<html>
<body>
Greg: <br><br>
I'd be interested to know how you would respond to Andrew Sullivan's
hypothetical:<br><br>
<blockquote type=cite class=cite cite="">What about collaborating with
anti-abuse people in taking down names that are the source of
attacks. Is that an imposition of an<br>
obligation on someone whose only connection to the DNS is the use you
describe? </blockquote><br>
Wouldn't that be prohibited under your language as "a regulation on
services ... that use the Internet's unique identifiers"?
<br><br>
I think what confuses me is the meaning you're giving to "use."
You wrote: <br><br>
<blockquote type=cite class=cite cite="">I am saying that the type of
"use" referred to here is not the use in the sense of owning a
domain name or typing in a domain name, whether its being done by
registry operators, registrars or my Aunt Tillie. They may
initiate a chain of events that leads to a software process
"using" an IP address or domain name, but initiating that chain
of events is not using a unique identifier, any more than I use a
carburetor when I drive a car.<br>
</blockquote><br>
But you DO "use a carburetor" when you drive a car, just as you
use your car's tires, transmission, etc. when you drive it. Is that
incorrect? <br>
<br>
To reiterate something I said elsewhere, I'm not at all opposed to
crafting the prohibition to concentrate on the services that ICANN cannot
regulate, if we can find language that does the job well. <br><br>
David<br><br>
At 01:07 PM 11/20/2015, Greg Shatan wrote:<br>
<blockquote type=cite class=cite cite="">Bruce,<br><br>
I've just posted an email to this thread that clarifies what is meant by
"services" in the following clause:<br><br>
<dl>
<dl>
<dd><font face="arial black">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. ICANN shall have the ability to
negotiate, enter into and enforce agreements with contracted parties in
service of its mission. </font>
</dl>
</dl><br>
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. 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><br>
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><br>
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><br>
As to the Board's concerns:
<ul>
<li><font face="verdana">"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.
<li>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): Â 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.
<li>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.
</ul><br>
Greg<br>
</font><br>
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:
<dl>
<dd>Bruce<br>
<dd>One question:Â 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."Â 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>
<dd>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>
<dd>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:Â 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>
<dd>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>
<dd>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>
<dd>David <br>
<br>
<br>
<dd>David<br>
<br>
<br>
<br>
<dd>At 02:12 AM 11/19/2015, Bruce Tonkin
wrote:<blockquote type=cite class=cite cite="">
<dd>Hello All,<br>
<dd>The Board has been considering the CCWG Update on Progress Made In
and After ICANN54 in Dublin published on 15 Nov 2015.<br>
<dd>The Board information call today considered the changes to the
mission statement identified in that update.<br>
<dd>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>
<dd>Regards,<br>
<dd>Bruce Tonkin<br>
<dd>ICANN Board Liaison to the CCWG<br>
<br>
<br>
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote>
<dd>*******************************
<dd>David G Post - Senior Fellow, Open Technology Institute/New America
Foundation
<dd>blog (Volokh Conspiracy)
<a href="http://www.washingtonpost.com/people/david-post">
http://www.washingtonpost.com/people/david-post</a>
<dd>book (Jefferson's Moose)Â
<a href="http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0">
http://tinyurl.com/c327w2n     </a>
<dd>music
<a href="http://tinyurl.com/davidpostmusic">
http://tinyurl.com/davidpostmusic</a> publications etc.Â
<a href="??.htm">http://www.davidpost.com       </a>
<dd>******************************* <br>
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<br>
</blockquote>
</dl><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>