[Gnso-newgtld-wg] Voluntary PICs/RVCs
McGrady, Paul D.
PMcGrady at taftlaw.com
Fri Dec 11 14:44:23 UTC 2020
Sorry for any redundancy, but I see there are at least 2 different threads now on PICs and RVCs and those are complicated by a maelstrom of “redline” emails so it is not at all clear who is following which strings (and even if we are able to sort out all the strings!). So, for clarity, I thought I should repost my comments on the other PICs/RVCs string here, directly above Kathy’s original comments.
Well, clearly these are brand new ideas from Kathy that have never been discussed by the working group or put out for public comment. We have no time to consider the merits (if any) of such sweeping changes to the entire ICANN ecosystem with exactly one substantive call left. Additionally, the sweeping changes are unnecessary as even a casual review of the Bylaws indicate no issues. Below is an informal position developed through kicking this around on a recent IPC call (it can’t be considered a formal position, since the sweeping, last minute ideas were introduced with no time left in the PDP timeline to respond to them formally). We hope this is helpful.
1. ICANN can enter into and enforce PICS in service of its Mission. 1.1 (d) B (iv) “(iv) ICANN shall have the ability to negotiate, enter into and enforce agreements, including public interest commitments, with any party in service of its Mission.”
2. ICANN is not “imposing” rules and restrictions on parties by acceptance of PICs and RVCs. RVCs don’t constitute “regulation” of any type, much less content regulation. (refer to history of Accountability Workstream 1 ). The ByLaws provision re “imposing” rules and restrictions in 1.1 (c) states as follows: . (c) ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a). For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority. This language makes it clear that ICANN does not intend to act as a government regulator. It does not prohibit adoption and enforcement of PICs.
The ByLaws clearly state that all previously-adopted PICs are in force and may be renewed going forward. See 1.1 (d) which states as follows:
(d) For the avoidance of doubt and notwithstanding the foregoing:
(i) the foregoing prohibitions are not intended to limit ICANN’s authority or
ability to adopt or implement policies or procedures that take into
account the use of domain names as natural-language identifiers;
(ii) Notwithstanding any provision of the Bylaws to the contrary, the terms
and conditions of the documents listed in subsections (A) through (C)
below, and ICANN’s performance of its obligations or duties
thereunder, may not be challenged by any party in any proceeding
against, or process involving, ICANN (including a request for
reconsideration or an independent review process pursuant to Article
4) on the basis that such terms and conditions conflict with, or are in
violation of, ICANN’s Mission or otherwise exceed the scope of
ICANN’s authority or powers pursuant to these Bylaws (“Bylaws”) or
ICANN’s Articles of Incorporation (“Articles of Incorporation”):
(1) all registry agreements and registrar accreditation
agreements between ICANN and registry operators or
registrars in force on [1 October 2016]1, including, in
each case, any terms or conditions therein that are
not contained in the underlying form of registry
agreement and registrar accreditation agreement;
(2) any registry agreement or registrar accreditation
agreement not encompassed by (1) above to the
extent its terms do not vary materially from the form of
registry agreement or registrar accreditation
agreement that existed on [1 October 2016];
(B)any renewals of agreements described in subsection (A) pursuant
to their terms and conditions for renewal;
The fact that even voluntary PICS may be renewed going forward confirms without a doubt that they are not outside of ICANN’s power under the new ByLaws. Thus, adoption and enforcement of voluntary PICs (RVCs) is not ultra vires. Unfortunately the recently proposed “guardrails” around the adoption of voluntary PICs and Registry Voluntary commitments would in fact make ICANN a regulator of content, making ICANN the judge of a Registry’s Human Rights compliance and making ICANN (rather than the Registry) the arbiter of whether a particular RVC addresses content. In other words, the guardrails proposed increase the danger that ICANN would be acting as a content regulator.
3. No revision to the ByLaws is necessary for ICANN to accept and approve the PICs and RVC policy developed by the WG. The ICANN ByLaws clearly state in the Mission section that the PDP process acts as a “guiding light” in the development of policy that relates to ICANN’s Mission. Current ByLaws Section 1.1. (a) states:
(i) Coordinates the allocation and assignment of names in the root zone
of the Domain Name System (“DNS”) and coordinates the
development and implementation of policies concerning the
registration of second-level domain names in generic top-level
domains (“gTLDs”). In this role, ICANN’s scope is to coordinate the
development and implementation of policies:
• For which uniform or coordinated resolution is reasonably
necessary to facilitate the openness, interoperability, resilience,
security and/or stability of the DNS including, with respect to
gTLD registrars and registries, policies in the areas described in
Annex G-1 and Annex G-2; and
• That are developed through a bottom-up consensus-based
multistakeholder process and designed to ensure the stable and
secure operation of the Internet’s unique names systems.
During its deliberations, the Sub Pro Working Group majority implicitly determined that the recommended system of PICs and RVCs is reasonably necessary to facilitate the openness, resilience, and stability of the DNS. The policies developed are perfectly aligned with the scope of the Mission and do NOT constitute governmental content “regulation”. In fact, PICs and RVCs are not about content at all. They are about resolving potential disputes that might otherwise lead to litigation and/or a chilling effect of preventing the launch of a TLD. This means that the system of PICs and RVCs will serve ICANN’s Mission to preserve and support security, stability, and resiliency. Furthermore, all voluntary PICs and RVCs will be open for public comment and super transparent. ICANN has the power and even a duty to enforce PICs that shore up security, resiliency, and stability as determined via PDP recommendations unless such recommendations are voted down by a 2/3 majority of the Board. In addition, if RVCs are not entered into and enforced within the ICANN system, transparency is defeated because back room deals can still be made as a matter of private contract law. PICs and RVCs keep these commitments out in the open.
4. If ICANN is concerned about the burden of enforcement, it can refer RVCs to an independent panel that ICANN does not pay and cannot override, just like UDRP. The RVC-DRP can be created in a way to allow ICANN to step back from any ICANN.org determination re RVC compliance.
Paul D. McGrady, Partner
Intellectual Property/Trademark/Domains/Privacy/Social Media
Direct: 312.836.4094 | Office Ext: 34094
Taft Office: Chicago
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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Kathy Kleiman
Sent: Tuesday, December 8, 2020 8:38 AM
To: gnso-newgtld-wg at icann.org
Subject: [Gnso-newgtld-wg] Voluntary PICs/RVCs
On a larger note, some of us have been working on principles for Voluntary PICs/RVCs in keeping with the 2016 Bylaws, responsive to concerns raised by the ICANN Board, and following our informative conversation with Becky and Avri, our Board liaisons.
We re-propose the three “Guardrails for Voluntary PICs” and add a fourth one for our valuable, formative Human Rights Core Value.
Four Guardrails for Voluntary Public Interest Commitments/RVCs entered into by ICANN and New gTLD Registries
1. Voluntary PICs/RVCs can only address issues with domain names themselves, including eligibility criteria consistent with point 2 below—not the contents of websites or apps that use domain names;
2. Commitments need to be consistent with the human rights core value established in the ICANN Bylaws;
3. PICs/RVCs should not give registries unbounded discretion to suspend domain names; and
4. PICs/RVCs should not be used to create new policies that didn’t come through ICANN processes.
Please note that the Guardrails below are designed to include all GAC-negotiated settlements (original purpose of voluntary PICs), and we would be happy to insert a statement if that needs to be set out even more clearly.
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