[CCWG-ACCT] Board comments on the Mission statement

David Post david.g.post at gmail.com
Mon Nov 23 16:22:16 UTC 2015 

Well, this is illuminating ...

I take it that at least you and Greg (and perhaps 
others) think that it is within ICANN's power to 
enforce, via its power over the DNS entries, 
local pornography laws, or consumer protection 
laws, or defamation laws, or ... on the grounds 
that registrants have to promise not to infringe 
any rights of any third parties in any activity 
they undertake "on the website to which the 
domain points."  So ICANN can set up a 
Pornography Dispute Resolution Procedure, a 
Consumer Protection Dispute Resolution Procedure, 
a Defamation Dispute Resolution Procedure, to 
enforce these promises that registrants have 
supposedly made and to take down violators.

My response is:  I don't think they have that 
power at present, I don't think they have had 
that since the beginning of (ICANN) time, and I 
sure as heck don't want to them to have it once 
they are in control of the root and USG oversight is removed.

David


At 10:51 AM 11/23/2015, Silver, Bradley wrote:
>David,
>
>That’s an overly narrow reading of RAA 3.7.7.9 
>Â - its not only that the registration of the 
>Registered Name infringes or its “direct 
>use”, but also that the manner in which is 
>indirectly is used.  I can’t see how the 
>“indirect” use of the domain cannot also be 
>attributed to infringing uses on the website to 
>which the domain points.  If that’s not at 
>least an “indirect” use, I don’t know what 
>is. Â Â While I agree with your conclusion, I 
>don’t agree with the reasoning, and I expect 
>there are others (like Milton) who would like to 
>see the clear meaning of the language of 3.7.7.9 
>changed through the application of the “no regulation” sentence.Â
>
>Bradley
>
>From: David Post [mailto:david.g.post at gmail.com]
>Sent: Monday, November 23, 2015 10:37 AM
>To: Burr, Becky
>Cc: Alan Greenberg; Silver, Bradley; Greg 
>Shatan; Mueller, Milton L; Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
>
>At 10:03 AM 11/23/2015, Burr, Becky wrote:
>
>
>Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
>
>No, I don't think this was out of scope, because 
>it concerns the "registration" of the name and 
>the manner in which THE NAME is used.  3.7.7.9 
>does not say, in my opnion, that the registrant 
>has to promise that it is not doing anything at 
>a website that is infringing; the promise is 
>that the name is not being used in an infringing manner.
>
>D
>
>At 10:03 AM 11/23/2015, Burr, Becky wrote:
>
>
>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 ICANN̢۪s 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 
>/ <http://www.neustar.biz>neustar.biz
>
>From: Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca >
>Date: Sunday, November 22, 2015 at 10:06 PM
>To: "Silver, Bradley" 
><<mailto:Bradley.Silver at timewarner.com> 
>Bradley.Silver at timewarner.com>, Greg Shatan 
><<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com  
> >, "Mueller, Milton L" <<mailto:milton at gatech.edu>milton at gatech.edu>
>Cc: Accountability Community 
><<mailto:accountability-cross-community at icann.org> 
>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 Greg’s 
>resposposponse below.  Milton’s position 
>that an en existinting provision of the RAA is 
>out of the scope of ICANNâ€Ã¢Ã¢„¢s mission 
>is illuminating. sp; I had been operating on the 
>(hopeful) presumption that what we were 
>attempting to do was find a way to describe 
>ICANN’s missionion in a manner that 
>refleflects 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: 
><mailto:accountability-cross-community-bounces at icann.org>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 <<mailto:milton at gatech.edu>milton at gatech.edu> wrote:
>
>
> > -----Original Message-----
> >
> > See section 3.7.7 of the registrar accreditation agreement (RAA):
> > 
> <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=>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?
>
>_______________________________________________
>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
>
>
>=================================================================
>Reminder: Any email that requests your login 
>credentials or that asks you to click on a link 
>could be a phishing attack.  If you have any 
>questions regarding the authenticity of this 
>email or its sender, please contact the IT 
>Service Desk at 212.484.6000 or via email at 
><mailto:ITServices at timewarner.com>ITServices at timewarner.com
>
>
>=================================================================
>
>=================================================================
>This message is the property of Time Warner Inc. 
>and is intended only for the use of the
>addressee(s) and may be legally privileged 
>and/or confidential. If the reader of this message
>is not the intended recipient, or the employee 
>or agent responsible to deliver it to the intended
>recipient, he or she is hereby notified that any 
>dissemination, distribution, printing, forwarding,
>or any method of copying of this information, 
>and/or the taking of any action in reliance on
>the information herein is strictly prohibited 
>except by the intended recipient or those to whom
>he or she intentionally distributes this 
>message. If you have received this communication in
>error, please immediately notify the sender, and 
>delete the original message and any copies
>from your computer or storage system. Thank you.
>=================================================================
>_______________________________________________
>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
>_______________________________________________
>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) 
><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n 
>
>music 
><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic 
>publications 
>etc.  <http://www.davidpost.com         />http://www.davidpost.com
>*******************************
>
>=================================================================
>Reminder: Any email that requests your login 
>credentials or that asks you to click on a link 
>could be a phishing attack.  If you have any 
>questions regarding the authenticity of this 
>email or its sender, please contact the IT 
>Service Desk at 212.484.6000 or via email at 
><mailto:ITServices at timewarner.com>ITServices at timewarner.com
>
>
>=================================================================
>
>=================================================================This 
>message is the property of Time Warner Inc. and 
>is intended only for the use of theaddressee(s) 
>and may be legally privileged and/or 
>confidential. If the reader of this messageis 
>not the intended recipient, or the employee or 
>agent responsible to deliver it to the 
>intendedrecipient, he or she is hereby notified 
>that any dissemination, distribution, printing, 
>forwarding,or any method of copying of this 
>information, and/or the taking of any action in 
>reliance onthe information herein is strictly 
>prohibited except by the intended recipient or 
>those to whomhe or she intentionally distributes 
>this message. If you have received this 
>communication inerror, please immediately notify 
>the sender, and delete the original message and 
>any copiesfrom your computer or storage system. 
>Thank you.=================================================================

*******************************
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/20151123/a101d72a/attachment-0001.html>

More information about the Accountability-Cross-Community mailing list