November 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] Board comments on the Mission statement
by David Post Nov. 23, 2015

Nov. 23, 2015

At 10:42 AM 11/23/2015, Greg Shatan wrote: >Clearly, this shows that this is an attempt to >rewrite ICANN's mission, rather than an attempt to avoid mission creep. >Just like 3.7.7.9 has been with us since the >beginning of (ICANN) time, the policy disputes >that underlie this attempt have been with us >since the beginning of (ICANN) time. >The Accountability effort is an inappropriate >place to try and score points in these disputes. Â >It's both good and unfortunate that this is >becoming clear -- good that it is becoming >clear, unfortunate because of the timing. I (strongly) disagree. I think that it's quite critical that we try to articulate why things like 3.7.7.9 are IN SCOPE, so that we allow ICANN to continue to do those things BUT ONLY those things. 3.7.7.9 concerns the registration and use of names. "neither the registration of the Registered Name nor the manner in which IT is directly or indirectly used infringes the legal rights of any third party ..." The "it" is important. When I registered davidpost.com, I did NOT make a promise to the registry, at ICANN's behest, that I would not do anything at the website I operate at that address that "infringes the legal rights of any third party." I might defraud buyers, or defame my political opponents, or infringe someone's copyright - none of which is of ICANN's concern. What I did promise was that my use of the davidpost.com name would not infringe the rights of any third party - that the name "davidpost.com," for instance, does not infringe someone's trademark or copyright rights. This is precisely the line we're trying to preserve. ICANN CAN regulate the names (i.e. what strings can be used as names, who gets which names) - of course, only with policies "developed through a bottom-up, consensus-based multi-stakeholder process" - but NOT what people do with the names. David >Greg > >On Mon, Nov 23, 2015 at 10:03 AM, Burr, Becky ><<mailto:Becky.Burr@neustar.biz>Becky.Burr(a)neustar.biz> wrote: >Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Â >Section 3.7.7.9 of the RAA has been in place >from the beginning of time.Â Here is the language from the 2001 RAA: > >3.7.7.9 The Registered Name Holder shall >represent that, to the best of the Registered >Name Holder's knowledge and belief, neither the >registration of the Registered Name nor the >manner in which it is directly or indirectly >used infringes the legal rights of any third party. > >Here it is in the 1999 RAA: > >7.Â g. The SLD holder shall represent that, to >the best of the SLD holder's knowledge and >belief, neither the registration of the SLD name >nor the manner in which it is directly or >indirectly used infringes the legal rights of a third party. > > >As someone who was part of the team drafting and >negotiating the 1999 RAA,Â IÂ can assure you >that the inclusion of this requirement in the >RAA was intended to be within the scope of ICANNâs Mission. >J. Beckwith Burr >Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer >1775 Pennsylvania Avenue NW, Washington D.C. 20006 >Office: ><tel:%2B1.202.533.2932>+1.202.533.2932Â Mobile: ><tel:%2B1.202.352.6367>+1.202.352.6367 / <http://www.neustar.biz>neustar.biz >From: Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca> >Date: Sunday, November 22, 2015 at 10:06 PM >To: "Silver, Bradley" ><<mailto:Bradley.Silver@timewarner.com>Bradley.Silver(a)timewarner.com>, >Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com>, >"Mueller, Milton L" <<mailto:milton@gatech.edu>milton(a)gatech.edu> >Cc: Accountability Community ><<mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org> >Subject: Re: [CCWG-ACCT] Board comments on the Mission statement >I rarely fill people's mailboxes just to do this, but in this case; >+1 >Alan > >At 22/11/2015 08:31 PM, Silver, Bradley wrote: > >>I want to echo and support GregÃ¢ââ¢s >>response below.Â MiltonÃ¢s position thathat >>an existing provision of the RAA is out of the >>scope of ICANNÃ¢â¬s mission is >>illuminating.Â I had been operating on the >>(hhopeful) presumption that what we were >>attempting to do was find a way to describe >>ICANNÃ¢s mission in a manner that reflects >>its current activitieties, and avoid drafting >>anything that could adversely impact its >>continued ability to do so while clearly >>preventing any undue expansion.