[CCWG-ACCT] Resolution of Mission Language related to regulation and contract

Thu Nov 26 12:52:28 UTC 2015

> On 26 Nov 2015, at 06:58, Julia Katja Wolman <jukacz at erst.dk> wrote:
> 
> Dear colleagues,
>  
> The discussions on this issue, including the status of the Draft Proposal, have been somewhat challenging to follow. After the last CCWG call 24 November and the discussion on the list with regard to the Mission Statement, the “picket fence” and the termination of the PICs, especially, I would appreciate a clarification (legal?) of what it would mean for GAC’s public policy advice, for example à la the advice the GAC has given on “sensitive strings” and the Boards ability to implement and enforce public policy advice from the GAC.

Dear Julia,

There is no intention to limit ICANN's ability to decline to delegate domains containing sensitive strings in accordance with consensus policy (and so, in accordance with GAC advice that a particular string is sensitive). 

There is however, an intention that ICANN's Mission be limited; since there is no limit to what GAC public policy advice may contain, the possibility that ICANN will not be in a position to do things the GAC might ask for cannot be entirely excluded. But I would hope that the GAC would not ask ICANN to act outside its Mission.

Kind Regards,

Malcolm. 

> Best regards,
>  
> Julia
>  
>  
> Julia Katja Wolman
> 
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> Fra: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] På vegne af Burr, Becky
> Sendt: 24. november 2015 20:09
> Til: Silver, Bradley; Mueller, Milton L; Accountability Community; ACCT-Staff
> Emne: Re: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract
>  
> Bradley, I agree that 3.18 and 3.7.7 of the RAA are within the picket fence, and I think several other folks did as well.  Also, I think that we did agree to grandfather existing agreements – happy to add as part of the drafting note.  But it doesn’t make a lot of sense to me to start calling out particular sections of the agreements – does that mean other parts of the agreement that are not called out are automatically suspect?  Can we stick with the agreement reached last night?
> 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
>  
> From: <Silver>, Bradley <Bradley.Silver at timewarner.com>
> Date: Tuesday, November 24, 2015 at 1:50 PM
> To: Becky Burr <becky.burr at neustar.biz>, "Mueller, Milton L" <milton at gatech.edu>, Accountability Community <accountability-cross-community at icann.org>, ACCT-Staff <acct-staff at icann.org>
> Subject: RE: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract
>  
> Fine with that tweak as well.  I do want to make one suggested change to a drafting note, which is a point of clarity and is consistent with discussion on the call, as well as the back and forth on this list.  We very much need to ensure that these restrictions are not going to be used to poke holes in the presumptive validity of provisions in the RAA and RA and PICs, which are supported by the Specs.  So I propose:
>  
> ·         The issues identified in Specifications 1 and 11to the Registry Agreement and Specification 4 to the Registrar Accreditation Agreement (the so-called “Picket Fence”), as well the associated provisions of such agreements (including but not limited to Sections 3.18 and 3.7.7. of the RAA) are intended and understood to be within the scope of ICANN’s Mission 
>  
> Bradley
>  
>  
> From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Burr, Becky
> Sent: Tuesday, November 24, 2015 12:54 PM
> To: Mueller, Milton L; Accountability Community; ACCT-Staff
> Subject: Re: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract
>  
> I am fine with “in service of” - just used in furtherance of because that is what the David Post language came around with 
>  
> 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
>  
> From: <Mueller>, Milton L <milton at gatech.edu>
> Date: Tuesday, November 24, 2015 at 12:50 PM
> To: Becky Burr <becky.burr at neustar.biz>, Accountability Community <accountability-cross-community at icann.org>, ACCT-Staff <acct-staff at icann.org>
> Subject: RE: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract
>  
> Becky:
> The statement on ICANN’s ability to enforce contracts: “in service of” its mission was clearly the most popular and acceptable language; “in furtherance of” was the least popular and acceptable. Please revert to “in service of”
>  
> --MM
>  
> From:accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Burr, Becky
> Sent: Tuesday, November 24, 2015 12:15 PM
> To: Accountability Community <accountability-cross-community at icann.org>; ACCT-Staff <acct-staff at icann.org>
> Subject: [CCWG-ACCT] Resolution of Mission Language related to regulation and contract
>  
> Based on our call earlier today, I have modified the side-by-side comparison of the Mission Statement (comparing current Bylaws, 2nd Draft Proposal, and proposed 3rd Draft Proposal language) to reflect the 2nd Draft Proposal language plus the contract language as follows:
>  
> ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not impose regulations on services that use the Internet’s unique identifiers, or the content that such services carry or provide.  ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in furtherance of its Mission.
>  
> I have added the following Note per our discussion:
>  
> Note to drafters:  In crafting proposed Bylaws language to reflect this Mission Statement, the CCWG wishes the drafters to reflect the following considerations:
>  
> The prohibition on the regulation of “content” is not intended to prevent ICANN policies from taking into account the semantic meaning of domain names.
> The issues identified in Specification 1 to the Registry Agreement and Specification 4 to the Registrar Accreditation Agreement (the so-called “Picket Fence”) are intended and understood to be within the scope of ICANN’s Mission.  A side-by-side comparison of the formulation of the Picket Fence in the respective agreements is attached for reference.  
>  
> The PDF (as well as the PDF of the Picket Fence language) is attached.  
>  
> Please note also that I have added a general note to the effect that we expect the the Bylaws drafters may need to modify the Articles of Incorporation to align with the substantive changes to the Bylaws.
>  
> 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
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