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At 06:03 PM 11/30/2015, Silver, Bradley wrote:<br>
<blockquote type=cite class=cite cite="">David, <br>
<br>
I am having some trouble understanding your examples below. Is
your concern with the grandfathering of the RAA that it would give ICANN
total freedom in deciding how to respond to enforcing provisions like
3.18 even such enforcement was clearly not consistent with its stated
mission?</blockquote><br>
Yes, that is a very, very serious concern. I don't know if I'd say
it gives ICANN "total freedom", but close to it. If we're
grandfathering in the agreements, then ICANN's actions to enforce the
terms of the agreements could be seen as having been "grandfathered
in" as well, and - as Becky's defamation example, and my fraud
example, show - that would encompass many things that we would all agree
(I think) are OUTSIDE the Mission.<br><br>
<blockquote type=cite class=cite cite=""> Or do you believe that to
the extent <b><u>any</u></b> enforcement by ICANN of provisions like 3.18
that touch on illegal activity that implicates “content” would take
such a provision outside the mission? If it’s the latter, then
it appears you are attempting to achieve a retrospective amendment of the
RA and RAA by redeffining “illegal activity” or “activity
contrary to applicable law” to specifically exclude any activity which
relates to the content associated with the Registered Name. <br>
</blockquote><br>
Yes, I believe this as well. I thought we had widespread agreement
on that. To the extent enforcement by ICANN of provisions like 3.18
<i>touch on illegal activity that implicates content</i> is outside the
mission. The Proposal clearly says: "ICANNs Mission
does not include the regulation of services that use the Domain Name
System or the regulation of the content these services carry or
provide." If enforcement of the the provision (again, like the
defamation/fraud examples) touches on "illegal activity that
implicates or relates to <i>content</i>, I do not believe that ICANN can
impose obligations (directly or indirectly) on domain name holders with
respect to that content. The RAA ad the RA appear to allow them to
do that - which is why we need to clarify that they're not
"grandfathered" in.<br><br>
It's funny, because a few hours ago you wrote:<br><br>
<blockquote type=cite class=cite cite="">BS: I cannot imagine how
anyone could force ICANN to interpret and enforce 3.18 or any other
provision in a manner that doesnt comport with ICANN’s mission,
particularly since we have language that says: ICANN shall act strictly
in accordance with, and only as reasonably appropriate to achieve its
Mission </blockquote><br>
You couldn't imagine doing that - but that's exactly what you're now,
no? You seem to be saying that ICANN may, through provisions like
3.18, deprive name holders of their registered names if their illegal
activity implicates content - even though we have language that says,
clearly (I thought), that ICANN may not regulate content. <br><br>
This is precisely what I am concerned with, and what I would hope we're
all concerned with: Using the existence of the (grandfathered)
RA/RAA <i>to allow ICANN to regulate content</i>. You are
convincing me that this is what you intend with the
"grandfather" language. If I'm wrong about that, I'd be
interested to know how I'm wrong and, as I asked earlier, what you think
the "grandfather" language accomplishes. <br><br>
I don't think I'm proposing a "retrospective amendment" of the
RA and the RAA - more like a belated overturning of an abuse of ICANN's
monopoly power. <br><br>
I believe we need to insist on a Mission Statement that would negate any
use of ICANN's monopoly power to impose an obligation on registrars to
revoke domains based on allegations of illegal content. Far from
persuading me that my reading of the grandfather in" language is
"absurd," you are persuading me that it is precisely what you
(ad perhaps others) have in mind - which illustrates the need for
clarification. <br><br>
David<br><br>
<blockquote type=cite class=cite cite=""><b>From:</b>
accountability-cross-community-bounces@icann.org
[<a href="mailto:accountability-cross-community-bounces@icann.org" eudora="autourl">
mailto:accountability-cross-community-bounces@icann.org</a>] <b>On Behalf
Of </b>David Post<br>
<b>Sent:</b> Monday, November 30, 2015 5:30 PM<br>
<b>To:</b> Burr, Becky<br>
<b>Cc:</b> NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert; Accountability
Cross Community<br>
<b>Subject:</b> Re: [CCWG-ACCT] Minority statements inclusion in
report<br>
<br>
At 01:55 PM 11/30/2015, Burr, Becky wrote:<br><br>
First, we discussed this on several calls (3 or 4), including the last.
<br>
Second, on a more substantive note, it is completely absurd to suggest
that grandfathering the <i>language</i> of existing contracts permits
ICANN to enforce any contract term in any way it likes and to claim the
protection of the picket fence forever going forward. Simply put,
the drafters are instructed to ensure that the provisions of existing
contracts are enforceable by their terms. As I said on this very
topic recently: <br><br>
Beyond that, the language of 3.18 in question imposes obligations on
<i>registrars</i> maintain ann abuse point of contact, invesstigate
allegations regarding illegal activities, take appropriate action, so I
donât think that amounounts to regulating registrants. I also
agree that there are situations in which illegal activity could impact
the stability and security of the Internetâ™s unique identifiers
(e.g., particularly involving malicious DNS exploits, etc.), so the
provision seems to me to be appropriate in furtherance of ICANNâ™s
Mission. <br><br>
The problem, of course, is that not all illegal activity threatens the
stability and security of the DNS; behavior that is illegal in some
jurisdictions is not illegal in all jurisdictions; and the
legality/illegality of a particular activity is generally a determination
left to sovereigns or courts. So, what constitutes an â
approropriate responseâ is going to vary from case to case.