Â Â If those >>who support the language in the second sentence >>are seeking a way to attack the validity or >>enforceability of existing contractual >>provisions, then the concerns of the board are >>not only well founded, they are grossly understated.Â >>Â >>From: >><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >>[ >>mailto:accountability-cross-community-bounces@icann.org] >>On Behalf Of Greg Shatan >>Sent: Sunday, November 22, 2015 3:01 AM >>To: Mueller, Milton L >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] Board comments on the Mission statement >>Â >>Milton, >>Â >>I strongly disagree that 3.7.7 is out of scope >>of ICANN's mission.Â I also don't think it's >>useless, nor is it an uncommon provision in >>many terms of service and similar >>agreements.Â 3.7.7 only asks for the >>registrant's "knowledge and belief" -- so they >>are not required to know whether they are >>infringing anywhere under any >>jurisdiction.Â They are only required to make >>reference to what they already know -- an >>entirely reasonable and ordinary requirement. >>Â >>Is it your intent that the new provision we are >>discussing places 3.7.7 out of scope, and thus >>serves as a basis for an IRP or other challenge >>seeking to nullify 3.7.7?Â Since 3.7.7 is only >>an "example," what other sections are you trying to place out of scope? >>Â >>Thanks. >>Â >>Greg >>Â >>On Sat, Nov 21, 2015 at 5:56 PM, Mueller, >>Milton L <<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: >> >> > -----Original Message----- >> > >> > See section 3.7.7 of the registrar accreditation agreement (RAA): >> > >> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource…>https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en >> >> > >> > 3.7.7.9 The Registered Name Holder shall >> represent that, to the best of the >> > Registered Name Holder's knowledge and >> belief, neither the registration of >> > the Registered Name nor the manner in which >> it is directly or indirectly used >> > infringes the legal rights of any third party. >>Bruce: this is a good example of how the RAA is >>currently out of scope. To begin with, it is a >>completely useless element of the RAA. This >>statement does not stop anyone from doing >>anything, and it does not require ICANN to >>determine whether a registrant is infringing >>someone's rights. And how is anyone supposed to >>know whether the way they use a domain >>infringes the legal rights of a third party - >>anywhere in the world, under any >>jurisdiction?Â They cannot know this until >>andÂ unless someone asserts those rights >>against them in a legal system which has >>jurisdiction and can make a legal >>determination. Or do we want ICANN to be making >>this determination? Most would agree that we do >>not. So what is the purpose, other than to >>invite ICANN to impose controls or regulations >>on virtually anything that happens on the internet? >> >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>================================================================= >>Reminder: Any email that requests your login >>credentials or that asks you to click on a link >>could be a phishing attack.Â If you have any >>questions regarding the authenticity of this >>email or its sender, please contact the IT >>Service Desk at <tel:212.484.6000>212.484.6000 >>or via email at <mailto:ITServices@timewarner.com>ITServices(a)timewarner.com >> >>================================================================= >>================================================================= >>This message is the property of Time Warner >>Inc. and is intended only for the use of the >>addressee(s) and may be legally privileged >>and/or confidential. If the reader of this message >>is not the intended recipient, or the employee >>or agent responsible to deliver it to the intended >>recipient, he or she is hereby notified that >>any dissemination, distribution, printing, forwarding, >>or any method of copying of this information, >>and/or the taking of any action in reliance on >>the information herein is strictly prohibited >>except by the intended recipient or those to whom >>he or she intentionally distributes this >>message. If you have received this communication in >>error, please immediately notify the sender, >>and delete the original message and any copies >>from your computer or storage system. Thank you. >>================================================================= >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Mission - Regulation and Contract background on the Picket Fence
by Burr, Becky Nov. 23, 2015

