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Malcolm<br><br>
I do appreciate the need for compromise, as you put it below, and I also
appreciate your thoughtful attempt to allay my fears about the new
language concerning the existing agreements. <br><br>
I also accept that we should "accept the long-established boundaries
to ICANN's role," and that "ICANN WILL regulate domain
names per se, and its enforcement mechanisms will make use of relevant
evidence to that effect ..." <br><br>
That's fine. But ICANN has itself transgressed those boundaries in
the past, and I think it is a mistake not to do all that we can to
identify where it has done so, so that we can make sure they don't do it
again in the future. I am very nervous about "grandfathering
in" those transgressions, in a manner that could enable someone
(like an IRP judge) to say that we have somehow ratified them and deemed
them to be appropriate exercises of ICANN's power. In my opinion,
Spec. 11 and the mandatory PICs represent a rather flagrant example of
that. The terms of Spec. 11 were introduced into the new gTLD
Registry Agreements without any pretense that they had been the product
of consensus policy-making, and I don't believe the requirement that
registrars must promise (or risk losing their accreditation) provide for
an "appropriate response" and for "consequences including
the suspension of domain name registrations" for registrants who act
in a manner "contrary to applicable law" is within the
"long-established boundaries" around what ICANN can do or not
do.<br><br>
So I'm just trying to be sure that the new language regarding the
existing agreements won't be understood in the future (and is not
intended to be understood) as somehow ratifying that kind of activity on
ICANN's part, that it implies somehow that everything that ICANN did in
regard to those agreements is an appropriate exercise of ICANN's
power.<br><br>
You (and others) have said that it doesn't imply that. You've told
us what you think it doesn't mean. <br><br>
<blockquote type=cite class=cite cite="">-- it doesn't give ICANN
unfettered freedom in deciding how to respond in enforcing provisions
like 3.18 </blockquote><br>
<blockquote type=cite class=cite cite="">-- 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.
</blockquote><br>
<blockquote type=cite class=cite cite="">-- I cannot imagine how anyone
could force ICANN to interpret and enforce 3.18 or any other provision in
a manner that doesn't comport with ICANN's mission, </blockquote><br>
That all sounds fine to me. But (a) that doesn't jump out me from
the language itself (though as you suggest, we can wait and see how the
lawyers sort it out). <br>
More importantly, if that's what "grandfathering the existing
agreements" <i>doesn't </i>mean, what does it mean? What is it
accomplishing? What is its point? If my interpretation is
wrong (as everyone is reassuring me it is), what is the correct
interpretation? If it's meant to expand the scope of the Mission in
some way, in what way? If it's not meant to expand the scope of the
Mission, why is it in there?<br><br>
I respectfully suggest this is not something we can just leave to the
lawyers to see what they come up with. I do think we need to tell
them what we think it means so that they can address it
appropriately. <br><br>
David<br><br>
<br>
David<br><br>
<br>
At 08:50 PM 11/30/2015, Malcolm Hutty wrote:<br><br>
<br>
<blockquote type=cite class=cite cite="">
<blockquote type=cite class=cite cite="">
<blockquote type=cite class=cite cite="">BS Or do you believe
that to the extent ANY enforcement by ICANN of<br>
provisions like 3.18 that touch on illegal activity that implicates<br>
“content†would take such a provisioision outside the<br>
mission?  If it’s the latter, then en it appears you are<br>
attempting to achieve a retrospective amendment of the RA and RAA<br>
by redeffining “illegal activityâây†or “activity<br>
contrary to applicable law†to specifically exclude any
activity<br>
which relates to the content associated with the Registered Name. Ă‚<br>
Ă‚</blockquote> </blockquote></blockquote><br><br>
<br>
<blockquote type=cite class=cite cite="">
<blockquote type=cite class=cite cite="">DP Yes, I believe this as
well. I thought we had widespread agreement on<br>
that. To the extent enforcement by ICANN of provisions like 3.18<br>
_touch on illegal activity that implicates content_ is outside the<br>
mission. The Proposal clearly says: "ICANN’s Mission does not<br>
include the regulation of services that use the Domain Name System
or<br>
the regulation of the content these services carry or provide."
