appropriate language to be developed.

Part of clarifying the intent is to give clear examples of what ICANN should not be doing as part of its role.

Regards,
Bruce Tonkin




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