[CCWG-ACCT] Board comments on the Mission statement

Greg Shatan gregshatanipc at gmail.com
Tue Nov 24 05:59:43 UTC 2015


i object to this newly-proposed language.  This is truly being proposed at
the 12th hour, as we already have our Third Draft in front of us for
review.  Second, it is an entirely new formulation of alleged boundaries
around ICANN's mission.  It bears no resemblance to any prior generally
accepted, or even generally considered formulation of ICANN's mission.
Instead, it is based on a novel theory of what falls inside and outside of
ICANN's mission, or more accurately, what the author wishes fell inside or
outside of ICANN's mission.  This might be appropriate or interesting in a
theoretical paper or a think-tank document, but now is not the time to try
and bake theories about the underpinnings of ICANN's mission into the
Bylaws.

On substance, this proposal raises a host of problems.  The concept of a
"domain causing harm to third parties" is at best a crude and off-target
representation of an idea -- what constitutes "harm"?  How does that relate
to any current or future policy relating to domain disputes, none of which
talk about harm as such?   There's really no time to consider the issues in
depth without sacrificing the ability to review the draft of our Third
Draft Report, which cannot be a sacrifice any of us should be asked to
make. Even if we did not have the draft in front of us, the time left to
consider this is completely inadequate.

The example given also has some dangerous infirmities, but I've run out of
time to talk about them since our call's about to start.

Greg

On Mon, Nov 23, 2015 at 6:25 PM, David Post <david.g.post at gmail.com> wrote:

