November 2015 - Accountability-Cross-Community

regulatory/mission issue WS2
by Burr, Becky Nov. 8, 2015

Nov. 8, 2015

All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1). Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read: The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission 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; and • That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. 2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators]. 3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs. 4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force. ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. 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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Reflections on human rights protection and promotion by ICANN
by Eric Brunner-Williams Nov. 8, 2015

Nov. 8, 2015

Colleagues, Some will recall that when the Government of Egypt, then going through crisis, directed the ISPs within its jurisdiction to withdraw their respective prefix announcements, affecting a series of changes to the global routing database communicated via BGP4, which took Egypt "off-line", that the Corporation did something. It announced that the one remaining authoritative server for the .eg zone which remained globally accessible would, if its data "expired" before the Government of Egypt directed the ISPs within its jurisdiction to re-announce their respective prefix announcements, again affecting changes to the global routing database communicated via BGP4, putting Egypt back "on-line", refresh the zone date of the one remaining authoritative server for the .eg zone, so that the pre-existing data for the entire .eg zone would not be discarded. In effect, the Corporation guaranteed the continuous existence of zone data and correctness of resolution, independent of the express intent of the (then) Government of Egypt, because ... And there is where we have the possibility of writing in the human rights rational for keeping the .eg data from expiry. It could be the rights of Egyptians to continuity and correctness of resolution withing the .eg zone, or the global right to continuity and correctness of resolution of any zone, including the .eg zone, or possibly even further reaching, conditions upon the abilities of state actors to access the global routing database. Next, at the Santa Monica meeting, which I was able to attend in person, I pointed out that we (Amadeu, myself, ... Vint, ...) had no idea in 2005 that a "cultural and linguistic application" by a Catalan NGO would trigger a vast amount of text generation in Catalan in the namespace delegated to the Catalan NGO. I said something along the lines of "access to namespaces is something the Corporation has direct control over", with the implication that the use of local language, and so the infrastructure which reasonably facilitates that use, is a human right, protected and promoted by the Corporation. And here too is where we have the possibility of writing in the human rights rational for the IDN program, with all its warts and bells and whistles. Are there other ways to approach human rights protection and promotion by ICANN? It seems likely to me, but these are things we've done, the Corporation has done with the full knowledge and consent of the Community, and are rather central to the mission of the Corporation -- continuous correct routing and resolution, and identifiers in languages other than US English. Eric Brunner-Williams Eugene, Oregon

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Re: [CCWG-ACCT] regulatory/mission issue WS2
by Steve DelBianco Nov. 6, 2015

Nov. 6, 2015

Becky — may get a rise but certainly no riot. If I understand it, you propose we eliminate the sentence that created the concern over ICANN not being able to enforce contracts: Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. With that sentence gone, we no longer need this one: ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. And we are left with a tight mission statement that should prevent future adventures like NetMundial: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission Makes sense to me. From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr(a)neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, November 6, 2015 at 12:30 PM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] regulatory/mission issue WS2 All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1). Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read: The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission 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; and •That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. 2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators]. 3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs. 4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force. ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. 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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WP2 Issues from last night's call
by Burr, Becky Nov. 6, 2015

Nov. 6, 2015

I’ve attached a revised deck trying to lay out our conclusions from last night. 1. We concluded to resolve the support/coordinate problem by eliminating the chapeau in the Mission Statement. See Slide 1 and the side-by-side document 2. Kavouss strongly urged us to modify the language of the regulatory preclusion. I have taken a shot at that in purple in the side-by-side document 3. Greg Shatan proposed a modification to the contracting language also reflected in purple on slide 2 4. We agreed to put transparency points 1 and 2 in WS1 and to address points 3 and 4 as part of WS2. Becky J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer

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Re: [CCWG-ACCT] Fwd: Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts
by Dr Eberhard W Lisse Nov. 5, 2015

