[CCWG-ACCT] Board comments on the Mission statement

Tue Nov 24 05:36:59 UTC 2015

Hello,

It is my hope that we will recognise that this issue does not seem to have
a direction yet, and any attempt to include some form of wording into the
mission statement may be premature.

Considering that this does not have any dependency on the transition (it
doesn't necessarily fall within things that MUST be in place before
transition), I will suggest that it be noted for continuous discussion in
WS2.

Regards

Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 24 Nov 2015 06:00, "Greg Shatan" <gregshatanipc at gmail.com> wrote:

> David,
>
> Sorry to turn off your "illumination," but that's not a fair or accurate
> statement of my concerns or my position.  At best, it's an extremist
> caricature.  Nobody here (or anywhere) has advocated having ICANN "set up a Pornography
> Dispute Resolution Procedure, a Consumer Protection Dispute Resolution
> Procedure, [or] a Defamation Dispute Resolution Procedure."
>
> Once you set up a strawman like that, it's pretty easy to get agreement
> that it's beyond ICANN's scope.  It's also pretty irrelevant to the actual
> issues we're discussing.
>
> Under 3.18, ICANN is not the "enforcer" or even in the chain of events
> regarding any particular abuse complaint.  Furthermore, it doesn't even
> have "power over the DNS entries" for second level domains on a granular,
> case-driven basis, as far as I can see.  Right now, there's broad
> discretion on the part of each registrar as to how it will meet the
> requirements of 3.18, and if the registrar is dealing with an abuse
> complaint where that registrar finds that terminating the registration is
> appropriate, the registrar exercises its "power over the DNS entries."
>
> None of this is remotely close to the "power" that is the basis of your
> email.  Since I'm not asserting that ICANN has or should have this power, I
> can actually agree with your stirring statement.  But, as stated before
> that's pretty irrelevant to the reality we're dealing with, and even to the
> restrictions you have proposed, which go far beyond what is necessary to
> prevent ICANN from doing what you've summarized above.
>
> However, if all we need to do is prevent the power you've postulated from
> being exercisable, we may not be so far apart -- we actually be able to
> come to agreement.
>
> Greg
>
> On Mon, Nov 23, 2015 at 11:22 AM, David Post <david.g.post at gmail.com>
> wrote:
>
>>
>> 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,
>>
>> Thatâ€™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 â€œdirect useâ€ ,
>> but also that the manner in which is *indirectly* is used.Â  I canâ€™t
>> see how the â€œindirectâ€ use of the domain cannot also be attributed to
>> infringing uses on the website to which the domain points. Â If thatâ€™s
>> not at least an â€œindirectâ€ use, I donâ€™t know what is. Â Â While I
>> agree with your conclusion, I donâ€™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
>> â€œno regulationâ€ sentence.Â
>>
>> Bradley
>>
>> *From:* David Post [ mailto:david.g.post at gmail.com
>> <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 ICANNÃ¢€™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 >
>> Date: Sunday, November 22, 2015 at 10:06 PM
>> To: "Silver, Bradley" < Bradley.Silver at timewarner.com>, Greg Shatan <
>> gregshatanipc at gmail.com >, "Mueller, Milton L" <milton at gatech.edu>
>> Cc: Accountability Community < 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 GregÃƒÂ¢€™s resposposponse below.
>> MiltonÃƒÂ¢€™s position that an en existinting provision of the RAA is out
>> of the scope of ICANNÃƒÂ¢€Ã¢Ã¢„Â¢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 ICANNÃƒÂ¢€™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: accountability-cross-community-bounces at icann.org [
>> mailto:accountability-cross-community-bounces at icann.org
>> <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>
>> 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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>> *******************************
>> 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
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>> *******************************
>> 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
>> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>
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>> <http://tinyurl.com/davidpostmusic%A0> publications etc.  http://www.davidpost.com
>>
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