[CCWG-ACCT] Implementation flaw in Mission section

Tue Apr 12 05:44:18 UTC 2016

Agree, no idea why this was a concern initially as the final report text
seem quite straightforward.

Regards

Sent from my LG G4
Kindly excuse brevity and typos
On 12 Apr 2016 00:20, "Gregory, Holly" <holly.gregory at sidley.com> wrote:

> 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
>
>
>
> *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>
> 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
> <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
> <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
> <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
> <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
>
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