[CCWG-ACCT] Implementation flaw in Mission section

Fri Apr 8 19:32:50 UTC 2016

Very much so.  This Mission limitation was the very core of what the accountability effort was aimed at … this needs to be fixed

Paul

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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Silver, Bradley
Sent: Friday, April 8, 2016 1:31 PM
To: Malcolm Hutty <malcolm at linx.net>; Accountability Cross Community <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section

Malcolm, all:

I noticed this discrepancy too.  By singling out the RA and RAA I agree that the drafting goes beyond what the instructions intended.  While I also understand the lawyerly inclination to avoid “regulate”, I do not agree that your suggestion of “constrain” is a suitable alternative – that seems much weaker, and I think the lawyers got it right by using the word “impose terms and conditions”.   After all, that’s what regulators do, and it encapsulates the concept of constraint.  Rather:

*        ICANN shall not impose terms and conditions on services that use the Internet’s unique identifiers or the content that such services carry or provide.

I agree that this is a discrepancy which should be addressed. 

Bradley

-----Original Message-----
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 Malcolm Hutty
Sent: Friday, April 08, 2016 7:29 AM
To: Accountability Cross Community
Subject: [CCWG-ACCT] Implementation flaw in Mission section

I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.

The Report approved by the Chartering Organisations says:

"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)

The Draft Bylaws implements this as follows:

"*  ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))

Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.

Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be

imagined) then a full implementation of the CCWG Report would cover that too.

This is a clear and objective discrepancy.

Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.

This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.

The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.

Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.

I therefore propose we transmit the following request to the implementation team.

"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."

I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.

1. I understand that the lawyers wished to avoid use of the word regulation. Fine.

2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction.

3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.

Thus compare our Report:

"Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."

with the implementation team's draft bylaw

"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."

and my alternative suggestion for this Bylaw

"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".

That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".

Kind Regards,

Malcolm.

-- 

            Malcolm Hutty | tel: +44 20 7645 3523

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