Nov. 23, 2015

For purposes of the discussion, I have attached a chart that sets out Registry Agreement Specification1 and Registrar Accreditation Agreement Specification 4, which describes what falls within the permissible scope of "Consensus Policy.” These specifications essentially articulate the scope of ICANN’s authority to unilaterally impose obligations on registries and registrars so long as those obligations (1) relate to a specified set of issues and (2) are developed through a bottom up process the demonstrates the proposal is supported by consensus. The document is summarized below: The specific set of issues that are “fair game” for Consensus Policy are: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar [and Registry] Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, [REGISTRARS: but including where such policies take into account use of the domain names)]; or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. The policy goes on to say that these issues include, without limitation: * principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); * prohibitions on warehousing of or speculation in domain names by registries or registrars; * reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); * maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; * procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in a TLD by a registrar losing accreditation; and * the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 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<http://www.neustar.biz>

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Comments on draft report text
by Robin Gross Nov. 23, 2015

Nov. 23, 2015

Some comments on the draft report. - Robin p. 5: Somehow in the draft, we are seeing a new definition for WS1 that seems to imply CCWG is operating on an external timeline, however, that has never been the case. We better go back to the definition that we’ve had for WS1 for the first two draft reports and all discussions up until now. I don’t know how we are seeing a new definition for WS1 for the first time at this late stage in any event. This has been the agreed definition of WS1 items in our previous reports and discussions that we should revert to: "Work Stream 1 is the CCWG-Accountability’s work on changes to ICANN’s accountability arrangements which must be in place, or committed to, prior to the IANA Stewardship Transition.” P. 5: the text about ICANN’s corporate interest should be deleted. P. 8: It should read “CCWG-Accountability external legal counsel with assistance from the ICANN legal legal team will draft final language for these revisions to the Articles….” p.10 on transparency, we should cite the specific California Code Section and the transparency rights found therein which we are trying to obtain (Section 6333). p.23: The text says individual SOAC’s “recommend” the removal of their board appointee, however they do more than “recommend” such a decision, they actually take that decision, so as drafted with the word “recommend” it is ambiguous and seems to imply SOACs don’t have the final decision. p. 33: I support the following bracketed text: “ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its mission.” p. 44: I do not support the inclusion of the following items in WS2: - consider what effect, if any this Bylaws will have on ICANN’s consideration of advice given by the GAC.” p. 54-55: We need to clarify that the two transparency listed are not the only ones we look at in WS2. We had said all along we want to instill a culture of transparency at ICANN in WS2, so only looking at the DIDP, whistle-blower policy, and govt interactions would be woefully limiting. We should say these transparency issues for WS2 “include” those items, but are not limited to them. Also we seem have let the improvements to the ombudsman’s office slip from WS2. I do not like how minority views are tacked-on at the very end of the document after all appendices, glossaries, stress tests, etc. This seems to be burying dissent in a mountain of papers that will not be read. Minority views should be an appendix on their own with the other appendixes.

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Re: [CCWG-ACCT] Board comments on the Mission statement
by Alan Greenberg Nov. 23, 2015

Nov. 23, 2015

I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: >I want to echo and support Gregâs response >below. Miltonâs position that an existing >provision of the RAA is out of the scope of >ICANNâs mission is illuminating. I had been >operating on the (hopeful) presumption that what >we were attempting to do was find a way to >describe ICANNâs mission in a manner that >reflects its current activities, and avoid >drafting anything that could adversely impact >its continued ability to do so while clearly >preventing any undue expansion. If those who >support the language in the second sentence are >seeking a way to attack the validity or >enforceability of existing contractual >provisions, then the concerns of the board are >not only well founded, they are grossly understated. > >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Greg Shatan >Sent: Sunday, November 22, 2015 3:01 AM >To: Mueller, Milton L >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] Board comments on the Mission statement > >Milton, > >I strongly disagree that 3.7.7 is out of scope >of ICANN's mission. I also don't think it's >useless, nor is it an uncommon provision in many >terms of service and similar agreements. 3.7.7 >only asks for the registrant's "knowledge and >belief" -- so they are not required to know >whether they are infringing anywhere under any >jurisdiction. They are only required to make >reference to what they already know -- an >entirely reasonable and ordinary requirement. > >Is it your intent that the new provision we are >discussing places 3.7.7 out of scope, and thus >serves as a basis for an IRP or other challenge >seeking to nullify 3.7.7? Since 3.7.7 is only >an "example," what other sections are you trying to place out of scope? > >Thanks. > >Greg > >On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton >L <<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: > > > > -----Original Message----- > > > > See section 3.7.7 of the registrar accreditation agreement (RAA): > > > <https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en>https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en > > > > 3.7.7.9 The Registered Name Holder shall represent that, to the best of the > > Registered Name Holder's knowledge and belief, neither the registration of > > the Registered Name nor the manner in which > it is directly or indirectly used > > infringes the legal rights of any third party. > >Bruce: this is a good example of how the RAA is >currently out of scope. To begin with, it is a >completely useless element of the RAA. This >statement does not stop anyone from doing >anything, and it does not require ICANN to >determine whether a registrant is infringing >someone's rights. And how is anyone supposed to >know whether the way they use a domain infringes >the legal rights of a third party - anywhere in >the world, under any jurisdiction? They cannot >know this until and unless someone asserts >those rights against them in a legal system >which has jurisdiction and can make a legal >determination. Or do we want ICANN to be making >this determination? Most would agree that we do >not. So what is the purpose, other than to >invite ICANN to impose controls or regulations >on virtually anything that happens on the internet? > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at ><mailto:ITServices@timewarner.com>ITServices(a)timewarner.com > > >================================================================= > >================================================================= >This message is the property of Time Warner Inc. >and is intended only for the use of the >addressee(s) and may be legally privileged >and/or confidential. If the reader of this message >is not the intended recipient, or the employee >or agent responsible to deliver it to the intended >recipient, he or she is hereby notified that any >dissemination, distribution, printing, forwarding, >or any method of copying of this information, >and/or the taking of any action in reliance on >the information herein is strictly prohibited >except by the intended recipient or those to whom >he or she intentionally distributes this >message. If you have received this communication in >error, please immediately notify the sender, and >delete the original message and any copies >from your computer or storage system. Thank you. >================================================================= >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Notes-Recordings-Transcript links for ST18 Meeting #4 - 23 November
by Brenda Brewer Nov. 23, 2015

