[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Burr, Becky Becky.Burr at neustar.biz
Tue Jan 19 23:39:42 UTC 2016

I don’t see how this is ICANN deciding what constitutes a bank.  An
applicant proposed a definition - you need a license that has the
following characteristics - and ICANN accepted the applicant’s commitment
to limit registration to entities possessing the necessary credentials.  I
suspect, on that basis, that a lot of financial institutions did not
oppose the application on those grounds.  Enforcement in this case means
only that ICANN can require the applicant to do what it promised to do,
and does not involve regulation of banks.

J. Beckwith Burr 
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz

On 1/19/16, 5:02 PM, "Mueller, Milton L" <milton at gatech.edu> wrote:

>It's unusual, but I find myself surprised at, and in strong disagreement
>with, Malcolm Hutty's points below. I am wondering whether Malcolm has
>abandoned his commitment to a limited mission for ICANN, or whether he
>does not understand that he is proposing to make ICANN into an
>international regulator of online banking.
>Banking is not a "community" it is an industry. While it is a highly
>regulated industry, not all entities that use the word Bank in a
>prominent way are banks in the financial sense or subject to banking
>regulation, or are in any danger of deceiving people about their status
>as a repository for their money. Think of Food Bank, Blood Bank, etc.
>Look at Malcolm's language:
>> And "banks" seem a perfectly coherent community, such that it is
>> reasonable for ICANN to seek to create a gTLD for the exclusive use of
>What? "ICANN" should not be seeking to create any gTLDs; _applicants_
>should. If a registry proposes to run a .BANK tld and their business plan
>hinges on establishing its credible identity as a name space for
>(financial) banks, they have every incentive to maintain the reputation
>of the space and the consistency and integrity of registrations within
>the name space. There is no need for ICANN to become a bank regulator.
>If a registry ends up running ANY tld in a way that facilitates or
>contributes to trademark violations and fraud, there are all kinds of
>existing regulations and laws to respond to that. You don't need to use
>registry contracts to enforce sectoral regulations on a tld string.
>But this is the devil's bargain you get into with ICANN enforcing
>commitments that equate a TLD string's semantics with an industry and its
>regulatory commitments.
>If we put ICANN in charge of determining what a bank is and what policy a
>registry for banks should have, we have blown away mission limitations.
>The idea that ICANN should be deciding what constitutes a bank, making
>policies based on a globalized decision as to what associations with the
>word bank are allowed or not allowed, and enforcing registry contracts
>designed to determine who is eligible to call themselves a bank, it is
>dangerous and all the more objectionable because it is so pointless.
>> -----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, January 18, 2016 9:29 AM
>> To: Burr, Becky <Becky.Burr at neustar.biz>; 'Accountability Community'
>> <accountability-cross-community at icann.org>
>> Subject: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement
>> discussion
>> On 15/01/2016 22:53, Burr, Becky wrote:
>> > I think this is a very useful discussion getting to the heart of the
>> > matter, so I would really like to encourage others to participate.
>> Thank you.
>> > Ok, but can ICANN enforce the part of the contract that says you can¹t
>> > register in the domain unless you are licensed by an appropriate
>> > authority?  I understand that having rules for allocating new TLDs is
>> > reasonably necessary to ensure the stability and security of the DNS,
>> > but I don¹t understand how enforcing that the registry licensing
>> > requirement is (in and of itself) UNLESS you say that the delegation
>> > (community
>> > preference) was made on the basis of that commitment, and enforcing
>> > the commitments underlying the delegation decision is an inherent
>> > requirement of the policy itself. I¹m grasping for a principle here.
>> To me, creating "community TLDs", that is, TLDs intended for the use of
>> particular community, seems a clear case of things that are entirely
>> for ICANN to do as part of managing the root.
>> And "banks" seem a perfectly coherent community, such that it is
>> reasonable for ICANN to seek to create a gTLD for the exclusive use of
>> Now it is proposed that domains in .bank should only be available to
>> with a state-issued banking license. How should we interpret this?
>> You ask:
>> > I understand that having rules for allocating new TLDs is reasonably
>> > necessary to ensure the stability and security of the DNS, but I don¹t
>> > understand how enforcing that the registry licensing requirement is
>> > (in and of itself)
>> I don't think it's specifically about stability and security (except in
>>the sense
>> that some coordination is needed when new domains are created). But nor
>> do I consider it an attempt by ICANN to regulate the behaviour of banks.
>> What ICANN is doing, in the case of "only licensed banks", is creating
