[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

[Malcolm Hutty]

On 11/11/2015 06:26, Greg Shatan wrote:
> 
> ​GS:  I think there are two fundamental flaws here, which essentially
> negate this entire analysis.  First, this attempts to conflate the
> public comment record and the concept of CCWG consensus.  Public
> comments are important and they must be considered in the work of the
> CCWG (or any WG) but they are in no way a measure of consensus (or lack
> of consensus) within the CCWG​.  

Greg,

You can lawyer this as much as you like, but at the end of the day we
are trying to produce a report that has broad consensus in the
community. To present a Final Draft Report that does the opposite of the
overwhelming majority of public feedback received would be offensive to
the very concept of bottom-up multistakeholderism, however you try to
slice and dice it.

> The second fundamental flaw is the presumption that enforcing "
> voluntarily assume​d​ obligations with respect to registry operations
> ​" constitutes "regulation of services that use the DNS or the content
> these services carry or provide" or the regulation of entities with
> which iCANN does not have a contractual relationship. 

Nobody has said that such obligations will necessarily constitute such
regulation. This is a straw man of your own creation.

The point is that such obligations *could* include provisions that would
amount to such regulation. Accordingly, if we immunise those contracts
from all possibility of review, as you propose, it will not be possible
to prevent ICANN from engaging in such regulation.

This is an entirely realistic fear. If ICANN did attempt such
regulation, it would pretty much have to use this mechanism; as Andrew
has pointed out, the only other lever is the threat to remove the
delegation, which isn't realistic.

If there is to be any restriction on the scope of ICANN's ability to
regulate content whatsoever, we cannot have these contracts deemed to be
acceptable by definition. These contracts are necessary and, in most
respects, entirely proper. But they cannot be put beyond challenge.

All aspects of ICANN's activities must be held accountable to standards
set out in the Mission, not merely "all aspects except the contracts it
signs".

Support for this position in the public comment record is clear and
overwhelming.

Malcolm

* An agreement for ICANN to start regulating this content might be
entered into with a registry's entirely willing collusion, or it might
be effectively imposed, as in "if you want the gTLD you've applied to
run, you'd better sign up to these "voluntarily" obligations. Either way
circumvents the limits on ICANN's Mission, to the potential detriment of
registrants. So whether these obligations are truly "voluntary" *for the
registry* is completely immaterial; if they impose mandatory controls on
the registrant beyond the legitimate extent of ICANN's Mission, then
ICANN should have no part of them and should not sign such a contract.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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