Nov. 23, 2015

Hello all, The notes, recordings and transcripts for the ST18 Meeting #4 - 23 November will be available here: https://community.icann.org/x/ZsFYAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. 4th and last call of the ST18 sub-group - Mathew Weill chairing. MW - Task of the group is to report to the CCWG with options wrt ST18 discussion for inclusion in the 3rd draft report of the CCWG which is to be published on November 30th Currently the two options are: - The European GAC Member's proposal which is a clarification of the Denmark/Finn Petersen proposal - The text that was published in the 2nd draft of the CCWG. There were several variations/amendments on these published over the weekend from Brett Schaeffer, Phil Corwin and others. Discussion of the requirement for a clear rationale for a GAC recommendation. MW - Rationale requirement is generally agreed. Clarity should similarly be a requirement. Discussion of the ST-18 European a GAC member's proposal BSchaefer,RMeijer, SDelBianco,TRickert, JCancio, PIvoSilva, T Rickert alternate proposal: The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any Governmental Advisory Committee advice, which enjoys broad support of Governmental Advisory Committee members in the absence of significant objection, may only be rejected by a majority vote of the Board. In this case, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Temperature check for Euro GAC proposal = 9 for, 7 against Temperature check for the alternate TRickert proposal above 10 support, 3 against MW - Results of discussions will be presented to the CCWG. Propose to present to the CCWG the original 2nd Draft poroposal language, the European GAC proposal and the TRickert proposal to demonstrate progress. 2/3 to object from the Board was seen as an issue. Documents * DOC: <https://community.icann.org/download/attachments/56148326/ST%2018%20Europea… osal.docx?version=1&modificationDate=1448286527000&api=v2> ST 18 European GAC Members Proposal.docx | PDF: <https://community.icann.org/download/attachments/56148326/ST%2018%20Europea… osal.pdf?version=1&modificationDate=1448286550000&api=v2> ST 18 European GAC Members Proposal.pdf * DOC: <https://community.icann.org/download/attachments/56148326/Thomas%20Rickert.… ionDate=1448292052000&api=v2> Thomas Rickert Proposal | PDF: <https://community.icann.org/download/attachments/56148326/Thomas%20Rickert.… onDate=1448292070000&api=v2> Thomas Rickert Proposal

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Notes-Recordings-Transcript links for ST18 Meeting #3 - 20 November
by Brenda Brewer Nov. 23, 2015