Nov. 5, 2015

David, nice to hear that you think all is hunky dory. But why are having a CCWG Accountability then, in the first place? Have you ever been in a developing country during a civil war yourself? el -- Sent from Dr Lisse's iPad mini > -------- Forwarded Message -------- > Subject: Re: [CCWG-ACCT] Fwd: Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts > Date: Thu, 5 Nov 2015 19:50:25 +0000 > From: David Conrad <david.conrad(a)icann.org> > To: Nigel Roberts <nigel(a)channelisles.net>, accountability-cross-community(a)icann.org <accountability-cross-community(a)icann.org> > > Nigel, > > This isn't a portmanteau, it is a fantasy that cannot occur. > > 1) in the event there is contention between the existing and proposed new > TLD manager, ICANN follows (and always has) the "Postel principle" of > referring the contending parties back to resolve their differences and to > return with a consensus proposal, maintaining the status quo. > > 2) Section 3.1 of RFC 1591 clearly and explicitly requires the > administrator of a zone to be in the country of the TLD. > > 3) ICANN would not, under its current bylaws, be able to support the use > of a 12 month old copy of the registry database because it would obviously > have direct, negative impact to the security and stability of the DNS. > > 4) Section 3.4 of RFC 1591 would disallow the transfer due to the > requirement that "significantly interested parties in the domain should > agree that the designated manager is the appropriate party." > > Any one of these would result in IANA refusing to allow the transfer to > move forward. > > Regards, > -drc > >> Here's an example. >> >> ICANN takes away the management of a ccTLD from a ccTLD manager in a >> third world country based on false representations from a third party. >> >> The responsible person at the manager has little English and is in any >> event under the pressure of threatened harm to himself or his staff if >> he objects. ICANN locates a 12 month old copy of the registry database >> and passes it to the new manager who starts operations out of North >> America, selling the domains for profit to California startups. >> >> (NB: This is a portmanteau stitched together from various situations, so >> is entirely hypothetical for our purposes). >> >> ICANN has on the face of things, infringed at least on two fundamental >> rights here - intellectual property, and the right to a fair hearing. >> >> Your proposed wording could easily be used to eliminate any consequences >> from this. [...]

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Objections
by Thomas Rickert Nov. 5, 2015

Nov. 5, 2015

All, as you know, the CCWG has discussed and refined its responses to some open issues during its call #65 and finalized its recommendations to several questions after numerous substantial discussions. With this e-mail, we would like to acknowledge the objections that were sent to the list by Robin and Eberhard. There will surely be the opportunity to have dissenting opinions mentioned in the report or minority statements attached to the report as with the 2nd report. Kind regards, León Sanchez Mathieu Weill Thomas Rickert

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IRP drafting process
by Thomas Rickert Nov. 5, 2015

Nov. 5, 2015

Dear all, in the context of the Independent Review Process, wehereby wish to certify the request for our legal counselto begin drafting the required documents. As you will remember, we had discussed to accompany the drafting of the required paperwork (Bylaws, Rules of Procedure and the Selection Process for Panelists) with implementation oversight to ensure the documents accurately reflect our group’s recommendations. We recommend to have an Implementation Oversight Team (IOT) established by the time we receive the firstwork products from our lawyers. The IOT would review the outcome produced by our legal counsel and report back to the CCWG-Accountability. We recommend looking for 5-7 volunteers who are experts in this field. Given the scope of this group we would also encourage the Ombudsman and a representative of ICANN’s Legal Department to join the volunteers in this effort. In the event that more than 7 expressions of interest are submitted, we will have to discuss objective selection criteria and determine a selection process with the CCWG. Should you be interested in bringing your unique expertise to this group, please send a note to acct-staff by November 25 – 23:59 UTC with a short summary ofyour relevant expertise. Thank you, León, Mathieu and Thomas

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Fwd: Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts
by Nigel Roberts Nov. 5, 2015

