[CCWG-ACCT] regulatory/mission issue WS2

Fri Nov 6 23:21:36 UTC 2015

Malcolm,

A few brief comments inline in direct response to your email and in
addition to my not brief comments a few minutes ago.

On Fri, Nov 6, 2015 at 2:21 PM, Malcolm Hutty <malcolm at linx.net> wrote:

>
> On 06/11/2015 17:30, Burr, Becky wrote:
> > All:  At the risk of causing a riot, I confess that am getting
> > increasingly concerned that we are confusing ourselves (and possibly the
> > bylaws) by trying to include and explain the prohibition on regulation
> > of services that use the Internet’s unique identifiers or the content
> > that such services carry or provide.  Perhaps we would be better off
> > relying on a clear Mission statement and enhanced accountability
> > mechanisms to prevent mission creep?
>
> While I appreciate the difficult position you are in as Rapporteur in
> trying to find a solution, I think that's very dangerous and indeed
> unwise suggestion.
>
> Firstly, very many people consider this clause to be an essential
> component of trusting ICANN, independent of US oversight. You are only
> proposing deleting this in response to pressure from the intellectual
> property community, a stakegroup that many other suspect (not without
> reason) of aspirations to turn ICANN into precisely what is prohibited
> by this clause. Deleting it will be seen as only confirming those fears.
>

GS:  I am here engaging in good faith discussion of concerns that I have
about this Bylaw.  If that's "pressure," than all that everybody does at
ICANN is "pressure."  And there's nothing inherently more noble in
"pressure" from the ISP/IXP community than from the business/IP community.
If you mean something else by "pressure," than that doesn't apply to my
interventions here.  As for "precisely what is prohibited by this clause"
I don't think there is any such thing -- this Bylaw can be seen to prohibit
quite a number of things and yet quite a number of similar things will not
be prohibited by it, due to the vague and ambiguous wording.  What do you
think is "precisely what is prohibited by this clause"?  Vague imprecations
of horrible "aspirations" do not contribute to useful discourse.  To the
extent it prohibits ICANN from being used to muzzle and oppress those who
who express unpopular or controversial opinions or those who create content
they want to share with the world -- sign me up.  I don't want that either.

>
> Secondly, there was very strong support for this clause in the previous
> public comment rounds - not just the previous one, but also the first.
> Deleting it (especially in the context of the rather compressed process
> we plan going forward to completion) will be seen as removing a major
> promised protection at the last moment, and so will also invite
> trenchant criticism on process grounds, on top of criticism of the
> substance of the change.
>

GS: Again, I would appreciate some more clarity and specificity about this
"major promised protection." Vague or broad statements just compound the
problem inherent in this Bylaw.

>
> Thirdly, your argument that it is duplicative and so unnecessary, while
> not unreasonable, is by no means overwhelmingly persuasive. One of the
> mischiefs that this clause seeks to prevent is ICANN claiming that it is
> entitled to say "In order to register and use a domain, you must comply
> with community developed policy for domains *regardless of the content
> of that policy and with no limits on what that policy might contain*".
> Absent this clause, it is not easy to see conclusive evidence that such
> a position would be invalid.

GS:  I think it would be quite clear and conclusive evidence if the policy
went beyond the stated Mission -- those are very clear limits on ICANN
policy, including community developed policy.  I don't think this clause
(especially given its ambiguities) provides much if any evidence of what
that policy cannot say.  (The clause may not be beyond saving, but clarity
and conclusiveness are hardly evident at this point.)

I know that you place great reliance on
> Specification 1, and as a Registry for whom Specification 1 is part of
> your Registry agreement, I can see why that would satisfy your own
> interests. But others are entitled to fear that future rounds may use a
> different Specification 1, or none at all, or that Registries might
> choose to waive Specification 1 and so increase ICANN's role without any
> consent from other parts of the ICANN community. Registries are not the
> only stakeholder group with an interest in seeing the substance of
> Specification 1 maintained, and others who do have no reason to be as
> satisfied by Specification 1 as a mechanism as Registries may be.
>

GS: These contracts are the end result of arduous work both at the policy
level and at the contracted parties level.  I strongly doubt that the
Registries have any capacity, unilaterally or with the agreement of ICANN,
to "waive Specification 1."  There's no basis for such an assertion.

>
> Fourthly, your argument that a general limitation to enumerated powers
> makes a specific exclusion unnecessary is hardly novel. In the time of
> your own country's adoption of its Constitution, a central point of
> controversy was the same question, namely whether the Bill of Rights was
> still necessary, or was unnecessary and indeed undesirable because the
> Federal government was only granted enumerated powers. You know that the
> proponents of a Bill of Rights won the argument then, and were
> vindicated by subsequent history.
>

GS:  That's a stirring allusion to history, but it doesn't make Becky's
position in this instance any less valid.  Both approaches are valid in the
appropriate place and time, and need to be viewed in larger contexts.  If
the Federal government was truly and strictly bound by those enumerated
powers and thus left small and weakened, we might not have needed the Bill
of Rights -- but we could well still have slavery.

Indeed the Bill of Rights in many ways strengthened the Federal Government
and empowered it to curb the regressive excesses espoused in certain
corners of the country.  So, the proponents of the Bill of Rights might not
have gotten exactly what they bargained for, even if the Bill of Rights
itself has proven to be a great success. But I digress....

>
> Finally, perhaps most importantly, this clause provides the most clear
> and visible commitment that can be pointed to as satisfying the NTIA
> requirement that the future ICANN, after implementation of our reforms,
> can be relied upon to continue to support an open Internet. This is a
> core NTIA criterion. Moreover, this is an issue that is not only of
> interest to major stakeholder groups within the ICANN community, but has
> been a central point of focus in Congressional attention to this
> transition. The last-minute removal of this clause could have a
> destabilising on political support for transition.
>

GS:  I have some sympathy with this view, but I think that this clause is
only partially (or even incidentally) about an open Internet.  As noted
above, I'm all in favor of an open Internet -- but not one that is "wide
open" like a lawless Old West town or a corrupt port out of some film noir.

>
> I am on record as having said that if we cannot get consensus we should
> revert to the text of the two previous drafts for public comment.
> However, the text I offered most recently as a compromise appeared to be
> getting serious consideration from Greg and the IPC
>
> "ICANN shall only act strictly in accordance with its Mission. Without
> in any way limiting the foregoing, ICANN shall not engage in or use its
> powers to attempt the regulation of services that use the Internet's
> unique identifiers to enable or facilitate their reachability over the
> Internet, nor shall it regulate the content that those services carry or
> provide. ICANN shall have the ability to negotiate, enter into and
> enforce agreements with contracted parties in service of its Mission."
>
> I think it's therefore unfortunate that you should propose deletion,
> upsetting the possibility of the consensus that had seemed to be close.
>

GS: I think Becky has offered an elegant and more desirable solution from
my point of view.  I would not underestimate the amount of work (to which I
am committed, as always) needed on the  text you offered to get close to
consensus.  My prior email discusses some of those concerns.  If those
need to be turned into drafting revisions, that will happen.  But I think
we owe it to ourselves to explore Becky's suggestion.

>
> In the light of these arguments, I hope you feel it best to withdraw
> your suggestion.
>

GS: I have to say that I don't find your arguments so compelling as to
create such a feeling for me.  Becky can speak for herself.  However, I
would say that once a suggestion is under discussion, it is not an option
for any one person to unilaterally withdraw it (including the one who
offered it).  As such I think your request is out of order.

>
>
>
> Malcolm.
>
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
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