[CCWG-ACCT] Minority statements inclusion in report

[David Post]

At 02:41 PM 11/30/2015, Silver, Bradley wrote:
>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 – ii.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.

Here's what I can easily imagine:  Registrar XYZ 
is brought before the PICDRP, in a complaint 
brought by the Consumer Federation of Mexico, 
which asserts that XYZ is violating the mandatory 
PICs because it does not enforce the contract 
term prohibiting domain name holders from 
engaging in "activity contrary to applicable 
law"; specifically, it does not revoke domain 
names that are being used to sell fraudulently 
labeled goods.  The Registrar responds by saying: 
revoking our accreditation on those grounds is 
improper, because policing consumer fraud is 
outside of ICANN's Mission.  The complainant 
responds:  But the provisions of the Registry 
Agreement and the RAA (including the PICs, and 
Registy XYZ's obligation to include in their 
agreements with Registered Name Holders 
prohibiting them "from ... engaging in activity 
contrary to applicable law," and "providing . . . 
consequences for such activities including 
suspension of the domain name") been 
"grandfathered" into the Mission - i.e. deemed to 
be within the scope of ICANN's powers.

That seems to me to be a perfectly reasonable way 
to read the "grandfathering" language.  It's not 
a case of forcing ICANN to enforce the contracts 
in a manner that "doesn't comport with the 
Mission" - it's a way that ICANN can use the 
language of the existing agreements to expand the 
definition of and boundaries around the Mission.

I take it you would say: that's not what the 
Proposal means when it says that "the language of 
existing registry and registrar agreements should 
be grandfathered" - that the language is NOT meant to say that ICANN

I'm glad to hear that - but if it doesn't mean that, what does it mean?

You admit that the new language "acknowledg[es] 
that the RAA is within ICANN's mission," but you 
assert that that doesn't "immunize actions taken 
under the RAA from scrutiny."  But I think it 
certainly could be read to do just that.  In 
fact, that strikes me as the natural reading of 
the language.  If we're saying that the 
provisions of the RAA are within ICANN's mission, 
how can ICANN's actions to enforce those 
provisions ever be outside the Mission?  That 
doesn't make sense to me - and so it does indeed 
look, to me, like any actions ICANN takes 
pursuant to the provisions of the existing 
agreements are "immunized from scrutiny."

David


>
>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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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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