[CCWG-ACCT] Implementation flaw in Mission section

Mon Apr 11 21:45:28 UTC 2016

For whats its worth it would work for me also.

-James

On 11/04/2016, 10:22 p.m., "accountability-cross-community-bounces at icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces at icann.org on behalf of holly.gregory at sidley.com> wrote:

>Good question Milton,  I would like to know if that word works.
>
>HOLLY J. GREGORY
>Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
>
>SIDLEY AUSTIN LLP
>+1 212 839 5853
>holly.gregory at sidley.com
>-----Original Message-----
>From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Mueller, Milton L
>Sent: Monday, April 11, 2016 3:59 PM
>To: Malcolm Hutty; Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
>
>What's wrong with the word "control" instead of "regulate"?
>
>> -----Original Message-----
>> From: accountability-cross-community-bounces at icann.org
>> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
>> Malcolm Hutty
>> Sent: Monday, April 11, 2016 3:13 PM
>> To: Silver, Bradley <Bradley.Silver at timewarner.com>; Accountability Cross
>> Community <accountability-cross-community at icann.org>
>> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
>>
>>
>>
>> On 11/04/2016 19:42, Silver, Bradley wrote:
>> > Thanks Malcom (and Becky).   It is important that the implementing
>> > language be clear and unequivocal.   The concept we agreed on was
>> > "regulation", which is a specific type of activity.   If there are
>> > reasons why we cannot use this term in the context of ICANN's
>> > activities, we the lawyers should therefore seek to approximate this
>> > type of activity that regulators do.  Our discussions in the CCWG were
>> > recent enough that we can all remember how carefully these words were
>> > chosen, and how much they were debated, and if we had wanted to
>> impose
>> > some sort of limitation on the terms of the RA or RAA that was not
>> > already encompassed by the description of ICANN's mission, we
>> > could have said so - and we did not.   The concept was one of ICANN
>> > attempting to exert a power to impose rules/conditions on third party
>> > services and content, and I think it's important to stay faithful to
>> > that, without reopening the debate we had in the CCWG.
>>
>> Bradley, I think we're in complete agreement as to what we should be trying
>> to do, and almost completely agreed on how to express it as well.
>>
>> You mention "what regulators do". Certainly in my experience they don't
>> only rely on imposing terms and conditions, but use a variety of mechanisms
>> to achieve their goals, from formal law to seeking to cajole corporate
>> representatives and leadership. So I think that reasoning also supports a
>> broader definition.
>>
>> But perhaps we should stick more closely to the verb "regulate" than the
>> actor "regulator", to match the language of the report.
>>
>> When I type "define: regulate" into Google, the definition given reads
>>
>> (1) control or maintain the rate or speed of (a machine or process) so that it
>> operates properly.
>> (2) control or supervise (something, especially a company or business
>> activity) by means of rules and regulations.
>> (3) set (a clock or other apparatus) according to an external standard.
>>
>> The second seems to me entirely consistent with my understanding of the
>> Report's provision. Other dictionaries will no doubt offer slightly different
>> definition, and I assume the implementation team will look at a few.
>>
>> Anyway, this isn't easy, and we're fumbling for the right works, in the dark
>> together, hand-in-hand.
>>
>> All the best,
>>
>> Malcolm.
>>
>> > -----Original Message----- From:
>> > accountability-cross-community-bounces at icann.org
>> > [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
>> > Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To:
>> > Accountability Cross Community Subject: Re: [CCWG-ACCT]
>> Implementation
>> > flaw in Mission section
>> >
>> > I see that Becky has replied to my message in the paper distributed
>> > for this evening's meeting, but the reply was not otherwise copied to
>> > the list. For ease of reference (and reply), here it is.
>> >
>> > Becky Burr wrote:
>> >> Malcolm is correct that proposed text is different from the Report.
>> >> In the course of drafting, the CCWG attorneys pointed out that the
>> >> construct (no regulation of services etc.) could create unintended
>> >> consequences related to the application of antitrust law. This was
>> >> viewed as particularly problematic under the current circumstances,
>> >> where the supervision of the US government (which at least arguably
>> >> provides some protection for ICANN) is being withdrawn.
>> >>
>> >> We attempted to eliminate this problem and discussed several
>> >> approaches to doing so. This approach seemed to get at the concern
>> >> that was animating the CCWG in its discussions on this point, use of
>> >> the Registry Agreement and Registrar Accreditation Agreement to
>> >> regulate registrant conduct.
>> >>
>> >> Malcolm is correct, of course, that ICANN might attempt to use some
>> >> other vehicle to regulate content. But it is critical to keep in mind
>> >> that the prohibition on regulation is, by nature, a “belt and
>> >> suspenders” approach. Keep in mind that ICANN is prohibited from
>> >> doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not
>> >> act outside its Mission.” So no matter what other mechanism ICANN
>> >> might find to attempt to regulate content, the Bylaws simply prohibit
>> >> that.
>> >>
>> >> We are open to other constructs, so long as they don’t raise the same
>> >> antitrust concerns identified by Holly and Rosemary in our
>> >> discussions. At a minimum, that requires us to avoid the term
>> >> “regulation” and to be as concrete as possible.
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> > On 08/04/2016 12:28, Malcolm Hutty wrote:
>> >>
>> >> 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
>>    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
>>
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>>        Trinity Court, Trinity Street, Peterborough PE1 1DA
>>
>>
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