[CCWG-ACCT] Minority statements inclusion in report
David Post
david.g.post at gmail.com
Mon Nov 30 18:32:21 UTC 2015
The current Proposal (Annex 5 para 21) states in
a "Note": "For the avoidance of uncertainty, the
language of existing registry agreements and
registrar accreditation agreements should be grandfathered."
I don't believe any of the previous circulated
drafts contained this language, and in my opinion
it represents a very serious, and very
substantial, step backwards in this process.
To begin with, it is not clear what
"grandfathering" these agreements mean. One
possible implication is that everything within
the existing agreements is within ICANN's Mission
- or to put it differently, that the language of
the Mission Statement should be interpreted in a
manner such that all provisions of the existing
agreements are inside the "picket fence" of
ICANN's enumerated powers. The opposite
implication is possible, too - that there are
elements of the existing agreements that are NOT
within the Mission, but which are nonetheless
being "grandfathered" in so that they will not be
invalidated in the future (notwithstanding their
inconsistency with the Mission).
I believe that the former interpretation may be
the one that is intended - and I strongly
disagree with that, and strongly dissent. The
existing agreements contain a number of
provisions that are outside the scope of ICANN's
powers as we have defined it in the Mission
Statement. One most prominent example: In
Specification 1 of the new gTLD Registry
Agreement, Registry operators agree to a set of
mandatory "public interest commitments" - PICs -
and to adhere to "any remedies ICANN imposes
(which may include any reasonable remedy,
including for the avoidance of doubt, the
termination of the Registry Agreement pursuant to
Section 4.3(e) of the Agreement) following a
determination by any PICDRP panel and to be bound by any such determination."
Among the mandatory PICs, the Registry operator
must "include a provision in its
Registry-Registrar Agreement that requires
Registrars to include in their Registration
Agreements a provision prohibiting Registered
Name Holders from ... engaging in activity
contrary to applicable law, and providing
(consistent with applicable law and any related
procedures) consequences for such activities
including suspension of the domain name."
Prohibiting domain name holders from "engaging in
activity contrary to applicable law" is NOT
within ICANN's scope as defined in the Mission
Statement. It is neither a matter "for which
uniform or coordinated resolution is reasonably
necessary to facilitate the openness,
interoperability, resilience, security and/or
stability of the DNS," nor was it "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 should not have the power to revoke, or to
impose on others the requirement that they
revoke, anyone's continued use of a domain name
because they have "engaged in activity contrary
to applicable law." Such a provision would
appear to allow ICANN to do what is, elsewhere,
flatly prohibited: to impose regulations on
content. Activity contrary to applicable law
includes activity that (a) violates consumer
protection law, (b) infringes copyright, (c)
violates anti-fraud laws, (d) infringes
trademarks, (e) violates relevant banking or
securities laws, etc. etc. etc. At best, this
provision is flatly inconsistent with the
prohibition against regulating content. At
worst, it can be interpreted to provide an
"exception" to that prohibition - an exception
that will swallow up the prohibition in its entirety.
David
At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
>FWIW, Robin’s dissent is fully in line with
>the official comments submitted by the
>Noncommercial Stakeholders Group during the last public comment period.
>--MM
>
>From:
>accountability-cross-community-bounces at icann.org
>[mailto:accountability-cross-community-bounces at icann.org]
>On Behalf Of Robin Gross
>Sent: Sunday, November 29, 2015 6:41 PM
>To: Thomas Rickert
>Cc: accountability-cross-community at icann.org Community
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>Thanks, Thomas. See below.
>
>Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
>
>The CCWG-Accountability make a number of helpful
>recommendations to improve organizational
>accountability at ICANN, however one aspect of
>the plan is deeply flawed: changing the role of
>ICANN's Governmental Advisory Committee (GAC)
>from purely an “advisory†role to a
>“decision making†role over fundamental
>matters at ICANN, including its
>governance. Consequently the proposal
>marginalizes the role of Supporting
>Organizations (SO’s) compared to today’s
>ICANN governance structure. The degree of
>governmental empowerment over ICANN resulting
>from the proposal’s community mechanism is
>dangerous to the success of the proposal’s
>political acceptance as well as to its ultimate
>impact on a free and open Internet.
>
>The creation of a community mechanism to hold
>ICANN accountable on key issues made a critical
>error by departing from the existing power
>balance between SO’s and AC’s as determined
>by relative board appointments. Instead, the
>proposed community mechanism elevates the AC’s
>relative to the SO’s compared with today’s
>balance on ICANN's board of directors, which
>does not currently provide a decision making
>role to GAC, and which retains the primacy of
>the Supporting Organizations on key decisions,
>particularly those within the SO’s
>mandate. The devaluing of the Supporting
>Organizations in ICANN’s key decisions was a
>common theme in both previous public comment
>periods, however the recommendations not only
>failed to address this widespread concern, but
>went even further in devaluing SO’s in the
>community mechanism in the 3rd report. The
>community mechanism failed to take into account
>the appropriate roles and responsibilities of
>the various SO’s and AC’s, and the dangers
>inherent in changing those roles with a “one
>size fits all†approach to critical decision making.
>
>Additionally, I object to the proposed departure
>from ICANN’s typical 30-day public comment
>period on the 3rd report for
>CCWG-Accountability. The 3rd report’s public
>comment only allows for 9 days of public comment
>after the language translations are scheduled to
>be published, which is far too short of a public
>comment period for a report of this significance
>and with so many important changes since previous drafts.
>
>Robin Gross
>
>On Nov 29, 2015, at 1:29 PM, Thomas Rickert
><<mailto:thomas at rickert.net>thomas at rickert.net> wrote:
>
>Dear Robin,
>as discussed during the last CCWG call, minority
>statements will be included in the report as
>appendices if and when they are received.
>
>Best,
>Thomas
>
>---
><http://rickert.net/>rickert.net
>
>Am 29.11.2015 um 21:37 schrieb Robin Gross
><<mailto:robin at ipjustice.org>robin at ipjustice.org>:
>Dear Co-Chairs,
>I have still not received a response to this
>request. What is the process for submitting
>minority statements? Please advise.
>Thanks,
>Robin
>
>
>
>On Nov 11, 2015, at 5:35 PM, Robin Gross
><<mailto:robin at ipjustice.org>robin at ipjustice.org> wrote:
>
>Dear Co-Chairs,
>
>Could you please advise on the proposed schedule
>and process for ensuring that minority
>statements will be included in the report [of the executive summary]?
>
>Thank you,
>Robin
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>
>
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