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<div>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>
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Sent from my iPad</div>
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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>
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<div>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>
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I disagree. <br>
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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.
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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>
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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.
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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.
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So saying "ICANN shall not regulate services that use the Internet's unique identifiers" is, at best, muddying the waters.<br>
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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>
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"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."
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As long as there's no "contract exception" to that "absolute prohibition," this excludes the kind of content regulation we're concerned about.
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David<br>
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*******************************<br>
David G Post - Senior Fellow, Open Technology Institute/New America Foundation<br>
blog (Volokh Conspiracy) <a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=3QgUKRsdiv9T2POWG7982JhMEHI4n8Ke7FAPxyxs3uY&s=TCgrCtgGjcefLZQuJk6fUVbhVRP1_mmePs_tNvxyyIA&e=" eudora="autourl">
http://www.washingtonpost.com/people/david-post<br>
</a>book (Jefferson's Moose) <a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0-25A0-25A0-25A0-25A0-25A0-25A0&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=3QgUKRsdiv9T2POWG7982JhMEHI4n8Ke7FAPxyxs3uY&s=pPTr9Upq76Ppm5weNgRZdcnzBmyc2R-UaVrZqQ-MCec&e=" eudora="autourl">
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http://tinyurl.com/davidpostmusic </a>publications etc. <a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0_&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=3QgUKRsdiv9T2POWG7982JhMEHI4n8Ke7FAPxyxs3uY&s=I9YNslA_zhlaXxdzF1mPpuA8l2DyCZWhdP0lGLEtvPU&e=" eudora="autourl">
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******************************* </div>
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