[CCWG-ACCT] Board comments on the Mission statement

Mon Nov 23 16:01:23 UTC 2015

Becky
After some digging I now view 3.7.7.9 as primarily a way to shield ICANN from liability, which in some ways might actually help it to avoid mission creep (if, e.g., people start suing ICANN to get it to control the actions of people using domains that have nothing to do with DNS governance). However, there may also be a danger that this provision could be used for precisely the opposite purpose. Someone might ask ICANN to take away domains because a domain registrants is “indirectly” using an online service to infringe the legal rights of a third party. So you, Greg, Alan and Bradley tell me: what exactly are the legitimate and necessary activities that ICANN would be prevented from doing if that provision was not in the R.A.A., or if the word “indirectly” was removed?

Looking forward to a concrete answer.

--MM

From: Burr, Becky [mailto:Becky.Burr at neustar.biz]
Sent: Monday, November 23, 2015 10:04 AM
To: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement

Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?

Section 3.7.7.9 of the RAA has been in place from the beginning of time.  Here is the language from the 2001 RAA:

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.
Here it is in the 1999 RAA:

7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.

As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>>
Date: Sunday, November 22, 2015 at 10:06 PM
To: "Silver, Bradley" <Bradley.Silver at timewarner.com<mailto:Bradley.Silver at timewarner.com>>, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, "Mueller, Milton L" <milton at gatech.edu<mailto:milton at gatech.edu>>
Cc: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement

I rarely fill people's mailboxes just to do this, but in this case;

+1

Alan

At 22/11/2015 08:31 PM, Silver, Bradley wrote:

I want to echo and support Gregâ€™s response below.  Miltonâ€™s position that an existing provision of the RAA is out of the scope of ICANNâ€™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 ICANNâ€™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> [ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
>
> 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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