Nov. 5, 2015

Reposting to the WG as requested . . . -------- Original Message -------- Subject: Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts Date: Thu, 05 Nov 2015 14:39:48 +0000 From: Nigel Roberts <nigel(a)channelisles.net> Organization: CI Domain Registry To: wp4(a)icann.org Here's an example. ICANN takes away the management of a ccTLD from a ccTLD manager in a third world country based on false representations from a third party. The responsible person at the manager has little English and is in any event under the pressure of threatened harm to himself or his staff if he objects. ICANN locates a 12 month old copy of the registry database and passes it to the new manager who starts operations out of North America, selling the domains for profit to California startups. (NB: This is a portmanteau stitched together from various situations, so is entirely hypothetical for our purposes). ICANN has on the face of things, infringed at least on two fundamental rights here - intellectual property, and the right to a fair hearing. Your proposed wording could easily be used to eliminate any consequences from this. On 05/11/15 14:26, Nigel Roberts wrote: > I'm fine with the first sentence. > > It's the subsequent qualifiers that could easily be interpreted to mean > ICANN can ignore it in practice that seem problematic to me. > > But no doubt others are better at expressing this than I. > > On 05/11/15 14:15, Greg Shatan wrote: >> Our very first sentence says that ICANN will respect Human RIghts. Still >> not seeing the issue. >> >> On Thursday, November 5, 2015, Nigel Roberts <nigel(a)channelisles.net >> <mailto:nigel@channelisles.net>> wrote: >> >> The description for the role of private entities is "not at all, >> unless committed to by the private entity". So there's a major >> misunderstanding, as there is in the role played by ICANN as regards >> ccTLDs. >> >> Here's a better formulation (from a US private corporation, no less) >> >> "ExxonMobil actively promotes respect for human rights and is >> committed to complying with all applicable laws and regulations. " >> >> On 05/11/15 13:44, Greg Shatan wrote: >> >> Nigel, >> >> Can you explain your issue? I can't discern it from your >> statement. >> >> If it's with the "protect or enforce" language, it's my >> understanding >> that those roles are played by governments, while the descriptor >> for the >> role of private entities is "respect." I think our document >> makes that >> clear, but if it could be clearer, your suggestions are >> appreciated. >> >> Thanks! >> >> Greg >> >> On Thursday, November 5, 2015, Nigel Roberts >> <nigel(a)channelisles.net >> <mailto:nigel@channelisles.net>> wrote: >> >> I have to say that I am rather dissatisfied with this camel. >> >> I see it translates as >> >> "Within its mission and in its operations, ICANN will >> respect >> internationally recognized human rights. But really it >> won't." >> >> Thus qualifer, which will eviscerate any commitment >> whatsoever to >> basic standards of respect for human rights in a privatised >> ICANN, >> means that ICANN is not worthy of transition until a >> meaningful >> committment is produced. >> >> >> On 03/11/15 13:58, McAuley, David wrote: >> >> I also want to thank Tatiana, Greg, Niels, Leon, and >> Matthew for >> this. >> >> I had a long-planned family event and did not see this >> final version >> until our CCWG call(1am my time) and so I probably >> surprised you by >> asking for a tweak. Sorry to take you by surprise like >> that. >> >> Here is the paragraph I sought a tweak on: >> >> /Within its mission and in its operations, ICANN will >> respect >> internationally recognized human rights. This >> commitment does >> not in any >> way create an