If<br>
enforcement of the the provision (again, like the defamation/fraud<br>
examples) touches on "illegal activity that implicates or relates
to<br>
_content_, I do not believe that ICANN can impose obligations<br>
(directly or indirectly) on domain name holders with respect to that<br>
content. The RAA ad the RA appear to allow them to do that - which
is<br>
why we need to clarify that they're not "grandfathered"
in.</blockquote><br>
MH I am afraid I must disagree with you here, David.<br><br>
Merely "touching upon" content is not, in my view, sufficient
to place<br>
something outside the scope of ICANN's Mission and it wasn't my
intent,<br>
in supporting this text, to make it so.<br><br>
I certainly wish to prevent ICANN using its authority over domain
names<br>
as leverage to enable it to engage in activity whose *purpose* is
the<br>
regulation of content, even if the *means* is limited to regulating
domain<br>
names. But if the true purpose is an entirely proper regulation of
domain<br>
names, then merely "touching upon" content is not sufficient,
in my view,<br>
to prevent ICANN from that goal.<br><br>
Perhaps curiously, I can't think of any better example example to
illustrate<br>
this distinction than the discussion we recently had about the UDRP:<br>
in the UDRP, the purpose is to determine whether someone has registered
a<br>
domain to which they have no right (or rather, in which someone else's
rights<br>
in that domain preempt and preclude them from registering it). So long
as<br>
the focus is on answering that question, content on services addressed
using<br>
that domain is perfectly admissible and relevant evidence. Selling
widgets<br>
marked with a counterfeit "Banana" trademark on
<a href="http://www.banana.com/" eudora="autourl">www.banana.com</a> is
perfectly<br>
good evidence that your registration of banana.com was intended as a
misuse<br>
of Banana Corp's trademark and not as a legitimate, lawful use of the
string<br>
banana to market fruit. On the other hand, content is only evidence in
that<br>
question: illegitimate content cannot of itself give rise to a right to
a<br>
third party to supercede the registrant's rights in the domain under
the<br>
UDRP, even if it does give rise to remedies against the registrant under
local law.<br><br>
I really do think the respective sides to this debate need to accept
the<br>
long-established boundaries to ICANN's role, even if neither are
terribly<br>
happy about them. ICANN WILL regulate domain names per se, and its
enforcement<br>
mechanisms will make use of relevant evidence to that effect; so sorry,
dear<br>
friends in the civil society community, but this is settled. On the
other<br>
hand, ICANN CANNOT be authorised to regulate the entire Internet, using
the threat of domain<br>
suspension as a cure-all for every supposed evil that people do online:
we are<br>
simply not willing to give ICANN such power; that must be reserved for
governments<br>
acting within their own jurisdictions (and not collectively, through
GAC).<br><br>
This is the balance. This is the compromise. On this compromise rests
not<br>
only support for transition, but support for ICANN itself, and for
the<br>
multi-stakeholder model more generally. If ICANN is not able to
regulate<br>
the sphere placed within its responsibility, support for ICANN as an
effective<br>
means for discharging that responsibility will evaporate, first within
the<br>
IPR lobby, then governments, and gradually more generally. But equally,
if<br>
ICANN overreaches, and uses its power to implement more general
regulation of<br>
what occurs online, then support will evaporate just as fast: first with
civil<br>
society, then with other Internet intermediaries like ISPs, and
remarkably rapidly with<br>
governments too (when that power is used for a purpose contrary to their
own local policy,<br>
as must be inevitable), and then at last with the whole
community.<br><br>
Our job here is to preserve that balance, not to upset it; to ensure that
the<br>
enforceable rules we write to uphold that balance are durable, and will
ensure<br>
that the line is respected, not just today, but in the face of challenges
to come.<br><br>
I believe our Third Draft Report successfully preserves that balance and,
crucially,<br>
provides the means to ensure that the same balance survives in the
post-transition<br>
environment. Our lawyers must now implement these measures, and we must
then<br>
check that they have done so.<br><br>
Kind Regards,<br><br>
Malcolm.<br><br>
-- <br>
Malcolm Hutty | tel: +44 20 7645 3523<br>
Head of Public Affairs | Read the LINX Public Affairs
blog<br>
London Internet Exchange |
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http://publicaffairs.linx.net/</a><br><br>
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Thomas Street, London SE1 9RY<br><br>
Company Registered in
England No. 3137929<br>
Trinity Court, Trinity Street,
Peterborough PE1 1DA</blockquote><br>
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