[CCWG-ACCT] Implementation flaw in Mission section

[Malcolm Hutty]

I have found a discrepancy between CCWG Final Report and the
implementation of the draft Bylaws in the Mission section.

The Report approved by the Chartering Organisations says:

"* Clarify that ICANN’s Mission does not include the regulation of
services that use the Domain Name System or the regulation of the
content these services carry or provide." (paragraph 134)

The Draft Bylaws implements this as follows:
"*  ICANN shall not use its contracts with registries and registrars to
impose terms and conditions that exceed the scope of ICANN’s Mission on
services that use the Internet’s unique identifiers or the content that
such services carry or provide." (Article I Section 1.1 (c))


Firstly, this draft bylaw would pick on only one means by which ICANN
might seek to regulate content (through the RA or RAA contracts), and
prohibits that. There is no such limitation in the CCWG Report: our
Report prohibits any attempt to regulate content by ICANN, whether
through the RA/RAA contracts or by any other means.

Certainly, the RA/RAA contract is the most likely means by which ICANN
might seek to regulate content and services. However, if ICANN manages
to come up with some other means (including means that cannot now be
imagined) then a full implementation of the CCWG Report would cover that
too.

This is a clear and objective discrepancy.

Secondly, the CCWG Report expresses this limitation as an exclusion from
the Mission. That was quite deliberate, and significant. We never
expressed this section as a bare prohibition on some action, it was
always considered to be essential that it was a Mission limitation.

This aspect of the Report's proposal is not reflected in the draft bylaw
at all. That is also clear discrepancy.

The significance of this is that a Mission limitation has a broader
scope. Excluding regulation of content from the Mission means any action
aimed at regulating content can be challenged, including actions that
(if done for some legitimate purpose) would be entirely OK. By contrast,
a Bylaw that merely prohibits a certain class of action is weaker,
because it says it's OK for ICANN to regulate content if it can find
some way of doing so within its permitted powers. That's simply not
consistent with the Report approved by the Chartering Organisations.

Finally, in the future there may arise some disagreement as to whether a
specific activity constitutes "regulation", in particular in marginal
cases. Before we adopted the Report, our lawyers advised us not to seek
to tightly define this in every particular, but to allow precedent to
develop as cases arise. We accepted that advice. The implementation team
should therefore avoid seeking to resolve that deliberate ambiguity in
favour of the narrowest possible definition of regulation: again, that's
not consistent with the Report.

I therefore propose we transmit the following request to the
implementation team.

"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report
(prohibition of regulation of content) as a prohibition use of its
contracts with registries and registrars to regulate content. This does
not fully implement our Report. Please ensure that ICANN is prohibited
from regulating content through any mechanism, not only through registry
and registrar contracts. Furthermore, please exclude express this as an
exclusion from the Mission, not merely a bare prohibition on certain
actions, so that activities that would otherwise be permitted to ICANN
can be challenged if they are designed to achieve this prohibited purpose."


I hesitate to offer alternative wording: the lawyers may wish to come up
with their own, and we should let them. But I will offer these
observations and a brief suggestion.

1. I understand that the lawyers wished to avoid use of the word
regulation. Fine.
2. When moving away from the word regulation, they also moved away from
describing a class of activity (regulation) to a specific action (using
X contract in Y way). I think this is where they went wrong. This in
itself limits the scope of the restriction.
3. Sticking as closely as possible to the text of the Report that
Chartering Organisations have approved would seem advisable. So if they
want to avoid the word regulation, look for some synonym.

Thus compare our Report:
"Clarify that ICANN’s Mission does not include the regulation of
services that use the Domain Name System or the regulation of the
content these services carry or provide."

with the implementation team's draft bylaw

"ICANN shall not use its contracts with registries and registrars to
impose terms and conditions that exceed the scope of ICANN’s Mission on
services that use the Internet’s unique identifiers or the content that
such services carry or provide."

and my alternative suggestion for this Bylaw

"ICANN's Mission does not include seeking to constrain or impose
requirements upon the services the use the Domain Name System, nor
seeking to constrain the content that those services carry or provide".

That would follow the Report as closely as possible, preserve the
restriction as a limit on ICANN's Mission as intended, and still achieve
the lawyers' goal of avoiding the word "regulate".


Kind Regards,

Malcolm.

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