Nov. 23, 2015

Hello all, The notes, recordings and transcripts for the ST18 Meeting #3 - 20 November will be available here: https://community.icann.org/x/Fb9YAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Recap of last call: discussions regarding the potential for a definition of consensus which would include percentages or accounts within the GAC Paper from Denmark was recirculated with comments, one being on rejection threshold for Board in case it acts in a manner that is inconsistent with GAC advice. Initial proposed approach was 2;3. Variant of a staggered approach was suggested: GAC advice would be supported by a consensus as currently defined in the Operating Principle 47, and could only be rejected by a 2/3 majority of the Board if it was consensus advice. If not according to that definition, a simple majority would be required from the Board. Discussion: * Sentence in the original proposal from Denmark after the end of this first paragraph in red, which stated that in this context each advisory committee has a right to determine its particular definition of consensus, is missing. After this sentence, we would include the text that appears in the second red paragraph which indicates borders, limits to that definition of consensus. --> No intent to contradict the statement that each advisory committee has the right to determine definition of consensus * Footnote does not clarify what consensus is. Preference for keeping existing text in Bylaws and focus on changes, if any are adopted. * Do not give narrow definitions of consensus. If we fix it in Bylaws, it will be difficult to change it after that. * Consider minimum conditions for considering anything greater than a majority vote by the Board in considering GAC advice: 1) It would have to be what we termed GAC consensus advice; 2) It would have to be consistent with ICANN's accountability and transparency; ) There would need to be a written rationale for advice. Statements of requirement of rationale would be necessary; 4) Would need certification that the GAC advice does not contravene any national or international law or treaty. In terms of the IPC's concerns about moving upward from the majority approval in exchange for basically a commitment to the status quo these would be as the minimum conditions at this point ICG would be prepared to accept. Moving above the majority for any reason still raises great concern, the commitment to the status quo on one side should require nothing more than commitment to the status quo on the other side. * It is hard to endorse a compromise without knowing if GAC is going to or is not going to participate in the community mechanism or not. GAC would have an unacceptable increase in it authority if it votes to participate in the community mechanism and has the ability to offer advice in a preferential fashion to the Board. Co-Chairs should reach out to the various constituencies to identify whether they are going to fully participate or not. The only recourse for the community to oppose GAC advice and oppose by a majority of the Board is to exercise community powers. If the GAC is going to be participating in the community mechanism that makes reaching various thresholds to exercise those powers much, much more difficult. It is a critical part of our equation. * Against general premise of considering the GAC as a danger or as a sort of problem for the community. Change the approach. The 2/3 rule is linked to a commitment of consensus. All the points that Greg made in his email and which stem from the IPR constituency back in 2014 are being addressed. * There is a distance between the definition of consensus that is highlighted - that was highlighted by Greg as the current definition of Operating Principles 47 and the definition that was provided in the footnote by Julia and Denmark. * We need language that is stronger - Denmark language is ambiguous. If you want to raise the ante to 2/3, something more has to be required of the GAC in reaching advice that merits a 2/3 consideration * We can't move forward on a proposal until we agree that consensus is absence of formal objection. * A 2/3 majority might have a very high symbolic impact on the GAC's role. But if the 2/3 is important to bridge the gap why not keep it for the instances where GAC advice is unanimous. We need to find a solution for that. * It would be important to accept that without any kind of consultation process or a majority plus one is opposed seems like that advice has been somewhat forced on the Board in such a way rejection is not rejection but only a due deference process. If a super majority, but not 2/3, of the board wished to reject the GAC advice, it would not be rejected but it would be accepted without any consultation process even though most of the Board was against it. * We could reestablish the balance. For instance: if 1/3 of Board is against following GAC advice, the Board can request a consultation. * The mutually agreeable solution process is triggered when the GAC advice is supported by consensus but without mentioning anything about how this consensus is assessed. Finn Petersen's proposed language: "The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC advice approved by a GAC consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds (2/3) of the Board. Any advice approved by the GAC with objections from a very small minority of GAC members, but falling short of consensus, may be rejected by a majority vote of the Board. In both instances, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Governmental Advisory Committee should ensure that THE REST advice to the Board is clear." Discussion: * This goes in the right direction. * The Board would require to meet a higher threshold to reject GAC advice given that the current thresholds of consensus and the Board's current threshold to reject GAC advice would be applied to GAC advice with a lower threshold of consensus. * We would need to know what is the timeframe in order to be able to look into this very carefully because after all as you all know the GAC called for flexibility, for autonomy of advisory committees in refining their definition of consensus. * Approach is promising but needs wordsmithing. Suggestion to drop the very small minority language and go to any non-consensus advice approved by the GAC or something similar. Concerned that in the future a GAC might decide to initiate its own advice independent of any ongoing ICANN process on -- regarding a public policy matter and that would have the potential to what the GAC in effect initiate a form of a policy development process outside of the normal GNSO process. This language has elements of compromise. * Concern that the obligation of the board, to try and reach out to the GAC and trying to (face) in a timely efficient manner to find a mutually acceptable solution should only be the case on consensus device and not on non-consensus device and that if the Board rejects non-consensus devices up to the GAC to negotiate amongst itself its own members and then trying to reach a resolution to find a consensus and only in that case would the GAC have to negotiate with the Board if the advice is rejected. * We have agreement on each and every advisory committee ensures that the advice provided is clear and reflects the consensus view of the committee. * Second threshold is the same threshold as what's included in Denmark's original proposal. That threshold was intended to trigger two-thirds of the Board and the mutually accepted solution. * Important for members to go back to their constituencies and weigh the support with this new text before we move forward. The Board should be put in a position of negotiating between various GAC members. It should be up to the GAC to negotiate internally, find a consensus position and if the Board still had an objection to that advice then it would enter into negotiations with the GAC to try and find a mutually acceptable solution. Follow-up call to held on Monday at 14:00 UTC

