[CCWG-ACCT] Implementation flaw in Mission section

Fri Apr 8 12:23:08 UTC 2016

Aha
This is among those risks that the process if drafting produced
There nay be many others
Kavouss 

Sent from my iPhone

> On 8 Apr 2016, at 13:28, Malcolm Hutty <malcolm at linx.net> wrote:
> 
> 
> 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
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange | http://publicaffairs.linx.net/
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