[CCWG-ACCT] Implementation flaw in Mission section
Gregory, Holly
holly.gregory at sidley.com
Mon Apr 11 23:20:19 UTC 2016
Given the continued debate and lack of agreement regarding any of our many efforts to propose language, consider reverting to the precise language of the Final Report:
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.
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<mailto:holly.gregory at sidley.com>
From: Malcolm Hutty [mailto:malcolm at linx.net]
Sent: Monday, April 11, 2016 6:45 PM
To: Silver, Bradley
Cc: James Gannon; Gregory, Holly; Mueller, Milton L; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
Sent from my iDevice; please excuse terseness and typos.
On 11 Apr 2016, at 23:04, Silver, Bradley <Bradley.Silver at timewarner.com<mailto: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.
Bradley,
If we're going to stick closely to the text of the approved Report, and I agree with you that we should, we should remember what that text 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"
Interestingly, the word "imposing" does not appear. Nor does any direct reference to terms and conditions. Looking at this sentence, do you see any reason (if we need to avoid the word "regulate") why "control or constrain" could not be substituted? Is that not the essence of regulation, to control or constrain an outcome or activity?
Malcolm.
-----Original Message-----
From: accountability-cross-community-bounces at icann.org<mailto: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<mailto:accountability-cross-community-bounces at icann.org> on behalf of Gregory, Holly" <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> on behalf of holly.gregory at sidley.com<mailto: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<mailto:holly.gregory at sidley.com>
-----Original Message-----
From: accountability-cross-community-bounces at icann.org<mailto: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>
[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<mailto:Bradley.Silver at timewarner.com>>; Accountability
Cross Community <accountability-cross-community at icann.org<mailto: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>
[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
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