>
> Here's my crack at the restrictive language that should be included.  I
> tried to leave the the statement in the current draft as is, but made
> several additions to it that hopefully cover the things some of us are very
> concerned about.
>
> The language below is all from the latest draft, except for the added
> language IN ALL CAPS:
>
>
> ***************
> The Mission of The Internet Corporation for Assigned Names and Numbers is
> to ensure the stable and secure operation of the Internet's unique
> identifier systems as described below. Specifically, ICANN:
>
> 1. Coordinates the allocation and assignment of names in the root zone of
> the Domain Name System ("DNS"). In this role, ICANN’s Mission is to
> coordinate the development and implementation of policies:
>
> For which uniform or coordinated resolution is reasonably necessary to
> facilitate the openness, interoperability, resilience, security and/or
> stability of the Domain Name System;
>
> That are developed through a bottom-up, consensus-based multi-stakeholder
> process and designed to ensure the stable and secure operation of the
> Internet’s unique names systems. . . .
>
> ICANN shall act strictly in accordance with, and only as reasonably
> appropriate to achieve its Mission.
>
> ICANN shall not (a) impose regulations on services (i.e., any software
> process that accepts connections from the Internet) that use the Internet’s
> unique identifiers, or the content that such services carry or provide, OR
> (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR
> CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO
> THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD
> PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND
> SECURE OPERATION OF THE DOMAIN NAME SYSTEM.
>
> lCANN shall have the ability to negotiate, enter into and enforce
> agreements with contracted parties IN SERVICE OF its Mission.
>
> ************************
>
>
> The language added above attempts to rein in ICANN's ability to "regulate"
> things other than the registration and allocation of names. So, for
> instance, insofar as a TLD has been designated to have a particular meaning
> (to imply certain characteristics of those who register in that domain -
> e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual
> conditions on registrants to satisfy those characteristics, because
> otherwise the registration of the name is misleading and can potentially
> cause harm.  At the same time (to use Bruce's earlier example) ICANN cannot
> impose contractual conditions/obligations on whomever has registered
> computer.expert (or davidpost.org) regarding the use of Apple's
> trademarks, because in that case, while there might well be harm (to
> Apple), the harm does not flow from the registration of the domains
> computer.expert or davidpost.org, nor is it the kind of harm that somehow
> threatens the stability or security of the DNS.
>
> David
>
>
>
> d
>
>
> At 04:18 PM 11/23/2015, Burr, Becky wrote:
>
> First, I believe that Registrars agreed to this provision in the course of
> negotiations.  While I would like a mechanism for contracted parties to
> challenge ICANN’s “take it or don’t sign†negotiating ultimatums,
> this doesn’t fall into that bucket as far as I am concerned.  And I agree
> with the general principle that contracts should be enforceable by the
> parties to the agreement.
>
> Beyond that, the language of 3.18 in question imposes obligations on
> *registrars* – maintain an abuse pooint of contact, investigate
> allegations regarding illegal activities, take appropriate action, so I
> don’t think that amounts to regulating registrants.  I also agree that
> there are situations in which illegal activity could impact the stability
> and security of the Internet’s unique identifiers (e.g., particularly
> involving malicious DNS exploits, etc.), so the provision seems to me to be
> appropriate in furtherance of ICANN’s Mission.
>
> The problem, of course, is that not all illegal activity threatens the
> stability and security of the DNS; behavior that is illegal in some
> jurisdictions is not illegal in all jurisdictions;  and the
> legality/illegality of a particular activity is generally a determination
> left to sovereigns or courts.  So, what constitutes an “ appropriate
> response†is going to vary from case to case.  Theoretically, ICANN could
> choose to enforce the requirement in a manner that exceeded the scope of
> its authority, e.g., it could begin to say that registrars who do not
> suspend registrations in response to allegations that an underlying site is
> defamatory are in breach.  But I think 3.18 itself is a legitimate contract
> provision that ICANN should be able to enforce.
>
>
> *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: <Silver>, Bradley < Bradley.Silver at timewarner.com>
> Date: Monday, November 23, 2015 at 2:37 PM
> To: Becky Burr <becky.burr at neustar.biz >, David Post <
> david.g.post at gmail.com >
> Cc: Alan Greenberg <alan.greenberg at mcgill.ca >, Greg Shatan <
> gregshatanipc at gmail.com >, "Mueller, Milton L" <milton at gatech.edu>,
> Accountability Community < accountability-cross-community at icann.org>
> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
>
> Thanks Becky,
>
> The question is not whether ICANN’s authority to enforce policies
> regarding resolutions of domain name disputes can be stretched to websites,
> the question is whether under the RAA, ICANN can validly require registrars
> to maintain an abuse contact and take certain steps in response to reports
> of Illegal Activity – which is defined to include conduct *involving* use
> of a Registered Name.   Putting aside the issue of defamation and
> infringement etc, let’s assume for a moment that the Illegal Activity in
> question is not inherent in the domain name itself but rather *involves*
> the use of the name, either directly or indirectly.  And let’s further
> assume that such use is something that a reasonable person might argue
> impacts ICANN’s ability to ensure the stable and secure operation of the
> Internet's unique identifier systems.  I had thought that the language we
> were searching for would permit ICANN to act in those circumstances.
> Unless you are you taking the position that we know all we need to know
> today about what those circumstances might be, and whether ICANN’s
> activity could be impinged by the language we have been discussing, then
> you must acknowledge that we are doing brain surgery in the dark here by
> trying to constrain ICANN’s mission with language that has imprecise
> meaning.
>
> Bradley
>
>
>
> *From:* Burr, Becky [mailto:Becky.Burr at neustar.biz
> <Becky.Burr at neustar.biz> ]
> *Sent:* Monday, November 23, 2015 1:38 PM