>>a rule
>> for recognising what is a bank, and distinguishing it from a non-bank.
>> need for some such rule is a necessary collorary of the notion of
>>having a
>> community TLD at all; if you can't find authority within the Mission
>>for having
>> such a rule, there is no authority to create community gTLDs at all,
>> mind the narrower questioning of whether licensing is a permissible
>> requirement.
>> I'm going to assume that authority for ICAN Nto create new gTLDs, to
>> a purpose for them, and to have serving a defined community as one of
>> potential purposes, can be found in the general statement that:
>> "ICANN's Mission is to coordinate the development and implementation of
>> policies: For which uniform or coordinated resolution is reasonably
>> to facilitate the openness, interoperability, resilience, security
>> stability [...]"
>> If not, we've a separate flaw we need to fix.
>> So if ICANN is to make .bank only available to banks, it needs to ask
>> what is a "bank"? Is "A bank is an entity with a banking license?" an
>> acceptable definition for ICANN to adopt? I think it is.
>> For most people, a bank is any entity that has a banking license. If
>>you don't
>> have a banking license, you simply cannot be a bank: Honest Joe's
>> Streetcorner Money Lending is not a real bank, and nobody is likely to
>> confuse Joe for a bank, irrespective of licensing. Could you set up a
>> bank without a license? Thanks to government regulation, this is
>> in practice whether or not you believe it conceptually valid:
>> if you try, you'll be closed down overnight. So there's no such thing
>>as an
>> unlicensed bank.
>> Now, from time to time some banks (as in any field) do things that they
>> not supposed to do. In doing some of these things, they may risk having
>> banking license removed. But mostly, they will just get fined when
>> not delicensed (which means, closed down). Suppose ICANN wrote those
>> rules separately into the rules for .bank, and made its own
>>adjudication as to
>> whether a particular bank had breached them, and took their .bank domain
>> away even though national authorities had not taken away the banking
>> license. I think this would be overreaching by ICANN, of the sort we
>>ought to
>> constrain. Suppose instead that the
>> (relevant) government decided to punish serious misbehaviour with
>> of the only applicable banking license. That would effectively close
>>the bank
>> down: were ICANN also to require the cancellation of the relevant domain
>> within .bank in such circumstances, that would not seem to me to be an
>> overreach.
>> This analysis shows that in the case of .bank using "is it licensed?"
>>is a
>> reasonable rule of recognising for whether someone is indeed a bank.
>> It does NOT mean licensing - especially non-government forms of
>> accreditation - will automatically be a reasonable rule for recognising
>> members of different communities with differing characteristics.
>> Consider, for example, an application for .cloud, a domain intended to
>> used by providers of cloud services, including consumer and enterprise
>> storage hosting. If that Registry suggested that all registrants in
>>.cloud must
>> be licensed by "Greg Shatan's Copyright Compliance Squad - Guaranteed
>> Infringement Free", I don't think that's merely a rule for recognising
>>for what
>> constitutes cloud storage; on the contrary, by writing Greg Shatan CCS
>> the registry ICANN would be writing a set of copyright compliance
>> requirements for end registrants at one step removed. So not identify
>> members of the community, but simply trying to control them.
>> Of course, this doesn't stop the Registry concerned from requiring all
>> registrants in their domain to sign up with Greg, but it's not ICANN's
>>job to
>> adopt such a requirement.
>> For this reason I don't think "licensed entities only" is a
>> card for ICANN. Whether it is a legitimate rule depends on the context.
>> highly regulated sectors, it's likely to be reasonable to say "If you
>>don't have a
>> license to practice law/medicine/banking we don't consider you to be a
>> attorney/doctor of medicine/bank, and for that reason not eligible to
>> in .attorney/.doctor/.bank". In other cases, there is a much more
>> argument that you can be a legitimate member of the community without
>> being licensed by the licensing authority ICANN has selected.
>> .GAY springs to mind: I can't think of any legitimate excuse for ICANN
>> appoint an authority to "ensure registrants are legitimate members of
>> Gay Community".
>> result/applicationstatus/applicationdetails/444
>> Anyway, I hope that answers your question. One final aside: I have been
>> speaking here about what I understand to be within and outside the
>>scope of
>> ICANN's Mission, not just what is prohibited by the "prohibition of
>> of services" clause. As that clause is narrowly drawn, some of the
>>things I
>> have described would not be specifically prohibited by that clause, but
>>still (in
>> my view) fall outside ICANN's Mission.
>> Malcolm.
>> --
>>             Malcolm Hutty | tel: +44 20 7645 3523
>>    Head of Public Affairs | Read the LINX Public Affairs blog  London
>> Exchange | 
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