[CCWG-ACCT] Implementation flaw in Mission section

Mon Apr 11 22:44:00 UTC 2016

I agree with Bradley.  Would the following work?  I haven't thought it
through myself, but I throw it out there as a conceptual possibility.

*ICANN shall not impose controls on services that use the Internet’s unique
identifiers or the content that such services carry or provide.*

Since nothing is ever simple, I will also note that I don't believe we came
to agreement on what "services" means -- services (such as web services*)
that run on e.g., computers and communicate over the Internet, or service
businesses that use the internet.

Greg

___
* From Wikipedia: A *Web service* is a service offered by an electronic
device to another electronic device, communicating with each other via
the World
wide web <https://en.wikipedia.org/wiki/World_wide_web>. In a web service,
web technology such as the HTTP <https://en.wikipedia.org/wiki/HTTP>,
originally designed for human-to-machine communication, is utilized for
machine-to-machine communication, more specifically for transferring
machine readable file formats such as XML
<https://en.wikipedia.org/wiki/XML> and JSON
<https://en.wikipedia.org/wiki/JSON>. In practice, the web service
typically provides an object-oriented
<https://en.wikipedia.org/wiki/Object-oriented_database> web based
interface to a database server, utilized for example by another web server,
or by a mobile application
<https://en.wikipedia.org/wiki/Mobile_application>, that provides a user
interface to the end user. Another common application offered to the end
user may be a mashup
<https://en.wikipedia.org/wiki/Mashup_(web_application_hybrid)>, where a
web server consumes several web services at different machines, and
compiles the content into one user interface.

The W3C <https://en.wikipedia.org/wiki/W3C> defines a Web service generally
as:

a software system designed to support interoperable
<https://en.wikipedia.org/wiki/Interoperability> machine-to-machine
interaction over a network <https://en.wikipedia.org/wiki/Computer_network>.
[1] <https://en.wikipedia.org/wiki/Web_service#cite_note-W3WSG-1>

[image: http://hilweb1/images/signature.jpg]

*Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP

245 Park Avenue, 27th Floor | New York, New York 10167
T: 212-609-6873
F: 212-416-7613
gshatan @mccarter.com | www.mccarter.com

BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK
EAST BRUNSWICK | PHILADELPHIA  | WILMINGTON | WASHINGTON, DC

On Mon, Apr 11, 2016 at 6:04 PM, Silver, Bradley <
Bradley.Silver at timewarner.com> wrote:

> The problem with that solution is that it does not begin from where the
> report left off.   The CCWG was unable to reach agreement on what was meant
> by the verb "regulate" or what it meant for ICANN to be a "regulator".
>  Rather, agreement was reached on ICANN not "imposing regulations" on
> services, and the content of such services.   It is this concept of
> "imposing regulations" that needs translation.  I see no reason to depart
> from "imposing", which has a clear meaning, and I am sure the lawyers can
> find a substitute for the term "regulations".  I look forward to seeing
> what they come back with.
>
> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] On Behalf Of James
> Gannon
> Sent: Monday, April 11, 2016 5:45 PM
> To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross
> Community
> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
>
> For whats its worth it would work for me also.
>
> -James
>
>
>
> On 11/04/2016, 10:22 p.m., "
> accountability-cross-community-bounces at icann.org on behalf of Gregory,
> Holly" <accountability-cross-community-bounces at icann.org on behalf of
> holly.gregory at sidley.com> wrote:
>
> >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.
> >
> >***********************************************************************
> >*****************************
> >_______________________________________________
> >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
>
> =================================================================
>
>
>
>  Reminder: Any email that requests your login credentials or that asks you
> to click on a link could be a phishing attack.  If you have any questions
> regarding the authenticity of this email or its sender, please contact the
> IT Service Desk at 212.484.6000 or via email at ITServices at timewarner.com
>
>
>
> =================================================================
>
>
> =================================================================
> This message is the property of Time Warner Inc. and is intended only for
> the use of the
> addressee(s) and may be legally privileged and/or confidential. If the
> reader of this message
> is not the intended recipient, or the employee or agent responsible to
> deliver it to the intended
> recipient, he or she is hereby notified that any dissemination,
> distribution, printing, forwarding,
> or any method of copying of this information, and/or the taking of any
> action in reliance on
> the information herein is strictly prohibited except by the intended
> recipient or those to whom
> he or she intentionally distributes this message. If you have received
> this communication in
> error, please immediately notify the sender, and delete the original
> message and any copies
> from your computer or storage system. Thank you.
> =================================================================
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160411/6047ef26/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 6549 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160411/6047ef26/image001-0001.jpg>