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Re: [CCWG-ACCT] Board comments on the Mission statement
by David Post Nov. 23, 2015

Nov. 23, 2015

Bradley I'm a little confused by your suggestion that some of us are trying to push an existing provision of the RAA out of scope; that seems to me exactly what you're doing. You read 3.7.7.9's reference to "the manner in which the Registered name is directly or indirectly used" to cover "infringing uses on the website to which the domain points." So if I'm violating the rights of some third party by the manner in which I operate my website, you regard that as a "use" of the name. In fact, you say "If that's not at least an 'indirect' use, I don't know what is." The current proposal language says "ICANN shall not impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internets unique identifiers" It seems to me that under your interpretation, this clause must mean that 3.7.7.9 is out of scope, no? if operation of my website is a "use of the domain name," this says that ICANN can't impose any regulation on that operation - doesn't it? David At 10:51 AM 11/23/2015, Silver, Bradley wrote: >David, > >Thatâs an overly narrow reading of RAA 3.7.7.9 >Â - its not only that the registration of the >Registered Name infringes or its âdirect >useâ, but also that the manner in which is >indirectly is used.Â I canât see how the >âindirectâ use of the domain cannot also be >attributed to infringing uses on the website to >which the domain points. Â If thatâs not at >least an âindirectâ use, I donât know what >is. Â Â While I agree with your conclusion, I >donât agree with the reasoning, and I expect >there are others (like Milton) who would like to >see the clear meaning of the language of 3.7.7.9 >changed through the application of the âno regulationâ sentence.Â > >Bradley > >From: David Post [mailto:david.g.post@gmail.com] >Sent: Monday, November 23, 2015 10:37 AM >To: Burr, Becky >Cc: Alan Greenberg; Silver, Bradley; Greg >Shatan; Mueller, Milton L; Accountability Cross Community >Subject: Re: [CCWG-ACCT] Board comments on the Mission statement > >At 10:03 AM 11/23/2015, Burr, Becky wrote: > > >Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? > >No, I don't think this was out of scope, because >it concerns the "registration" of the name and >the manner in which THE NAME is used. 3.7.7.9 >does not say, in my opnion, that the registrant >has to promise that it is not doing anything at >a website that is infringing; the promise is >that the name is not being used in an infringing manner. > >D > >At 10:03 AM 11/23/2015, Burr, Becky wrote: > > >Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? > >Section 3.7.7.9 of the RAA has been in place >from the beginning of time. Here is the language from the 2001 RAA: >3.7.7.9 The Registered Name Holder shall >represent that, to the best of the Registered >Name Holder's knowledge and belief, neither the >registration of the Registered Name nor the >manner in which it is directly or indirectly >used infringes the legal rights of any third party. >Here it is in the 1999 RAA: >7. g. The SLD holder shall represent that, to >the best of the SLD holder's knowledge and >belief, neither the registration of the SLD name >nor the manner in which it is directly or >indirectly used infringes the legal rights of a third party. > >As someone who was part of the team drafting and >negotiating the 1999 RAA, I can assure you that >the inclusion of this requirement in the RAA was >intended to be within the scope of ICANNÃ¢s Mission. > > >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 >/ <http://www.neustar.biz>neustar.biz > >From: Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca > >Date: Sunday, November 22, 2015 at 10:06 PM >To: "Silver, Bradley" ><<mailto:Bradley.Silver@timewarner.com> >Bradley.Silver(a)timewarner.com>, Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com > >, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton(a)gatech.edu> >Cc: Accountability Community ><<mailto:accountability-cross-community@icann.org> >accountability-cross-community(a)icann.org> >Subject: Re: [CCWG-ACCT] Board comments on the Mission statement > >I rarely fill people's mailboxes just to do this, but in this case; > >+1 > >Alan > > >At 22/11/2015 08:31 PM, Silver, Bradley wrote: > > >I want to echo and support GregÃÂ¢s >resposposponse below. MiltonÃÂ¢s position >that an en existinting provision of the RAA is >out of the scope of ICANNÃÂ¢Ã¢Ã¢Â¢s mission >is illuminating. sp; I had been operating on the >(hopeful) presumption that what we were >attempting to do was find a way to describe >ICANNÃÂ¢s missionion in a manner that >refleflects its current activities, and avoid >drafting anything that could adversely impact >its continued ability to do so while clearly >preventing any undue expansion. If those who >support the language in the second sentence are >seeking a way to attack the validity or >enforceability of existing contractual >provisions, then the concerns of the board are >not only well founded, they are grossly understated. > >From: ><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >[ >mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Greg Shatan >Sent: Sunday, November 22, 2015 3:01 AM >To: Mueller, Milton L >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] Board comments on the Mission statement > >Milton, > >I strongly disagree that 3.7.7 is out of scope >of ICANN's mission. I also don't think it's >useless, nor is it an uncommon provision in many >terms of service and similar agreements. 