<p dir="ltr">Sent from my Asus Zenfone2<br>
Kindly excuse brevity and typos.<br>
On 20 Nov 2015 19:07, "Greg Shatan" <<a href="mailto:gregshatanipc@gmail.com">gregshatanipc@gmail.com</a>> wrote:<br>
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> The point is that the focus is on services such as "web services" running on a web server, or "mail services" running on a mail server. The focus is not on service providers, whether registries, registrars, internet service providers, nail salons or auto mechanics.<br>
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SO: FWIW (even though I have hinted this before) service providers are actually referred to as such because they provide services and those services could include web services, mail services et all. So when you say focus is not on service providers but on the providers you may want to recheck that.</p>
<p dir="ltr">Overall, I hope we will soon realise that trying to define services in restrictive context is a tall order and could have unintended implications if such description gets included in a mission statement.</p>
<p dir="ltr">Regards<br></p>
<p dir="ltr"> The parenthetical language clarifies that and tries to be as technology-agnostic as possible (I note that it is consistent with the definition of web services in my other email, which was drafted in 2004), but improvements are always welcome. The examples provided in my other email may provide some inspiration for such improvements.<br>
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> As such, the novel "revised" "services clause" provided by David Post is going off in an entirely different direction, and is really of no help in explaining to the Board (or anyone else) what the above clause means. Indeed, it no longer deals just with "services" by any definition -- it refers to "persons or entities," which goes even beyond a misdirected definition of "services." Also, the concept of "obligations" goes far beyond the concept of "regulations" in terms of stating the limitations on ICANN. Finally,the idea that this focuses on "persons or entities whose only connection to the DNS is that they use a domain name for Internet communication" is nowhere found in the clause above or in any of the discussions I've seen or participated in regarding this provision. So, rather than being a "revision" of the current services clause, this alternative is a completely new construction.<br>
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> The "idea" that David postulates and then rapidly assumes that "pretty much everyone agrees with" also goes far beyond and in different directions from the above clause, which reflects hours of careful discussion and compromise among a number of participants from different stakeholder groups. I am confident that the statement that "pretty much everyone agrees with" David's idea is false. I, for one, certainly don't agree with it as a statement that bears any relationship to the above clause. As such, I think it has no value in the work of this group other than to yank it off course, which I think would be highly counterproductive at this point in the proceedings.<br>
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> As to the Board's concerns:<br>
> "Some existing registry agreements may be out of compliance with ICANN's responsibilities if this change is adopted": I, for one, had that concern about the language that appears in the November 15 formal update. I believe that the current language actually resolves, rather than causes this problem. If the Board disagrees, I think a far more specific discussion is needed -- one that clearly identifies the language (or change/deletion of language) that causes the Board's concern, and which provisions in which existing registry agreements might be out of compliance. Dealing in abstract concerns is not particularly helpful. As far as I know, it was not the intention of any of the drafters to nullify or expose to challenge any provisions of any registry or registrar agreements. Of course, this should be clarified, and if the Board has identified a "land mine" in the language that has been planted in anticipation of a later attempt to challenge provisions of existing agreements, that land mind should be extracted and de-fused.<br>
> The use of the word regulate (which occurs on both the November 15 and November 17 language, so I assume the Board's concern covers both versions): I have some sympathy for this, although there are instances of "regulation" for rules imposed by a private entity to carry out policy rather than rules imposed by a government to carry out laws. So far, though, finding a word that does not substantially change the intended meaning has been a challenge (such as when "obligation" was substituted for "regulation" as discussed above). I'm at a loss though to understand what risk this use would cause to ICANN.<br>
> The definition of services: This is discussed above and and in my prior email, so I won't reiterate here. While it could be improved. but it clearly points in the right direction and away from the wrong one -- and that is critical.<br>
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> Greg<br>
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> On Thu, Nov 19, 2015 at 4:39 PM, David Post <<a href="mailto:david.g.post@gmail.com">david.g.post@gmail.com</a>> wrote:<br>
>><br>
>> Bruce<br>
>><br>
>> One question: The Board suggests that if language i adopted that says “ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." there might be some existing registry agreements that would be "out of compliance with ICANN's responsibilities." I'd be curious to know what the Board is concerned with there - what parts of which registry agreements might be affected (and made non-compliant) by this language?<br>
>><br>
>> With respect to that same "regulations on services" language, the Board says that it is "unclear," and asks for "some examples of what the CCWG believes that ICANN should and should not be able to do."<br>
>><br>
>> I agree that the "services" language isn't clear at the moment. Here's my attempt to capture the point that I think is being made: ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication. <br>
>><br>
>> I think it's pretty straightforward. I use a domain name (<a href="http://davidpost.com">davidpost.com</a>) for Internet communication. The idea -- and I think pretty much everyone agrees with this? - is that ICANN can't impose any obligations on me that affect how I operate the site, what content I host or don't host, what goods or services I can or cannot offer, what billing system I use for those goods and services, what anti-virus software I install, ... It can't do that directly (by imposing some contract terms on me itself) or indirectly (by getting 3d parties like the registries or registrars to impose the obligations on me). <br>
>><br>
>> Registries and registrars, of course, are not entities "whose only connection to the DNS is that they use a domain name for Internet communication," so this clause shouldn't affect ICANN's ability to impose obligations on them (which remains limited by other portions of the Mission Statement). <br>
>><br>
>> David <br>
>><br>
>><br>
>><br>
>> David<br>
>><br>
>><br>
>><br>
>><br>
>> At 02:12 AM 11/19/2015, Bruce Tonkin wrote:<br>
>>><br>
>>> Hello All,<br>
>>><br>
>>> The Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.<br>
>>><br>
>>> The Board information call today considered the changes to the mission statement identified in that update.<br>
>>><br>
>>> Attached is the Board's preliminary comments on the mission statement part of the Dublin update report. As we review the remainder of that Update, we'll send through additional comments.<br>
>>><br>
>>> Regards,<br>
>>><br>
>>> Bruce Tonkin<br>
>>><br>
>>> ICANN Board Liaison to the CCWG<br>
>>><br>
>>><br>
>>><br>
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>><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">http://www.washingtonpost.com/people/david-post</a><br>
>> book (Jefferson's Moose) <a href="http://tinyurl.com/c327w2n">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>
>> *******************************<br>
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