[CCWG-ACCT] Board comments on the Mission statement

[Silver, Bradley]

I want to echo and support Greg’s response below.  Milton’s position that an existing provision of the RAA is out of the scope of ICANN’s mission is illuminating.  I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s mission in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion.   If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Sunday, November 22, 2015 3:01 AM
To: Mueller, Milton L
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement

Milton,

I strongly disagree that 3.7.7 is out of scope of ICANN's mission.  I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements.  3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction.  They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.

Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7?  Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?

Thanks.

Greg

On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>> wrote:


> -----Original Message-----
>
> See section 3.7.7 of the registrar accreditation agreement (RAA):
> https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
>
> 3.7.7.9 The Registered Name Holder shall represent that, to the best of the
> Registered Name Holder's knowledge and belief, neither the registration of
> the Registered Name nor the manner in which it is directly or indirectly used
> infringes the legal rights of any third party.

Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction?  They cannot know this until and  unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?

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