[CCWG-ACCT] Implementation flaw in Mission section

Mon Apr 11 21:22:15 UTC 2016

Good question Milton,  I would like to know if that word works.

HOLLY J. GREGORY
Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice

SIDLEY AUSTIN LLP
+1 212 839 5853
holly.gregory at sidley.com
-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Mueller, Milton L
Sent: Monday, April 11, 2016 3:59 PM
To: Malcolm Hutty; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section

What's wrong with the word "control" instead of "regulate"?

> -----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 3:13 PM
> To: Silver, Bradley <Bradley.Silver at timewarner.com>; Accountability Cross
> Community <accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
>
>
>
> 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.
> >>
> >
>
> --
>             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
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list Accountability-Cross-
> Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community

****************************************************************************************************
This e-mail is sent by a law firm and may contain information that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any attachments and notify us
immediately.

****************************************************************************************************