<i>Theoretically, ICANN could choose to enforce the requirement in a
manner that exceeded the scope of its authority, e.g., it could begin to
say that registrars who do not suspend registrations in response to
allegations that an underlying site is defamatory are in
breach</i>. But I think 3.18 itself is a legitimate contract
provision that ICANN should be able to enforce.<br><br>
But that's the problem, right there. You say that if ICANN
"exceeds the scope of its authority" if it "begins to say
that registrars who do not suspend registrations in response to
allegations that an underlying site is defamatory are in
breach."<br><br>
But why is it so obvious that this exceeds the scope of its
authority? You will say: because we have said elsewhere that
ICANN shall not regulate content, and this regulates content.<br><br>
But it is not far-fetched for someone to suggest that the
"grandfathering" language modifies that, and was included
precisely to make it clear that enforcing the provisions of existing
agreements is WITHIN ICANN's authority. Under existing agreements,
Registrars are already obligated to provide "consequences ...
including suspension of domain name registrations" for
"activities contrary to applicable law." Defamation is an
"activity contrary to applicable law." Suspending
registrations in response to allegations that an underlying site is
defamatory is thus within the scope of (existing) agreements. If
those agreements are grandfathered in, it looks to me like we're saying
that when ICANN acts as it is authorized to do within the existing
agreements, it is acting within the scope of its authority. <br><br>
David<br><br>
<br><br>
<br><br>
<br>
<b>J. Beckwith Burr <br>
Neustar, Inc. </b>/<b> </b>Deputy General Counsel & Chief Privacy
Officer<br>
1775 Pennsylvania Avenue NW, Washington D.C. 20006<br>
<b>Office: </b>+1.202.533.2932 <b>Mobile: </b>+1.202.352.6367
<b>/</b> <a href="http://www.neustar.biz"><b>neustar.biz</a><br>
</b><br>
From: David Post
<<a href="mailto:david.g.post@gmail.com">david.g.post@gmail.com</a>
><br>
Date: Monday, November 30, 2015 at 1:32 PM<br>
To: Accountability Community
<<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>><br>
Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU"
<<a href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">
NCSG-DISCUSS@LISTSERV.SYR.EDU</a>>, Thomas Rickert
<<a href="mailto:thomas@rickert.net">thomas@rickert.net</a>>,
Accountability Community
<<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>><br>
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report<br><br>
<br>
The current Proposal (Annex 5 para 21) states in a
"Note": "For the avoidance of uncertainty, the
language of existing registry agreements and registrar accreditation
agreements should be grandfathered."<br><br>
I don't believe any of the previous circulated drafts contained this
language, and in my opinion it represents a very serious, and very
substantial, step backwards in this process. <br><br>
To begin with, it is not clear what "grandfathering" these
agreements mean. One possible implication is that everything within
the existing agreements is within ICANN's Mission - or to put it
differently, that the language of the Mission Statement should be
interpreted in a manner such that all provisions of the existing
agreements are inside the "picket fence" of ICANN's enumerated
powers. The opposite implication is possible, too - that there are
elements of the existing agreements that are NOT within the Mission, but
which are nonetheless being "grandfathered" in so that they
will not be invalidated in the future (notwithstanding their
inconsistency with the Mission).<br><br>
I believe that the former interpretation may be the one that is intended
- and I strongly disagree with that, and strongly dissent. The existing
agreements contain a number of provisions that are outside the scope of
ICANN's powers as we have defined it in the Mission Statement. One
most prominent example: In Specification 1 of the new gTLD Registry
Agreement, Registry operators agree to a set of mandatory "public
interest commitments" - PICs - and to adhere to "any remedies
ICANN imposes (which may include any reasonable remedy, including for the
avoidance of doubt, the termination of the Registry Agreement pursuant to
Section 4.3(e) of the Agreement) following a determination by any PICDRP
panel and to be bound by any such determination."<br><br>
Among the mandatory PICs, the Registry operator must "include a
provision in its Registry-Registrar Agreement that requires Registrars to
include in their Registration Agreements a provision prohibiting
Registered Name Holders from ... engaging in activity contrary to
applicable law, and providing (consistent with applicable law and any
related procedures) consequences for such activities including suspension
of the domain name."<br><br>
Prohibiting domain name holders from "engaging in activity contrary
to applicable law" is NOT within ICANN's scope as defined in the
Mission Statement. It is neither a matter "for which uniform
or coordinated resolution is reasonably necessary to facilitate the
openness, interoperability, resilience, security and/or stability of the
DNS," nor was it "developed through a bottom-up,
consensus-based multi-stakeholder process and designed to ensure the
