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At 02:10 PM 11/11/2015, Paul Rosenzweig wrote:<br>
<blockquote type=cite class=cite cite="">As I said earlier, there are two
reasons not to do what Becky proposed, even though it is quite an elegant
effort to say more by saying less. The first is the unfortunate
drafting history that will give credence to arguments that the deletion
has meaning. </blockquote><br><br>
But that can be relatively easily dealt with by means of an accompanying
statement, no? "The deletion does not reflect a consensus that
ICANN is authorized to regulate content. The consensus is in
precisely the opposite direction, but we believe that this is already
achieved by the language in the mission statement ..." or
something like that?<br><br>
<blockquote type=cite class=cite cite="">The second is that affirmative
restrictions are much more readily enforceable than are limitations on
authorization – compare in the US our muddled Commerce Clause
jurisprudence with most (though admittedly not all) of our understanding
of the Bill of Rights. I still think it would be a very unfortunate
mistake with long-term collateral adverse unintended
consequences.</blockquote><br>
I can see that - as I said, I'd support including something like:
<br><br>
"Without limiting the foregoing absolute prohibition, ICANN shall
not regulate the content carried or provided by services that use the
Internet's unique identifiers." <br><br>
Doesn't that do the job? If you think it doesn't, what is it about
the missing language (referring to the impermissibility of regulating
"services that use the Internet's unique system of
identifiers") that you think needs to be in there?<br><br>
David <br><br>
<br>
<blockquote type=cite class=cite cite=""> <br>
<b>From:</b> David Post
[<a href="mailto:david.g.post@gmail.com" eudora="autourl">
mailto:david.g.post@gmail.com</a>] <br>
<b>Sent:</b> Wednesday, November 11, 2015 1:17 PM<br>
<b>To:</b> Burr, Becky <Becky.Burr@neustar.biz><br>
<b>Cc:</b> ACCT-Staff (acct-staff@icann.org)
<acct-staff@icann.org>; Accountability Community
<accountability-cross-community@icann.org><br>
<b>Subject:</b> Re: [CCWG-ACCT] Attempt to summarize discussion regarding
Mission and Contract<br>
<br>
At 11:58 AM 11/11/2015, Burr, Becky wrote:<br><br>
<dl>
<dd>So you would drop both the language about regulation and the language
about contracts? If so, that's what I proposed several days ago
(which was not well received.). Or am I misunderstanding?<br><br>
</dl><br>
Yes, that is my position; I would support dropping both. <br><br>
The contract language should be dropped because the language proposed
would do substantial damage to much of the entire accountability project,
giving ICANN an easy way to work around the limitations in the Mission
Statement.<br><br>
The "regulation" language does less harm, so in my opinion
dropping it is less critical. But I don't think it adds anything
much beyond additional confusion to the mission statement; if the mission
statement doesn't already prohibit this kind of "regulation,"
we should amend it so that it does. I think it already does the
job, but I wouldn't object strongly if the final proposal contained
something like a statement that <br>
"Without limiting the foregoing absolute prohibition, ICANN
shall not regulate the content carried or provided by services that use
the Internet's unique identifiers."<br><br>
David<br><br>
<br><br>
<dl>
<dd>On Nov 11, 2015, at 8:39 AM, David Post
<<a href="mailto:david.g.post@gmail.com">david.g.post@gmail.com</a>
> wrote:<br>
<br><br>
<dl>
<dd>At 09:10 PM 11/10/2015, Burr, Becky wrote:<br><br>
<dl>
<dd>SNIP So I will restate the specific questions for the
CCWG:<br>
<dd>1. Do you agree or disagree with the following statement: "To
the extent
<dd>that registry operators voluntarily assume obligations with respect
to
<dd>registry operations as part of the application process, ICANN should
have
<dd>the authority to enforce those commitments.²<br>
<br><br>
</dl>
<dd>I disagree. <br>
<dd>This is the camel sneaking its nose under the tent. ICANN is,
in effect, a monopoly provider of registration (and other) services to
the Internet community. Having a single provider of these services
is, of course, desirable for many reasons. But like all
monopolists, it can get consumers of its services to "voluntarily
assume" any number of obligations - with respect to both price and
non-price terms in their contracts - that are not in the best interest of
the community as a whole, and which consumers would never agree to in a
competitive market where there were alternative sources of supply to