obligation for ICANN, or any entity >> having a >> relationship >> with ICANN, to protect or enforce human rights. In >> particular, >> this does >> not create any obligation for ICANN to respond to or >> consider any >> complaint, request or demand seeking the enforcement of >> human >> rights by >> ICANN./ >> >> // >> >> My concern was that the phrase */or any entity having a >> relationship >> with ICANN* / in the second sentence did not appear in >> the third >> before >> the words “/to respond”/. >> >> Yes, that would add to the “clunkiness” of the wording >> but the >> concern >> (the usual suspect) is that complainants lawyers will >> pick that >> difference apart to the great detriment of those >> having a >> relationship >> with ICANN. And that is why I ask for the change – and >> am glad our >> outside counsel will have a go at this in the end. >> >> Again, many thanks all. >> >> David McAuley >> >> *From:*wp4-bounces@icann.org >> [mailto:wp4-bounces@icann.org] *On >> Behalf >> Of *León Felipe Sánchez Ambía >> *Sent:* Monday, November 02, 2015 8:51 PM >> *To:* Greg Shatan >> *Cc:* acct-staff(a)icann.org; wp4(a)icann.org >> *Subject:* Re: [Wp4] WP4 Deliverable: Elaborating an >> ICANN >> Commitment to >> Human RIghts >> >> Dear Greg, >> >> Thank you, Tatiana, Niels, Matthew and David for this >> new >> document. I >> think it's a great document that, from my perspective, >> appropriately >> reflects the work done in our WP4 and suggests concrete >> solutions and >> steps forward. >> >> Will wait for others to comment but I would say it's ok >> to be >> delivered >> and shared with the larger CCWG. >> >> Thanks to all in the WP. You have all made an >> outstanding job! >> >> Kind regards , >> >> León >> >> >> El 02/11/2015, a las 7:36 p.m., Greg Shatan >> <gregshatanipc(a)gmail.com >> <mailto:gregshatanipc@gmail.com>> escribió: >> >> All: >> >> Attached are Word and PDF versions of a proposed >> final >> draft of the >> deliverable of WP4, which is intended to become >> part of the >> next >> Report of the CCWG. >> >> Niels and Tatiana and Matt went through the >> document after >> our call >> and edited and resolved the proposed changes in the >> document. I >> followed with further edits and formatting work. >> I believe >> that all >> of us sought to be neutral /rapporteurs/ carrying >> out the >> sense of >> today's call and the work of our group. >> >> I felt that we needed a section which specifically >> set out the >> process and results of our discussions on >> refining the >> language of >> the Bylaw, rather than leaving this to our >> recommendations >> in the >> final section of the document. Therefore, I >> took the >> liberty of >> creating such a section, and hope that you will >> find that this >> section reflects our work. >> >> This document also remains available on Google >> Drive. >> >> I look forward to any comments. >> >> Best regards, >> >> Greg >> >> <Elaborating an ICANN Commitment to Human >> Rights.docx> >> >> <Elaborating an ICANN Commitment to Human >> Rights.pdf> >> >> _______________________________________________ >> Wp4 mailing list >> Wp4(a)icann.org <mailto:Wp4@icann.org> >> https://mm.icann.org/mailman/listinfo/wp4 >> >> >> >> _______________________________________________ >> Wp4 mailing list >> Wp4(a)icann.org >> https://mm.icann.org/mailman/listinfo/wp4 >> >> _______________________________________________ >> Wp4 mailing list >> Wp4(a)icann.org >> https://mm.icann.org/mailman/listinfo/wp4 >> > _______________________________________________ > Wp4 mailing list > Wp4(a)icann.org > https://mm.icann.org/mailman/listinfo/wp4 _______________________________________________ Wp4 mailing list Wp4(a)icann.org https://mm.icann.org/mailman/listinfo/wp4