stable and secure operation of the Internetâs uniqueque names
systems."<br><br>
<i>ICANN should not have the power to revoke, or to impose on others the
requirement that they revoke, anyone's continued use of a domain name
because they have "engaged in activity contrary to applicable
law." </i>Such a provision would appear to allow ICANN to do
what is, elsewhere, flatly prohibited: to impose regulations on
content. Activity contrary to applicable law includes activity that
(a) violates consumer protection law, (b) infringes copyright, (c)
violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant
banking or securities laws, etc. etc. etc. At best, this provision
is flatly inconsistent with the prohibition against regulating
content. At worst, it can be interpreted to provide an
"exception" to that prohibition - an exception that will
swallow up the prohibition in its entirety. <br><br>
David<i> <br><br>
</i>At 10:53 AM 11/30/2015, Mueller, Milton L wrote:<br><br>
FWIW, Robinâs dissent nt is fully in line with th the official
comments submitted by the Noncommercial Stakeholders Group during the
last public comment period. <br>
--MM<br>
<br>
<b>From:</b>
<a href="mailto:accountability-cross-community-bounces@icann.org">
accountability-cross-community-bounces@icann.org</a> [
<a href="mailto:accountability-cross-community-bounces@icann.org" eudora="autourl">
mailto:accountability-cross-community-bounces@icann.org</a>] <b>On Behalf
Of </b>Robin Gross<br>
<b>Sent:</b> Sunday, November 29, 2015 6:41 PM<br>
<b>To:</b> Thomas Rickert<br>
<b>Cc:</b>
<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a> Community<br>
<b>Subject:</b> Re: [CCWG-ACCT] Minority statements inclusion in
report<br>
<br>
Thanks, Thomas. See below.<br>
<br>
<b>Dissenting Opinion of Member Robin Gross (GNSO-NSCG)<br>
</b> <br>
The CCWG-Accountability make a number of helpful recommendations to
improve organizational accountability at ICANN, however one aspect of the
plan is deeply flawed: changing the role of ICANN's Governmental Advisory
Committee (GAC) from purely an âadvisoryâ role to a â
â ââ¬decision makingâ role over fundamentaental
matterers at ICANN, including its governance. Consequently the
proposal marginalizes the role of Supporting Organizations (SOâs)
compared to todaodayâs ICANN goveNN governance structure. p;
The degree of governmental empowerment over ICANN resulting from the
proposalâs cs community mechanhanism is dangerous to the success of
the proposalâs political acceptance as well as to its ultultimatte
impact on a free and open Internet.<br>
<br>
The creation of a community mechanism to hold ICANN accountable on key
issues made a critical error by departing from the existing power balance
between SOâ™s and nd ACâs as determined by relative boardard
appointments.ts. Instead, the proposed community mechanism elevates
the ACâs relative to thethe SOâs compared wpared with
todayâs b™s balance on ICANN's board of directors,rs, which does
not currently provide a decision making role to GAC, and which retains
the primacy of the Supporting Organizations on key decisions,
particularly those within the SOâs mandate. The
devaluing of tf tf the Supporting Organizations in ICANNâs key dy
decisiosions was a common theme in both previous public comment periods,
however the recommendations not only failed to address this widespread
concern, but went even further in devaluing SOâs in the communitnity
mechanism in the 3r 3rd report. The community mechanism failed to
take into account the appropriate roles and responsibilities of the
various SOâ™s and ACâs, and the dangers angers inherent it in
changing those roles with a âone sizeze fitsts allâ approach
to critical decision makingg. <br>
<br>
Additionally, I object to the proposed departure from ICANNâs
typical 30-day pubpublublic comment period on the 3rd report for
CCWG-Accountability. The 3rd reportâs public commomment only
allallows for 9 days of public comment after the language translations
are scheduled to be published, which is far too short of a public comment
period for a report of this significance and with so many important
changes since previous drafts.<br>
<br>
Robin Gross<br>
<br>
On Nov 29, 2015, at 1:29 PM, Thomas Rickert
<<a href="mailto:thomas@rickert.net">thomas@rickert.net</a>> wrote:
<br>
<br>
Dear Robin, <br>
as discussed during the last CCWG call, minority statements will be
included in the report as appendices if and when they are received. <br>
<br>
Best, <br>
Thomas <br>
<br>
--- <br>
<a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=9_5YAupJwVm6qd9FYkcvB50XsN6XMpB3eFmtm-kYBKI&e=">
rickert.net</a> <br>
<br>
Am 29.11.2015 um 21:37 schrieb Robin Gross
<<a href="mailto:robin@ipjustice.org">robin@ipjustice.org</a>>:
<br>
Dear Co-Chairs, <br>
I have still not received a response to this request. What is the
process for submitting minority statements? Please advise. <br>
Thanks, <br>
Robin<br><br>
<br>
On Nov 11, 2015, at 5:35 PM, Robin Gross
<<a href="mailto:robin@ipjustice.org">robin@ipjustice.org</a>>
wrote: <br>
<br>
Dear Co-Chairs, <br>
<br>
Could you please advise on the proposed schedule and process for ensuring
that minority statements will be included in the report [of the executive
summary]? <br>
<br>
Thank you, <br>
Robin <br>
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