which they could turn. This is precisely what the accountability
mechanisms should be guarding against. <br>
<dd>The whole point of this accountability exercise, and of the careful
delineation of ICANN's Mission, in my opinion, is to ensure that ICANN
cannot act outside of that mission - including acting by means of
including (and enforcing) contractual terms that are offered to, and
"voluntarily" assumed by, registries and registrars (who have
no alternatives to accepting ICANN's terms).<br>
<br><br>
<dl>
<dd>2. Do you agree or disagree with the following statement: "ICANN
shall not
<dd>regulate services that use the Internet's unique identifiers, or the
<dd>content that such services carry or provide.² - Wherever you
land, please
<dd>explain what you mean by ³regulate² and ³services."<br>
<br><br>
</dl>
<dd>I agree with the thrust of this statement, though I do not believe
that it is well-crafted to the job it is trying to do. The
statement, in context, is intended just to clarify the "absolute
prohibition" against acting in a manner that is not "reasonably
appropriate to achieve [ICANN's] mission," without limiting that
prohibition in any way. But it is not doing that job well. <br>
<dd>First, I don't know what definitions of "regulate" and
"services" could make the statement that "ICANN shall not
regulate services that use the Internet's unique identifiers" a
correct one. Registries and registrars offer "services"
that "use the Internet's unique identifiers" - if
"services" means what it ordinarily means ("the
performance of any duties or work for another; helpful or professional
activity" - Webster's). And ICANN clearly
"regulates" registries and registrars - if
"regulates" means what it ordinarily does, i.e. proposing,
imposing, and enforcing binding rules of conduct on those entities.
<br>
<dd>So saying "ICANN shall not regulate services that use the
Internet's unique identifiers" is, at best, muddying the
waters.<br>
<dd>As for regulating "the content that such services carry or
provide," if this is not already taken care of in the Mission
Statement, it should be. I believe that it is. ICANN can only
<br>
<dd>"coordinate the development and implementation of policies for
which uniform or coordinated resolution is reasonably necessary to
facilitate the openness, interoperability, resilience, security and/or
stability [and] that are developed through a bottom-up, consensus-based
multistakeholder process and designed to ensure the stable and secure
operation of the Internet’s unique names system." <br><br>
<dd>As long as there's no "contract exception" to that
"absolute prohibition," this excludes the kind of content
regulation we're concerned about. <br>
<dd>David<br>
<br>
<br>
<dd>*******************************
<dd>David G Post - Senior Fellow, Open Technology Institute/New America
Foundation
<dd>blog (Volokh Conspiracy)
<a href="http://www.washingtonpost.com/people/david-post">
http://www.washingtonpost.com/people/david-post</a>
<dd>book (Jefferson's Moose)
<a href="http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0">
http://tinyurl.com/c327w2n </a>
<dd>music
<a href="http://tinyurl.com/davidpostmusic">
http://tinyurl.com/davidpostmusic</a> publications etc.
<a href="http://www.davidpost.com /">
http://www.davidpost.com </a>
<dd>******************************* <br><br>
</dl>
</dl><br>
*******************************<br>
David G Post - Senior Fellow, Open Technology Institute/New America
Foundation<br>
blog (Volokh Conspiracy)
<a href="http://www.washingtonpost.com/people/david-post">
http://www.washingtonpost.com/people/david-post<br>
</a>book (Jefferson's Moose)
<a href="http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0">
http://tinyurl.com/c327w2n </a><br>
music
<a href="http://tinyurl.com/davidpostmusic">
http://tinyurl.com/davidpostmusic</a> publications etc.
<a href="http://www.davidpost.com /">
http://www.davidpost.com
</a><br>
******************************* </blockquote><br>
*******************************<br>
David G Post - Senior Fellow, Open Technology Institute/New America
Foundation<br>
blog (Volokh Conspiracy)
<a href="http://www.washingtonpost.com/people/david-post" eudora="autourl">
http://www.washingtonpost.com/people/david-post<br>
</a>book (Jefferson's Moose)
<a href="http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0" eudora="autourl">
http://tinyurl.com/c327w2n </a> <br>
music
<a href="http://tinyurl.com/davidpostmusic" eudora="autourl">
http://tinyurl.com/davidpostmusic</a> publications etc.
<a href="http://www.davidpost.com /" eudora="autourl">
http://www.davidpost.com </a>
<br>
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