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Re: [CCWG-ACCT] [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts
by Dr Eberhard W Lisse Nov. 5, 2015

Nov. 5, 2015

I have redirected this to the main list. I fully agree with Nigel's measured statement. Not acceptable. el On 2015-11-05 13:13, Nigel Roberts wrote: > I have to say that I am rather dissatisfied with this camel. > > I see it translates as > > "Within its mission and in its operations, ICANN will respect > internationally recognized human rights. But really it won't." > > Thus qualifer, which will eviscerate any commitment whatsoever to > basic standards of respect for human rights in a privatised ICANN, > means that ICANN is not worthy of transition until a meaningful > committment is produced. > > > On 03/11/15 13:58, McAuley, David wrote: >> I also want to thank Tatiana, Greg, Niels, Leon, and Matthew for >> this. >> >> I had a long-planned family event and did not see this final >> version until our CCWG call(1am my time) and so I probably >> surprised you by asking for a tweak. Sorry to take you by >> surprise like that. >> >> Here is the paragraph I sought a tweak on: >> >> /Within its mission and in its operations, ICANN will respect >> internationally recognized human rights. This commitment does >> not in any way create an obligation for ICANN, or any entity >> having a relationship with ICANN, to protect or enforce human >> rights. In particular, this does not create any obligation for >> ICANN to respond to or consider any complaint, request or demand >> seeking the enforcement of human rights by ICANN./ >> >> // >> >> My concern was that the phrase */or any entity having a >> relationship with ICANN* / in the second sentence did not appear >> in the third before the words “/to respond”/. >> >> Yes, that would add to the “clunkiness” of the wording but >> the concern (the usual suspect) is that complainants lawyers will >> pick that difference apart to the great detriment of those having >> a relationship with ICANN. And that is why I ask for the change >> – and am glad our outside counsel will have a go at this in the >> end. >> >> Again, many thanks all. >> >> David McAuley >> >> *From:*wp4-bounces@icann.org [mailto:wp4-bounces@icann.org] *On Behalf >> Of *León Felipe Sánchez Ambía >> *Sent:* Monday, November 02, 2015 8:51 PM >> *To:* Greg Shatan >> *Cc:* acct-staff(a)icann.org; wp4(a)icann.org >> *Subject:* Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to >> Human RIghts >> >> Dear Greg, >> >> Thank you, Tatiana, Niels, Matthew and David for this new >> document. I think it's a great document that, from my >> perspective, appropriately reflects the work done in our WP4 and >> suggests concrete solutions and steps forward. >> >> Will wait for others to comment but I would say it's ok to be >> delivered and shared with the larger CCWG. >> >> Thanks to all in the WP. You have all made an outstanding job! >> >> Kind regards , >> >> León >> >> >> El 02/11/2015, a las 7:36 p.m., Greg Shatan <gregshatanipc(a)gmail.com >> <mailto:gregshatanipc@gmail.com>> escribió: >> >> All: >> >> Attached are Word and PDF versions of a proposed final draft >> of the deliverable of WP4, which is intended to become part >> of the next Report of the CCWG. >> >> Niels and Tatiana and Matt went through the document after >> our call and edited and resolved the proposed changes in the >> document. I followed with further edits and formatting work. >> I believe that all of us sought to be neutral /rapporteurs/ >> carrying out the sense of today's call and the work of our >> group. >> >> I felt that we needed a section which specifically set out >> the process and results of our discussions on refining the >> language of the Bylaw, rather than leaving this to our >> recommendations in the final section of the document. >> Therefore, I took the liberty of creating such a section, and >> hope that you will find that this section reflects our work. >> >> This document also remains available on Google Drive. >> >> I look forward to any comments. >> >> Best regards, >> >> Greg >> >> <Elaborating an ICANN Commitment to Human Rights.docx> >> >> <Elaborating an ICANN Commitment to Human Rights.pdf> [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Re: [CCWG-ACCT] WP2 Issues from last night's call
by Burr, Becky Nov. 5, 2015

Nov. 5, 2015

Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver(a)timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met(a)msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm(a)linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg(a)mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs(a)anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab(a)iab.org<mailto:iab@iab.org>" <iab(a)iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they? Bradley Silver Chief Intellectual PropertyCounsel | Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869 | F: 212 658 9293 [cid:image004.png@01D11648.738D46F0] From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab(a)iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "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)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION 1. Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 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 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, 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. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. 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); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. 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 aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. 2. Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. 3. Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met(a)msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm(a)linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg(a)mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr(a)neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs(a)anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab(a)iab.org<mailto:iab@iab.org>" <iab(a)iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab(a)iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote: > In the regulatory section, I would still like to see language that > explicitly says that the unique identifiers themselves are deemed to not > be "content". Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_…> London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> ================================================================= 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. 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