[CCWG-ACCT] WP2 Issues from last night's call

[Malcolm Hutty]

On 04/11/2015 21:20, Silver, Bradley wrote:
> Even with the added language covering enforcement of contracts, I think
> there is significant potential for confusion about how to reconcile what
> ICANN is empowered to do on the one hand (coordinate), but forbidden
> from doing on the other (regulate)

And *that's* the basic misreading that lies at the heart of all of this
line of objections.

This clause absolutely does NOT prohibiting ICANN from "regulating". The
distinction isn't between ICANN co-ordinating (OK) and regulating (not
OK). The text simply doesn't say that.

What the text says is that ICANN cannot regulate CERTAIN PARTICULAR THINGS.

The ONLY thing this clause explicitly prohibits, and it's incredibly
clear and explicit about it, is
i) the services that use the unique identifiers (which are things like
web servers, mail servers, instant messaging platforms, etc etc); and
ii) the content that such services carry or provide (such as, what you
see on a particular web page).

This doesn't prevent regulation of the DNS. It doesn't even cover
regulation of registrar businesses, qua registrar businesses. It only
covers the services using the DNS, IP addresses etc.



I think at this time it's useful to reply to Steve Metalitz too

> Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”? 
> 
> Steve Metalitz  

Domain name registration doesn't use the DNS. Domain name registration
is something you do in order to be able to use a domain. It is entirely
antecedent to such use, and so clear outside the coverage of the clause.

"Services that use the Internet's unique identifiers" are things like
web servers, mail servers and Internet-connected coffee-pots. Domain
name registration is, at best, a service that *enables* the use of the
Internet's unique identifiers, and even then, you're using the term
"service" in an entirely different sense.

Saying that domain name registration is a service that uses the unique
identifiers is like the sun is a service that uses light. It doesn't. It
makes light available. To say that "oh well somehow light is involved in
what's going on" or "well, domain name registration is a service, and
domains names are covered here, so this must be the same thing" is,
quite frankly, to collect the written words without any regard for the
way they've been strung together.

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