[CCWG-ACCT] Implementation flaw in Mission section

[Malcolm Hutty]

On 11/04/2016 19:42, Silver, Bradley wrote:
> Thanks Malcom (and Becky).   It is important that the implementing
> language be clear and unequivocal.   The concept we agreed on was
> "regulation", which is a specific type of activity.   If there are
> reasons why we cannot use this term in the context of ICANN's
> activities, we the lawyers should therefore seek to approximate this
> type of activity that regulators do.  Our discussions in the CCWG
> were recent enough that we can all remember how carefully these words
> were chosen, and how much they were debated, and if we had wanted to
> impose some sort of limitation on the terms of the RA or RAA that was
> not already encompassed by the description of ICANN's mission, we
> could have said so - and we did not.   The concept was one of ICANN
> attempting to exert a power to impose rules/conditions on third party
> services and content, and I think it's important to stay faithful to
> that, without reopening the debate we had in the CCWG.

Bradley, I think we're in complete agreement as to what we should be
trying to do, and almost completely agreed on how to express it as well.

You mention "what regulators do". Certainly in my experience they don't
only rely on imposing terms and conditions, but use a variety of
mechanisms to achieve their goals, from formal law to seeking to cajole
corporate representatives and leadership. So I think that reasoning also
supports a broader definition.

But perhaps we should stick more closely to the verb "regulate" than the
actor "regulator", to match the language of the report.

When I type "define: regulate" into Google, the definition given reads

(1) control or maintain the rate or speed of (a machine or process) so
that it operates properly.
(2) control or supervise (something, especially a company or business
activity) by means of rules and regulations.
(3) set (a clock or other apparatus) according to an external standard.

The second seems to me entirely consistent with my understanding of the
Report's provision. Other dictionaries will no doubt offer slightly
different definition, and I assume the implementation team will look at
a few.

Anyway, this isn't easy, and we're fumbling for the right works, in the
dark together, hand-in-hand.

All the best,

Malcolm.

> -----Original Message----- From:
> accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] On Behalf
> Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To:
> Accountability Cross Community Subject: Re: [CCWG-ACCT]
> Implementation flaw in Mission section
> 
> I see that Becky has replied to my message in the paper distributed
> for this evening's meeting, but the reply was not otherwise copied to
> the list. For ease of reference (and reply), here it is.
> 
> Becky Burr wrote:
>> Malcolm is correct that proposed text is different from the Report.
>> In the course of drafting, the CCWG attorneys pointed out that the
>>  construct (no regulation of services etc.) could create unintended
>> consequences related to the application of antitrust law. This was
>> viewed as particularly problematic under the current circumstances,
>> where the supervision of the US government (which at least arguably
>> provides some protection for ICANN) is being withdrawn.
>> 
>> We attempted to eliminate this problem and discussed several 
>> approaches to doing so. This approach seemed to get at the concern
>>  that was animating the CCWG in its discussions on this point, use
>> of the Registry Agreement and Registrar Accreditation Agreement to
>> regulate registrant conduct.
>> 
>> Malcolm is correct, of course, that ICANN might attempt to use some
>>  other vehicle to regulate content. But it is critical to keep in
>> mind that the prohibition on regulation is, by nature, a “belt and
>>  suspenders” approach. Keep in mind that ICANN is prohibited from
>> doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not
>> act outside its Mission.” So no matter what other mechanism ICANN
>> might find to attempt to regulate content, the Bylaws simply
>> prohibit that.
>> 
>> We are open to other constructs, so long as they don’t raise the
>> same antitrust concerns identified by Holly and Rosemary in our 
>> discussions. At a minimum, that requires us to avoid the term
>> “regulation” and to be as concrete as possible.
> 
> 
> 
> 
> 
> 
> 
> 
> On 08/04/2016 12:28, Malcolm Hutty 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.
>> 
> 

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            Malcolm Hutty | tel: +44 20 7645 3523
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