> *To:* Silver, Bradley; David Post
> *Cc:* Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability
> Cross Community
> *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
>
> Bradley,
>
> 3.7.7.9 speaks about the registration and use of a “Registered Name.â€
> A "Registered Name" refers to a domain name within the domain of a
> gTLD…about which a <gTLD Registry Operator (or an Affiliate or
> subcontractor thereof engaged in providing Registry Services) maintains
> data in a Registry Database, arranges for such maintenance, or derives
> revenue from such maintenance.†  To me, that refers to registration and
> use of a string, and not a web site.
>
> That is also consistent with the registrar form of the “picket fence,"
> which allows ICANN to unilaterally obligate registrars to comply with
> policies (a) covering specific topics and (b) developed in accordance with
> specified procedures designed to ensure that they are supported by
> consensus.  The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013
> RAA) covers policies regarding resolution of disputes regarding the
> registration of domain names (as opposed to the use of such domain names,
> but including where such policies take into account use of the domain
> names.)   So, under the Registrar’s form of picket fence, if ICANN has
> developed a Consensus Policy that covers resolution of *disputes about
> registrations* (e.g., the UDRP, the Rapid Suspension policy, etc.), and
> that policy takes use into account (I.e, in the case of the UDRP for
> example, registration of a name “in bad faith†as defined in the UDRP),
> it is within ICANN’s authority.
>
> The question is, could ICANN’s authority to enforce policies regarding
> resolution of disputes regarding the *registration of domain names* be
> stretched to construe use of a *web site* (as opposed to the string
> itself) for defamation?  I agree with David, 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.â€
>
> Becky
>
>
> *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: *<Silver>, Bradley < Bradley.Silver at timewarner.com>
> *Date: *Monday, November 23, 2015 at 11:47 AM
> *To: *David Post <david.g.post at gmail.com >
> *Cc: *Becky Burr <becky.burr at neustar.biz >, Alan Greenberg <
> alan.greenberg at mcgill.ca >, Greg Shatan <gregshatanipc at gmail.com >,
> "Mueller, Milton L" <milton at gatech.edu>, Accountability Community <
> accountability-cross-community at icann.org>
> *Subject: *RE: [CCWG-ACCT] Board comments on the Mission statement
>
> There is a difference between ICANN having power to “enforce local
> laws†, as you put it, and ICANN’s ability to enforce its agreements,
> which have as a reference point, the conduct of “illegal activity†via
> an indirect use of a domain name.    Let’s be very clear – we are talking
> about the latter; the question of whether the enforcement of specific
> provisions on their face, would amount to the kind of regulation you and
> others would like to see prohibited.  There are a number of forms that
> enforcement could take which don’t make ICANN a proxy for local law
> enforcement.   For example, one manifestation of this concept is in RAA
> 3.18.1, which talks about the maintenance of an abuse contact for reports
> of illegal activity, which will trigger an obligation to investigate and
> respond appropriately.   RAA 3.7.7.9 is a logical companion to this
> provision, since it ensures that registrars are able, in accordance with
> their own terms of service, to address abuse complaints involving illegal
> activity, as between them and the registrant involved.   We know there is a
> broader discussion about what that should entail, but I am concerned that
> the language being proposed to prohibit any “direct or indirectâ€
> regulation will be used to argue that these contractual provisions are
> outside ICANN’s mission on their face.
>
> *From:* David Post [mailto:david.g.post at gmail.com <david.g.post at gmail.com>
> ]
> *Sent:* Monday, November 23, 2015 11:22 AM
> *To:* Silver, Bradley
> *Cc:* Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L;
> Accountability Cross Community
> *Subject:* RE: [CCWG-ACCT] Board comments on the Mission statement
>
>
> 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 RA RAA 3.7.7.9  - its not only
> that the registration of the Registered Name infringes or its “direct
> useâ€, but also that the manner in which is *indirectly* is used.  I
> can’t see how the “i€œindirect†use of the domain cannot also be
> attriibuted to infringing uses on the website to which the domain points.
>  If that’s not at least an “ind¬Å“indirect†use, I don’t know
> what is.   ‚  While I agree with your conclusion, I don’t agregree
> 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
> br>
> Bradley
>
> *From:* David Post [ <david.g.post at gmail.com>
> 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 ICANNâ€â„„¢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 Greg’s resposposponse below. sp;
> Milton’s position that an en existinting pr provision of the RAA
> is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is
> illuminating. sp; I had beenn 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 cu 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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> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book
> (Jefferson's Moose)  http://tinyurl.com/c327w2n
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0-25A0-25A0-25A0-25A0-25A0-25A0&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=ywg8uVPfTYGqvglA4unTV31GGxchC7v0aAGWrgZkGwI&e=>
> music http://tinyurl.com/davidpostmusic
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic-25A0&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=-Riw1v0au2L-2i3gFKAtEkYl56nN9CXxfpAuLQLoMGo&e=>publications
> etc.  http://www.davidpost.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B_&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=lr-1bErJrSUdw4bKPYQHlyQJnyZmCN5O3BLA8oN7OPY&e=>
> *******************************
>
> =================================================================
>
> *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 <212.484.6000> or via email at
> ITServices at timewarner.com <ITServices at timewarner.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 <212.484.6000> or via email at
> ITServices at timewarner.com <ITServices at timewarner.com> *
>
> =================================================================
>
>
> *******************************
> 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>
> music http://tinyurl.com/davidpostmusic
> <http://tinyurl.com/davidpostmusic%A0> publications etc.  http://www.davidpost.com
>
> *******************************
>
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