3.7.7 >only asks for the registrant's "knowledge and >belief" -- so they are not required to know >whether they are infringing anywhere under any >jurisdiction. They are only required to make >reference to what they already know -- an >entirely reasonable and ordinary requirement. > >Is it your intent that the new provision we are >discussing places 3.7.7 out of scope, and thus >serves as a basis for an IRP or other challenge >seeking to nullify 3.7.7? Since 3.7.7 is only >an "example," what other sections are you trying to place out of scope? > >Thanks. > >Greg > >On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton >L <<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: > > > > -----Original Message----- > > > > See section 3.7.7 of the registrar accreditation agreement (RAA): > > > <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource…>https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en > > > > > 3.7.7.9 The Registered Name Holder shall represent that, to the best of the > > Registered Name Holder's knowledge and belief, neither the registration of > > the Registered Name nor the manner in which > it is directly or indirectly used > > infringes the legal rights of any third party. > >Bruce: this is a good example of how the RAA is >currently out of scope. To begin with, it is a >completely useless element of the RAA. This >statement does not stop anyone from doing >anything, and it does not require ICANN to >determine whether a registrant is infringing >someone's rights. And how is anyone supposed to >know whether the way they use a domain infringes >the legal rights of a third party - anywhere in >the world, under any jurisdiction? They cannot >know this until and unless someone asserts >those rights against them in a legal system >which has jurisdiction and can make a legal >determination. Or do we want ICANN to be making >this determination? Most would agree that we do >not. So what is the purpose, other than to >invite ICANN to impose controls or regulations >on virtually anything that happens on the internet? > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at ><mailto:ITServices@timewarner.com>ITServices(a)timewarner.com > > >================================================================= > >================================================================= >This message is the property of Time Warner Inc. >and is intended only for the use of the >addressee(s) and may be legally privileged >and/or confidential. If the reader of this message >is not the intended recipient, or the employee >or agent responsible to deliver it to the intended >recipient, he or she is hereby notified that any >dissemination, distribution, printing, forwarding, >or any method of copying of this information, >and/or the taking of any action in reliance on >the information herein is strictly prohibited >except by the intended recipient or those to whom >he or she intentionally distributes this >message. If you have received this communication in >error, please immediately notify the sender, and >delete the original message and any copies >from your computer or storage system. Thank you. >================================================================= >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) ><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post >book (Jefferson's >Moose) ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n > >music ><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic >publications >etc. <http://www.davidpost.com />http://www.davidpost.com >******************************* > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at ><mailto:ITServices@timewarner.com>ITServices(a)timewarner.com > > >================================================================= > >=================================================================This >message is the property of Time Warner Inc. and >is intended only for the use of theaddressee(s) >and may be legally privileged and/or >confidential. If the reader of this messageis >not the intended recipient, or the employee or >agent responsible to deliver it to the >intendedrecipient, he or she is hereby notified >that any dissemination, distribution, printing, >forwarding,or any method of copying of this >information, and/or the taking of any action in >reliance onthe information herein is strictly >prohibited except by the intended recipient or >those to whomhe or she intentionally distributes >this message. If you have received this >communication inerror, please immediately notify >the sender, and delete the original message and >any copiesfrom your computer or storage system. >Thank you.================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Re: [CCWG-ACCT] Board comments on the Mission statement
by David Post Nov. 23, 2015

