[CPWG] ICANN’s Contractual Governance Regime

Tue Jul 25 15:17:11 UTC 2023

+1 Alan and JZ

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From: CPWG <cpwg-bounces at icann.org> on behalf of Alan Greenberg via CPWG <cpwg at icann.org>
Sent: 25 July 2023 04:09
To: Cheryl Langdon-Orr
Cc: CPWG
Subject: Re: [CPWG] ICANN’s Contractual Governance Regime

I too support this.

The premise behind the ICANN Bylaw wording is that ICANN should never create rules about content. but RVCs are not created by ICANN. They are a REGISTRY commitment. A commitment that they are willing to have enshrined in a contract. It is ludicrous that there could be terms in an ICANN contract that are fully legal in the relevant jurisdiction but are not enforced or enforceable. ICANN enforcing a registry commitment which relates to content is NOT ICANN regulating content - the REGISTRY is doing that (and fully within its rights). ICANN is simply ensuring that contractual terms are met.

Alan

On Mon, Jul 24, 2023 at 5:54 PM Cheryl Langdon-Orr via CPWG <cpwg at icann.org<mailto:cpwg at icann.org>> wrote:
I concur JZ

On Tue, 25 July 2023, 01:55 Jonathan Zuck via CPWG, <cpwg at icann.org<mailto:cpwg at icann.org>> wrote:
While I understand this argument, I've never completely bought it. Most of the RVCs are meant to protect consumers and include such things as only allowing second level domains to go to licensed professionals, etc. Anyone concerned about their "freedom of speech" is welcome to use another domain. There are 1,500 of them at this point. Things like "trusted notifier" arrangements are NOT enforced by ICANN, by design.
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From: CPWG <cpwg-bounces at icann.org<mailto:cpwg-bounces at icann.org>> on behalf of David Mackey via CPWG <cpwg at icann.org<mailto:cpwg at icann.org>>
Sent: Monday, July 24, 2023 8:39 AM
To: CPWG <cpwg at icann.org<mailto:cpwg at icann.org>>
Subject: [CPWG] ICANN’s Contractual Governance Regime

fyi: Sharing this blog post by Milton Mueller<https://www.internetgovernance.org/2023/06/15/the-big-question-facing-icanns-contractual-governance-regime/> regarding a discussion held at ICANN 77, because it seems relevant to the At-Large CPWG community ...

"ICANN never ceases to pose fascinating issues in global governance. At ICANN 77, held in Washington DC June 12 – 16, a dramatic debate took place about ICANN’s proper scope of authority. Some interest groups (mainly Registries and GAC) want ICANN to be empowered to enforce compliance with Registry Voluntary Commitments (RVCs), formerly known as Public Interest Commitments (PICs). Civil society groups and some Internet businesses see in the proposed change a threat to freedom of expression on the internet and an attempt to undermine ICANN’s multistakeholder policy development process.

Underlying this debate are important questions about the relationship between private contracting, multistakeholder governance, and public policy."

...

"The RVC problem is really a derivative of a more fundamental flaw in ICANN’s new TLD processes. Instead of defining clear, simple rules for nondiscriminatory awards of new TLDs, ICANN has created a bureaucratic morass of regulations and veto powers. The fate of a TLD application is not governed by any predictable rules. It is all discretionary, and the GAC in particular wants to be in a position to veto or modify applications and names that it doesn’t like.

Fortunately, Registry commitments that are designed to regulate content and services and make ICANN their enforcer are clearly violations of ICANN’s fundamental bylaws. The plot to bypass bottom up policy making process cannot succeed unless those bylaws are modified, and the modification would be so fundamental and the social gain so miniscule that it is hard to imagine it ever happening.

Never underestimate the ability of ICANN’s board, the GAC and DNS industry short-term self-interest to screw things up, however. Keep an eye on this process, and we hope this blog post helped you understand the stakes."

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