[CCWG-ACCT] Minority statements inclusion in report

[Silver, Bradley]

I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesn’t comport with ICANN’s mission, particularly since we have language that says:   ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission – i.e. to ensure the stable and secure operation of the Internet's unique identifier systems.   Any and all actions taken under Section 3.18 or the RAA do not suddenly become immunized from scrutiny by acknowledging that the RAA is within ICANN’s mission.

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Mueller, Milton L
Sent: Monday, November 30, 2015 2:13 PM
To: Burr, Becky; David Post; Accountability Cross Community
Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report

Becky, David
We did discuss this but there are obviously still loose ends that need to be resolved.

You yourself say:

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.

MM: To me, this means that we have to find a wording that ensures that attempts by ICANN (or by litigants external to ICANN) to force ICANN  to interpret and enforce this 3.18 in a way that extends iits mission outside the boundaries can be stopped. Your current proposal makes it sound like a blanket endorsement of anything 3.18 might be used to do


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