[CCWG-ACCT] Implementation flaw in Mission section

Fri Apr 8 20:15:23 UTC 2016

-1

CW

On 08 Apr 2016, at 20:56, Robin Gross <robin at ipjustice.org> wrote:

> I agree that this is an important clarification that we need to make for the proposal to be implemented properly.
> 
> Thanks,
> Robin
> 
>> On Apr 8, 2016, at 11:31 AM, Mueller, Milton L <milton at gatech.edu> wrote:
>> 
>> 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/
>>> 
>>>                London Internet Exchange Ltd
>>>      Monument Place, 24 Monument Street, London EC3R 8AJ
>>> 
>>>        Company Registered in England No. 3137929
>>>      Trinity Court, Trinity Street, Peterborough PE1 1DA
>>> 
>>> 
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