[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Thu Jan 7 16:03:57 UTC 2016

There are some PICs that are incorporated into every new gTLD Agreement as
Spec 11 (pasted below).  Is this what you want a legal opinion on? And the
opinion would be what?  Whether these obligations are consistent with
ICANN¹s Mission?  Whether they are effectively grandfathered? (Of course,
the answer to that depends on the scope of the grandfathering.) I think
(since PICs are not the product of bottom up consensus policy
development), the question must be whether these obligations are ³in
service of ICANN¹s Mission."

SPECIFICATION 11

PUBLIC INTEREST COMMITMENTS

1. Registry Operator will use only ICANN accredited registrars that are
party to the Registrar Accreditation Agreement approved by the ICANN Board
of Directors on
27 June 2013 in registering domain names. A list of such registrars shall
be maintained by ICANN on ICANN¹s website.

2.    Registry Operator will operate the registry for the TLD in
compliance with all commitments, statements of intent and business plans
stated in the following sections of Registry Operator¹s application to
ICANN for the TLD, which commitments, statements of intent and business
plans are hereby incorporated by reference into this Agreement.  Registry
Operator¹s obligations pursuant to this paragraph shall be enforceable by
ICANN and through the Public Interest Commitment Dispute Resolution
Process established by ICANN (posted at
http://www.icann.org/en/resources/registries/picdrp),which may be revised
in immaterial respects by ICANN from time to time (the
³PICDRP²).  Registry Operator shall comply with the PICDRP. Registry
Operator agrees to implement and 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 [Registry Operator to insert
specific application sections here, if applicable]

3.Registry Operator agrees to perform the following specific public
interest commitments, which commitments shall be enforceable by ICANN and
through the PICDRP. Registry Operator shall comply with the PICDRP.
Registry Operator agrees to implement and 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.

a.     Registry Operator will include a provision in its
Registry-Registrar Agreement that requires Registrars to include in their
Registration Agreements a provision prohibiting Registered Name Holders
from distributing malware, abusively operating botnets, phishing, piracy,
trademark or copyright infringement, fraudulent or deceptive practices,
counterfeiting or otherwise 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.

b.     Registry Operator will periodically conduct a technical analysis to
assess whether domains in the TLD are being used to perpetrate security
threats, such as pharming, phishing, malware, and botnets. Registry
Operator will maintain statistical reports on the number of security
threats identified and the actions taken as a result of the periodic
security checks. Registry Operator will maintain these reports for the
term of the Agreement unless a shorter period is required by law or
approved by ICANN, and will provide them to ICANN upon request.

c.      Registry Operator will operate the TLD in a transparent manner
consistent with general principles of openness and non-discrimination by
establishing, publishing and adhering to clear registration policies.

d.     Registry Operator of a ³Generic String² TLD may not impose
eligibility criteria for registering names in the TLD that limit
registrations exclusively to a single person or entity and/or that
person¹s or entity¹s ³Affiliates² (as defined in Section 2.9(c) of the
Registry Agreement). ³Generic String² means a string consisting of a word
or term that denominates or describes a general class of goods, services,
groups, organizations or things, as opposed to distinguishing a specific
brand of
goods, services, groups, organizations or things from those of others.

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 / neustar.biz
<http://www.neustar.biz>

On 1/7/16, 10:47 AM, "Jorge.Cancio at bakom.admin.ch"
<Jorge.Cancio at bakom.admin.ch> wrote:

