[CCWG-ACCT] Implementation flaw in Mission section

Fri Apr 8 18:31:44 UTC 2016

I agree with Malcolm's analysis of the situation and support modifying the new bylaws to make it clear that the prohibition on regulating content is a broader Mission limitation that would encompass any means, not just the RAA and RA.

--MM

> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
> Malcolm Hutty
> Sent: Friday, April 8, 2016 7:29 AM
> To: Accountability Cross Community <accountability-cross-
> community at icann.org>
> Subject: [CCWG-ACCT] Implementation flaw in Mission section
> 
> 
> 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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