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I generally accept this, but see embedded comments.<br><br>
At 10/11/2015 05:58 PM, Burr, Becky wrote:<br><br>
<br>
<blockquote type=cite class=cite cite="">Please read all the way through
to the bottom for a question and proposal.<br><br>
Based on our discussion this morning, I believe that the following
statements reflect the consensus of the CCWG (lack of “full consensus” on
1 point noted in text):<br>
<br><br>
· ICANN’s Mission with respect to names is
described in the Mission Statement as follows: With respect to
NAMES, ICANN’s Mission is to coordinate the allocation and assignment of
names in the root zone of the Domain Name System ("DNS"). In
this role, ICANN’s Mission is to coordinate the development and
implementation of policies: (I)For which uniform or coordinated
resolution is reasonably necessary to facilitate the openness,
interoperability, resilience, security and/or stability of the DNS; and
(ii) That are developed through a bottom-up, consensus-based multi-
stakeholder process and designed to ensure the stable and secure
operation of the Internet’s unique names systems.<br><br>
· ICANN’s Mission is limited and
enumerated.<br><br>
· ICANN’s should act in accordance with, and only
as reasonably appropriate to achieve its Mission.<br><br>
· Coordinating development, implementation, and
enforcement of Consensus Policy, as defined by Specification 1 of the New
gTLD Registry Agreement and Specification 4 of the 2013 Registrar
Accreditation Agreement, is within ICANN’s Mission.<br><br>
· ICANN should have the authority to enforce
agreements with contracted parties, subject to established means of
community input on those agreements and reasonable checks and balances on
its ability to impose obligations exceeding ICANN’s Mission on such
parties.<br><br>
o To the extent that registry operators voluntarily assume
obligations with respect to registry operations as part of the
application process, ICANN should have the authority to enforce those
commitments. <br><br>
<i>NOTE: There is not “full consensus” on this
position</i>.<br><br>
o In general, consistent with ordinary contract concepts,
registries and registrars should be presumed to have agreed to the terms
and conditions of any contract with ICANN. <br>
<dl><br>
<dd>That said</i>, there should be some mechanism whereby contracted
parties can enter into such agreements without waiving their rights to
challenge specified provisions of such an agreement on the grounds that
they exceed the scope of ICANN’s Mission. Any such mechanism would
have to provide adequate notice, needs to be developed,
etc.</blockquote>
</dl><br>
I support this, but given that we are adding that policy should be
developed through a bottom up process, contracted parties should NOT be
able to dispute parts of contracts that are not developed through a
bottom-up process if those parts are not eligible for (as per Spec 1/4)
for bottom-up Consensus Policy.<br><br>
<br><br>
<blockquote type=cite class=cite cite="">We do not appear to have
consensus on the following concept</b>: Without in any way limiting
the foregoing absolute prohibition, ICANN shall not regulate services
that use the Internet's unique identifiers, or the content that such
services carry or provide.<br>
</i></blockquote><br>
If it comforts anyone, I am happy to add a restriction that such
content-related enforcement must not rely on ICANN to make judgement
calls on such content and must rely on external authoritative agencies or
mechanisms to make such judgements.<br><br>
<br>
<blockquote type=cite class=cite cite="">Question</b>: Does the
following formulation t</i>hread the needle between those who say that
ICANN should not use its contracting authority to regulate registrant
behavior and those who point out that the Registrar Accreditation
Agreement, for example, requires registrants to provide accurate and
up-to-date WHOIS data: <font color="#0000FF">ICANN should not use
its authority to enter into contracts with registries and registrars to
impose obligations and limitations on registrants with respect to issues
that are not properly the subject of Consensus Policy.<br>
</i></font><br>
<dl>
<dd>PROPOSAL</i></b>: If so, I propose that the CCWG provide
the text above as guidance for the final bylaws drafters in interpreting
the admonition that "ICANN shall act strictly in accordance with,
and only as reasonably appropriate to achieve its Mission.” I
believe this would (1) eliminate concerns and ambiguity regarding use of
the word “regulation,”; (2) reflect consensus on the principles; and (3)
address the late change/legislative history/statutory construction
concern raised by Paul R. and others.<br>
<dd> <br><br>
</dl>J. Beckwith Burr <br>
Neustar, Inc. </b>/ </b>Deputy General Counsel & Chief Privacy
Officer<br>
1775 Pennsylvania Avenue NW, Washington D.C. 20006<br>
Office: </b>+1.202.533.2932 Mobile: </b>+1.202.352.6367 /</b>
<a href="http://www.neustar.biz">neustar.biz</a><br>
</b>_______________________________________________<br>
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