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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<br>
</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."<br>
</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
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