[CCWG-ACCT] Minority statements inclusion in report

Mon Nov 30 22:30:23 UTC 2015

At 01:55 PM 11/30/2015, Burr, Becky wrote:
>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 
>>ann abuse point of contact, investigate 
>>allegations regarding illegal activities, take 
>>appropriate action, so I donâ€™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 Internetâ€™s unique identifiers 
>>(e.g., particularly involving malicious DNS 
>>exploits, etc.), so the provision seems to me 
>>to be appropriate in furtherance of ICANNâ€™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 â€œ 
>>appropriate responseâ€ 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.

But that's the problem, right there.  You say 
that if ICANN "exceeds the scope of its 
authority" if it "begins to say that registrars 
who do not suspend registrations in response to 
allegations that an underlying site is defamatory are in breach."

But why is it so obvious that this exceeds the 
scope of its authority?  You will say:  because 
we have said elsewhere that ICANN shall not 
regulate content, and this regulates content.

But it is not far-fetched for someone to suggest 
that the "grandfathering" language modifies that, 
and was included precisely to make it clear that 
enforcing the provisions of existing agreements 
is WITHIN ICANN's authority.  Under existing 
agreements, Registrars are already obligated to 
provide "consequences ... including suspension of 
domain name registrations" for "activities 
contrary to applicable law."  Defamation is an 
"activity contrary to applicable 
law."  Suspending registrations in response to 
allegations that an underlying site is defamatory 
is thus within the scope of (existing) 
agreements.  If those agreements are 
grandfathered in, it looks to me like we're 
saying that when ICANN acts as it is authorized 
to do within the existing agreements, it is 
acting within the scope of its authority.

David

>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 
>/ <http://www.neustar.biz>neustar.biz
>
>From: David Post <<mailto:david.g.post at gmail.com>david.g.post at gmail.com>
>Date: Monday, November 30, 2015 at 1:32 PM
>To: Accountability Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" 
><<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>NCSG-DISCUSS at LISTSERV.SYR.EDU>, 
>Thomas Rickert 
><<mailto:thomas at rickert.net>thomas at rickert.net>, 
>Accountability Community 
><<mailto:accountability-cross-community at icann.org>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 Internetâ€™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, RobinÃ¢€™s dissent nt is fully in line 
>>with the official comments submitted by the 
>>Noncommercial Stakeholders Group during the last public comment period.
>>--MM
>>
>>From: 
>><mailto:accountability-cross-community-bounces at icann.org>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: 
>><mailto:accountability-cross-community at icann.org>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 
>>Ã¢€œadvisoryÃ¢€ role to a Ã¢€ Ã¢â‚¬œdecision 
>>makingÃ¢€ role over fundamental matterers at 
>>ICANN, including its governance.  Consequently 
>>the proposal marginalizes the role of 
>>Supporting Organizations (SOÃ¢€™s) compared to 
>>todayÃ¢€™s ICANN goveNN governance 
>>structure.  The degree of governmental 
>>empowerment over ICANN resulting from the 
>>proposalÃ¢€™s cs community mechanism is 
>>dangerous to the success of the proposalÃ¢€™s 
>>political acceptance as well as to its 
>>ultultimate 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 SOÃ¢€™s and nd ACÃ¢€™s as 
>>determined by relative board 
>>appointments.ts.  Instead, the proposed 
>>community mechanism elevates the ACÃ¢€™s 
>>relative to the SOÃ¢€™s compared wpared with 
>>todayÃ¢€™s balance on ICANN's board of 
>>directors,rs, 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 SOÃ¢€™s mandate.   The 
>>devaluing of tf the Supporting Organizations in 
>>ICANNÃ¢€™s key decisiosions 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 SOÃ¢€™s in the community 
>>mechanism in the 3r 3rd report.  The community 
>>mechanism failed to take into account the 
>>appropriate roles and responsibilities of the 
>>various SOÃ¢€™s and ACÃ¢€™s, and the dangers 
>>angers inherent in changing those roles with a 
>>Ã¢€œone sizeze fits allÃ¢€ approach to critical decision makingg.
>>
>>Additionally, I object to the proposed 
>>departure from ICANNÃ¢€™s typical 30-day 
>>publublic comment period on the 3rd report for 
>>CCWG-Accountability.  The 3rd reportÃ¢€™s 
>>public comment only allallows 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
>>
>>---
>><https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=9_5YAupJwVm6qd9FYkcvB50XsN6XMpB3eFmtm-kYBKI&e=>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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>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>book (Jefferson's Moose)  http://tinyurl.com/c327w2n
>music http://tinyurl.com/davidpostmusic 
>publications etc.  http://www.davidpost.com
>*******************************

*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music 
http://tinyurl.com/davidpostmusic  publications 
etc.  http://www.davidpost.com
*******************************  
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