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At 03:58 PM 12/17/2015, Mueller, Milton L wrote:<br>
<blockquote type=cite class=cite cite="">[SNIP] <br>
More responses to Becky in line below:<br>
<br>
<i>BB: While I don’t think that ICANN has the authority to
<b>demand </b>that the registry operator adopt such a policy, I have no
problem whatsoever with ICANN holding the registrant to that policy if it
was offered as part of the application. (Others may well disagree
with me.)<br>
</i> <br>
MM: I do disagree. One problem is that the line between what ICANN
demands and what is offered “voluntarily” by the registry is unclear, and
easily fudged, given ICANN’s monopoly position. For example, suppose
someone applied for that TLD and the GAC and ALAC advised that the
applicant not be given the domain unless they adopted such a policy. If
this would be classified as the registry “voluntarily” adopting the
policy (because they will be denied entry if they don’t) it is very
clearly an example of ICANN using its monopoly control of the root to
impose regulation on the users <br>
<i>[SNIP]</i></blockquote><br>
I agree that the line between "voluntary" provisions and
"mandatory" provisions is a difficult one to draw. But
I'm not sure that means that it has to be abandoned, or that a
well-formed IRP couldn't distinguish between the two. Some policies
are imposed on registry operators (and/or on registrars and registrants)
by virtue of an ICANN policy - those are relatively easy to characterize
as "mandatory." The example you gave is much harder - but
it does seem to me that it's not too difficult to characterize that as
"mandatory" as well, and that the affected party would and
should be able to make the argument you're making (i.e., that is an
example of ICANN "using its monopoly control of the root to impose
regulation of the users"), and that it would therefore have to be
within the Mission to be valid.<br><br>
David<br><br>
<br><br>
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