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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 Internet’s unique 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>
<blockquote type=cite class=cite cite="">FWIW, Robin’s dissent is fully
in line with the official comments submitted by the Noncommercial
Stakeholders Group during the last public comment period. <br>
--MM<br>
<br>
<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>Robin Gross<br>
<b>Sent:</b> Sunday, November 29, 2015 6:41 PM<br>
<b>To:</b> Thomas Rickert<br>
<b>Cc:</b> accountability-cross-community@icann.org 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 “advisory” role to a “decision
making” role over fundamental matters at ICANN, including its
governance. Consequently the proposal marginalizes the role of
Supporting Organizations (SO’s) compared to today’s ICANN governance
structure. The degree of governmental empowerment over ICANN
resulting from the proposal’s community mechanism is dangerous to the
success of the proposal’s political acceptance as well as to its
ultimate 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 SO’s and AC’s as determined by relative board
appointments. Instead, the proposed community mechanism elevates
the AC’s relative to the SO’s compared with today’s balance on
ICANN's board of directors, 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 SO’s
mandate. The devaluing of the Supporting Organizations in
ICANN’s key decisions 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 SO’s in the
community mechanism in the 3rd report. The community mechanism
failed to take into account the appropriate roles and responsibilities of
the various SO’s and AC’s, and the dangers inherent in changing those
roles with a “one size fits all” approach to critical decision
making. <br>
<br>
Additionally, I object to the proposed departure from ICANN’s typical
30-day public comment period on the 3rd report for
CCWG-Accountability. The 3rd report’s public comment only allows
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>
<dl>
<dd>On Nov 29, 2015, at 1:29 PM, Thomas Rickert
<<a href="mailto:thomas@rickert.net">thomas@rickert.net</a>> wrote:
<dd>
<dd>Dear Robin,
<dd>as discussed during the last CCWG call, minority statements will be
included in the report as appendices if and when they are received.
<dd>
<dd>Best,
<dd>Thomas
<dd>
<dd>---
<dd><a href="http://rickert.net/">rickert.net</a>
<dd>
<dd>Am 29.11.2015 um 21:37 schrieb Robin Gross
<<a href="mailto:robin@ipjustice.org">robin@ipjustice.org</a>>:
<dl>
<dd>Dear Co-Chairs,
<dd>I have still not received a response to this request. What is
the process for submitting minority statements? Please advise.
<dd>Thanks,
<dd>Robin<br>
<br>
<br><br>
<dl>
<dd>On Nov 11, 2015, at 5:35 PM, Robin Gross
<<a href="mailto:robin@ipjustice.org">robin@ipjustice.org</a>>
wrote:
<dd>
<dd>Dear Co-Chairs,
<dd>
<dd>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]?
<dd>
<dd>Thank you,
<dd>Robin
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list<br><br>
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</dl>
<dd> <br><br>
</dl>
</dl> <br>
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