>Dear Mathieu
>
>that is consistent with my recollection. Was there any outreach to ICANN
>Legal? And, will there be a follow-up?
>
>@Milton: I just informed on the full GAC input on this issue, which I
>feel should be read in its entirety.
>
>@Kavouss: I guess Mathieu's email answers your question
>
>regards
>
>Jorge
>
>Von meinem iPhone gesendet
>
>Am 07.01.2016 um 16:37 schrieb Mathieu Weill
><mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>:
>
>
>Dear Jorge, All,
>
>
>
>This was indeed discussed during the December 15 meeting. The transcript
>is attached and I paste below the excerpt of the concluding remarks :
>
>
>Conclusions (excerpt from transcript)
>
>So yes you definitely raised a very valid point. And I as I said when
>replying to (Malcolm) this is of course no easy task. So yes indeed I
>don¹t think that we should be actually looking in a very detailed way.
>
>And that¹s why I suggest once again to continue the discussion off-line
>and of course reach out to ICANN legal and then from there may be
>continue shaping the question for our council to actually have something
>to work on.
>
>So if we are agree then I think that the first it would be to actually
>reach out to ICANN legal to see whether there are if any is some PICs
>that might be considered as typical and of course considering all these
>side issues or condiments as you could say that Chris has added to the
>equation.
>
>So at this point I would like to ask for any other comments or questions
>on this issue. And if there are no further comments or questions then I
>would turn back to my co-chair Mathieu for the next agenda item.
>
>
>
>I am not aware of any new developments or inputs from Icann Legal since
>then. Thanks to Alice for doing the research.
>
>
>
>Best
>
>Mathieu
>
>
>
>-----Message d'origine-----
>De : 
>accountability-cross-community-bounces at icann.org<mailto:accountability-cro
>ss-community-bounces at icann.org>
>[mailto:accountability-cross-community-bounces at icann.org] De la part de
>Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
>Envoyé : jeudi 7 janvier 2016 16:01
>À : Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>
>Cc : acct-staff at icann.org<mailto:acct-staff at icann.org>;
>accountability-cross-community at icann.org<mailto:accountability-cross-commu
>nity at icann.org>
>Objet : Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion
>
>
>
>Hi Becky
>
>
>
>that piece was more for the Co-Chairs to answer.
>
>
>
>Notwithstanding personal positions I recall a decision being taken, and
>as far as I remember it was to formulate the question in more specific
>terms after consulting with ICANN Legal.
>
>
>
>So I would very much appreciate any info on this from the Co-Chairs.
>
>
>
>regards
>
>
>
>Jorge
>
>
>
>Von meinem iPhone gesendet
>
>
>
>Am 07.01.2016 um 15:56 schrieb Burr, Becky
><Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz<mailto:Becky.Burr at ne
>ustar.biz%3cmailto:Becky.Burr at neustar.biz>>>:
>
>
>
>Jorge,
>
>
>
>I personally have been clear and consistent in my view that we were not
>asking the lawyers a question that can lead to a useful legal opinion.  I
>believe that Holly concurred in my view that we would spend a lot of
>money and learn that the answer depends on the facts in any specific
>situation, none of which can be predicted in advance.  I know that you
>and others continue to believe that there is some value in this, but as
>someone who has been on the receiving end of questions like that, I think
>would be a tremendous waste of ICANN resources.
>
>
>
>That said, I¹m not the decision-maker here, just offering an opinion.
>
>
>
>Becky
>
>
>
>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 /
>neustar.biz<http://www.neustar.biz>
>
>
>
>From: 
>"Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch><mailto:Jo
>rge.Cancio at bakom.admin.ch>"
><Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch><mailto:Jo
>rge.Cancio at bakom.admin.ch>>
>
>Date: Thursday, January 7, 2016 at 3:47 AM
>
>To: Becky Burr 
><becky.burr at neustar.biz<mailto:becky.burr at neustar.biz><mailto:becky.burr at n
>eustar.biz>>, Accountability Community
><accountability-cross-community at icann.org<mailto:accountability-cross-comm
>unity at icann.org><mailto:accountability-cross-community at icann.org>>
>
>Cc: 
>"acct-staff at icann.org<mailto:acct-staff at icann.org><mailto:acct-staff at icann
>.org>" 
><acct-staff at icann.org<mailto:acct-staff at icann.org><mailto:acct-staff at icann
>.org>>
>
>Subject: AW: Deck for Meeting #75 Mission Statement discussion
>
>
>
>Dear Becky, dear Co-Chairs and dear all,
>
>
>
>For info: this is the full text of the GAC consensus input of December
>21st on recommendation 5:
>
>
>
>Changing aspects of ICANN¹s Mission. Commitments and Core Values
>(RECOMMENDATION 5)
>
>
>
>The GAC notes that legal advice is being sought by the CCWG to clarify
>the practical effect of this Recommendation, and believes this is
>appropriate.
>
>
>
>The GAC expects that any changes will not reduce the current role of the
>GAC in providing advice on the activities of ICANN as they relate to
>concerns of governments, particularly matters where there may be an
>interaction between ICANN¹s policies and various laws and international
>agreements or where they may affect public policy issues (as provided in
>the current ByLaws). This includes issues such as consumer protection,
>the respect for fundamental rights and freedoms and law enforcement.
>
>
>
>The GAC further expects that changes to ICANN¹s mission and core values
>should not constrain the Board from accepting and implementing GAC
>advice. In addition, ICANN¹s ability to enforce contractual obligations
>and act upon the public policy advice of the GAC should not be
>inadvertently impacted.
>
>
>
>==
>
>
>
>And: what happened with the question to the lawyers which we decided to
>formulate to the lawyers on this very issue last December? Could you
>please inform on the status of this question?
>
>
>
>Regards
>
>
>
>Jorge
>
>
>
>Von: 
>accountability-cross-community-bounces at icann.org<mailto:accountability-cro
>ss-community-bounces at icann.org><mailto:accountability-cross-community-boun
>ces at icann.org> [mailto:accountability-cross-community-bounces at icann.org]
>Im Auftrag von Burr, Becky
>
>Gesendet: Mittwoch, 6. Januar 2016 20:03
>
>An: Accountability Community
><accountability-cross-community at icann.org<mailto:accountability-cross-comm
>unity at icann.org><mailto:accountability-cross-community at icann.org>>
>
>Cc: ACCT-Staff 
><acct-staff at icann.org<mailto:acct-staff at icann.org><mailto:acct-staff at icann
>.org>>
>
>Betreff: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion
>
>Wichtigkeit: Hoch
>
>
>
>
>
>Is attached in DRAFT FORM.  Anything missing or wrong should be
>attributed to incompetence rather than conspiracy.  I am still working on
>questions in 1 section.  I will also shortly resend a variety of
>previously circulated resource documents.
>
>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
>/neustar.biz<http://www.neustar.biz>
>
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><Transcript_CCWG ACCT_15 December (1).doc>

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