<html>
<body>
At 11:58 AM 11/11/2015, Burr, Becky wrote:<br>
<blockquote type=cite class=cite cite="">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?</blockquote><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>
<blockquote type=cite class=cite cite="">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>
<blockquote type=cite class=cite cite="">At 09:10 PM 11/10/2015, Burr,
Becky wrote:<br>
<blockquote type=cite class=cite cite="">SNIP So I will
restate the specific questions for the CCWG:<br><br>
1. Do you agree or disagree with the following statement: "To the
extent<br>
that registry operators voluntarily assume obligations with respect
to<br>
registry operations as part of the application process, ICANN should
have<br>
the authority to enforce those commitments.²</blockquote><br>
I disagree. <br><br>
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 <i>precisely </i>what the accountability mechanisms
should be guarding against. <br><br>
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>
<blockquote type=cite class=cite cite="">2. Do you agree or disagree with
the following statement: "ICANN shall not<br>
regulate services that use the Internet's unique identifiers, or the<br>
content that such services carry or provide.² - Wherever you land,
please<br>
explain what you mean by ³regulate² and
³services."</blockquote><br>
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><br>
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><br>
So saying "ICANN shall not regulate services that use the Internet's
unique identifiers" is, at best, muddying the waters.<br><br>
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><br>
"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>
As long as there's no "contract exception" to that
"absolute prohibition," this excludes the kind of content
regulation we're concerned about. <br><br>
David<br><br>
<br><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</a><br>
book (Jefferson's Moose)
<a href="http://tinyurl.com/c327w2n%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>
******************************* </blockquote></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>
******************************* </body>
</html>