Nov. 23, 2015

At 05:41 PM 11/22/2015, Bruce Tonkin wrote: >Hello David, > >DP: The UDRP is a good example of how this line works, for >me. ICANN does have the power to set up a process to resolve >disputes over domain names, because the outcomes of those disputes >necessarily and inherently affect the content of the DNS databases >directly. ICANN does not have the power to set up a process to >resolve disputes over consumer fraud complaints, because the >outcomes of those disputes do not affect the content of the DNS databases. > >BT: That sounds reasonable - although the decisions of UDPR do >relate to how the domain name is used, which inevitably involves >considering the content of websites or emails that make use of that >domain name. e.g. using "apple" as an example. I can have a >domain name like "apple.expert" that refers to an expert on the >topic of Apples as a fruit - but couldn't use that domain name >without approval for being an expert on Apple computers. DP I think I might disagree with you about that, but I don't think that matters for the current question. I don't actually think that Apple gets some kind of a "veto" over my attempt to register the domain "apple.expert." But we don't have to decide that question here; what I think we DO agree on is that the question is indeed within ICANN's "picket fence" - that ICANN has the power to make that decision (or to set up a process like the UDRP to make that decision), because that dispute (like the disputes handled by the UDRP) is a dispute over the name itself, and how names are allocated, and it necessarily affects the content of the DNS databases directly; >BT So the dispute does relate to the domain name, but resolving >that dispute requires an understanding of how that name is used. DP Correct. I'd say it a little more forcefully: the dispute doesn't just relate to the domain name, it is about the domain name. >BT A counter example Is suppose could be a name like >"computer.expert". A website referenced by that domain name could >potentially use trademarks of Apple, but that would be a dispute >about the content of that site, and not the domain name. The main >requirement would be that the contact information for the domain >name is accurate, so that Apple could take the appropriate legal action. DP We agree on that, too. Whether someone can or cannot use the Apple trademark on a site at computer.expert (or at davidpost.com, for that matter) is NOT a question about the name "computer.expert" itself, or about how the name "computer.expert" is to be allocated; the exact same question about the use of Apple's trademark can arise at davidpost.com, or at icann.org ... That is a question that concerns what the stringholder can do once the string has been allocated to him/her, and that is NOT within the scope of ICANN's power. David >Regards, >Bruce Tonkin > > > > > > > > >David > > > > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post >book (Jefferson's Moose) http://tinyurl.com/c327w2n >music http://tinyurl.com/davidpostmusic publications >etc. http://www.davidpost.com >******************************* > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Transparent communication between ccwg leaders and ICANN staff
by farzaneh badii Nov. 23, 2015

Nov. 23, 2015

I was going through the old ATRT2 archives and noticed that they had a publicly archived mailing list for all coordination activities between the leaders of the ATRT2 and ICANN staff. Given we at the CCWG have committed to making ICANN transparent, perhaps we should be the first to implement this and make all communications between our leadership and ICANN staff available likewise. To avoid big surprises and behind the scenes actions, and unnecessary pressure on ICANN staff, I would like to ask for a separate mailing list for communication with the staff. All the communications from chairs and working parties leaders to the ICANN staff should be channeled through that open mailing list transparently. -- Farzaneh

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Notes-Recordings-Transcript links for WP1 Meeting | 23 November
by Brenda Brewer Nov. 23, 2015

Nov. 23, 2015

Hello all, The notes, recordings and transcripts for the WP-1 Meeting #32 on 23 November will be available here: https://community.icann.org/x/XsJYAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Link to docs: <https://community.icann.org/x/eLRYAw> https://community.icann.org/x/eLRYAw On participation of SO/ACs need positive confirmation. "agree to participate" must be "take action to participate" GAC participation would not be permanent but on a case by case --> Every SO/AC has right not to express a view. Binary choice is whether listed in Bylaws as SO/AC that is entitled to exercise view If each SO/AC can decide on a case-by-case basis, will the escalation model reflect the change in the number of supporting votes needed for enforcement? E.g. if only 3 SO/ACs are participating. --> No - threshold is designed to evidence wide community support. If only two ACs supporting removing director, power would not have effect. Unclear how to change Article of Incorporation to include Empowered Community. We need to decide on this --> This will be discusssed on call on Tuesday. Lawyers will be asked as well. Community forum; in-person or virtually? Concerns about virtually and 15 days. We are incorporating AOC into Bylaws - not reviews (rec. 9) - core proposal, not annex Annex 4 - details missing in removal of entire Board

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