[CCWG-ACCT] Minority statements inclusion in report

Burr, Becky Becky.Burr at neustar.biz
Mon Nov 30 18:55:53 UTC 2015 

First, we discussed this on several calls (3 or 4), including the last.

Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward.  Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms.  As I said on this very topic recently:
Beyond that, the language of 3.18 in question imposes obligations on registrars – maintain an abuse point 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
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From: David Post <david.g.post at gmail.com<mailto:david.g.post at gmail.com>>
Date: Monday, November 30, 2015 at 1:32 PM
To: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" <NCSG-DISCUSS at LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report


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> [ 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<mailto: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 <thomas at rickert.net<mailto: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

---
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Am 29.11.2015 um 21:37 schrieb Robin Gross <robin at ipjustice.org<mailto: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 <robin at ipjustice.org<mailto: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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