[CCWG-ACCT] Implementation flaw in Mission section

[Greg Shatan]

I agree that the current draft language on this point appears too narrow.
However, Malcolm's proposed language is overbroad and goes beyond what was
agreed to.  I can understand the desire of the drafters to avoid using the
term "regulate," since ICANN is not a regulatory body and is thus incapable
of regulating as such.  The trick is capturing the conceptual essence of
the term without using it, and without substituting terms of substantially
broader or narrower effect.  The essence of regulation is prescribing or
imposing rules and/or requirements.  As such, I find Bradley's suggested
language to fall much closer to carrying out the intent of the CCWG Report,
and I support that language as well:

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 do not support the new note to the drafters that Malcolm has proposed as
a "request."  I don't think this objectively frames the issue, and I don't
think it is necessary to include a pontificatory paragraph with our
suggested language.  I suggest we scuttle this, rather than taking the time
to negotiate an acceptable version.   All we need to say is that we believe
the draft bylaws didn't adequately capture this particular point and we
propose the language above as a replacement.

Greg





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*Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP

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On Sat, Apr 9, 2016 at 3:47 PM, Marilyn Cade <marilynscade at hotmail.com>
wrote:

> I am not sure that this discussion even belongs in the CCWG ACCT.
>
> Can we perhaps move it to a later discussion?
> M
>
> > To: lists at christopherwilkinson.eu
> > From: malcolm at linx.net
> > Date: Fri, 8 Apr 2016 23:00:19 +0100
> > CC: accountability-cross-community at icann.org
> > Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
>
> >
> >
> >
> > On 08/04/2016 21:09, Christopher Wilkinson wrote:
> > > Dear Malcolm:
> > >
> > > This, as I think you know, goes too far and is politically
> unsustainable.
> > >
> > > Who, then is to regulate offending or illegal content or services in
> TLDs with global scope?
> > > Who, then is to enforce commitments reached prior to delegation of the
> domain?
> >
> > Dear Christopher,
> >
> > I think you know that this is properly a matter for governments, acting
> > within their own jurisdiction according to national sovereignty, and
> > that ICANN has no legitimacy to some supervening global authority in the
> > regulation of Internet content or the businesses that use the Internet.
> >
> > Kind Regards,
> >
> > Malcolm.
> > --
> > Malcolm Hutty | tel: +44 20 7645 3523
> > Head of Public Affairs | Read the LINX Public Affairs blog
> > London Internet Exchange | http://publicaffairs.linx.net/
> >
> > London Internet Exchange Ltd
> > Monument Place, 24 Monument Street, London EC3R 8AJ
> >
> > Company Registered in England No. 3137929
> > Trinity Court, Trinity Street, Peterborough PE1 1DA
> >
> >
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>
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