December 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] [Acct-Staff] Two Questions on Annex 9
by Hillary Jett Dec. 7, 2015

Dec. 7, 2015

Hi Holly, Greg, Thank you for pointing these out, we will flag them to the proofreader. As mentioned in the timeline and next steps email sent by León on 19 November (attached), the CCWG-Accountability does have a professional proofreader/editor going through the document to ensure that any minor details are fixed and addressed as the group finalizes the proposal moving forward. Thanks, Hillary -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org From: <acct-staff-bounces(a)icann.org> on behalf of "Gregory, Holly" <holly.gregory(a)sidley.com> Date: Monday, December 7, 2015 at 2:27 PM To: Greg Shatan <gregshatanipc(a)gmail.com> Cc: ACCT-Staff <acct-staff(a)icann.org>, "Rosemary E. Fei" <rfei(a)adlercolvin.com>, CCWG-Accountability <accountability-cross-community(a)icann.org> Subject: Re: [Acct-Staff] [CCWG-ACCT] Two Questions on Annex 9 In a document this size and with so many moving pieces there are bound to be some glitches. I think these are minor in nature, but it does underscore the value in using this time to have someone go through and do a thorough proof read to identify anything that needs to be fixed for the next draft.

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FW: Expression of Interest for IOT-IRP for CCWG-Accountability
by Brenda Brewer Dec. 7, 2015

Dec. 7, 2015

Dear all, Forwarding this Expression of Interest to the full list for the record on behalf of Greg Shatan. Best, Brenda ____________________________________________________________________________________________________________________________ Please find below my Expression of Interest for the above. I am a U.S.-trained attorney, graduating from Columbia Law School in New York in 1986, where I was Editor-in-Chief of the Columbia-VLA Journal of Law & the Arts and a Harlan Fiske Stone Scholar. I have been in private practice since then, largely in major general practice firms, namely Weil Gotshal, Morgan Lewis, Winston & Strawn and Reed Smith. Although my practice focuses on intellectual property and technology transactions and protection, I have broad experience with litigation, administrative litigation, arbitration, mediation and other forms of dispute resolution (both formal and informal) in both IP/Tech and non-IP/Tech matters. I have been involved with ICANN matters since 2004 and joined the IPC in 2007. I have been particularly active in the last several years, serving on several Working Groups as well as the GNSO's Standing Committee on Improvements (which is charged with improving the working rules of the GNSO Council). I have been heavily involved in the CWG-Stewardship, where I was the member officially charged with representing the GNSO's Commercial Stakeholder Group, and the CCWG-Accountability. I have served as the President of the Intellectual Property Constituency since February 2015. I look forward to serving on the IOT-IRP. Best regards, Greg Shatan Gregory S. Shatan * Abelman Frayne & Schwab Partner | IP | Technology | Media | Internet 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan(a)lawabel.com <mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc(a)gmail.com <mailto:gregshatanipc@gmail.com> www.lawabel.com <http://www.lawabel.com/>

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AGENDA - Call #71
by Alice Jansen Dec. 7, 2015

Dec. 7, 2015

Dear all, In anticipation of your call#71<https://community.icann.org/pages/viewpage.action?pageId=56148225> - Tuesday, 8 October from 19:00-21:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>), please find below a proposed agenda: 1. Welcome, roll-call, SOI 2. Webinars and Board call debrief 3. IRP Subgroup 4. Timeline 5. AOB Link to Adobe Connect: https://icann.adobeconnect.com/accountability/ Thanks Best regards Alice

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Issues with Providing Public Comments on CCWG-Accountability Proposal
by Greg Shatan Dec. 6, 2015

Dec. 6, 2015

All: Two issues with public comments. The first is primarily logistical. The second is more fundamental. Both are frustrating. First, the "SurveyMonkey" link for the survey to respond to the Proposal is not working. The link is https://www.surveymonkey.com/r/ccwg-acct-draftproposal and the response is This webpage is not available ERR_CONNECTION_TIMED_OUT In any event, it can be difficult to see all of a survey in advance so that responses can be drafted, reviewed and revised appropriately before being entered into the survey. Can a PDF or other version of the entire survey be circulated here and posted on the public comment page as soon as humanly possible, please? Second, the public comment page at https://www.icann.org/public-comments/draft-ccwg-accountability-proposal-20… has the following statement: The six Chartering Organizations for the CCWG-Accountability are asked to indicate their support for the recommendations in this proposal. At the same time, public participants not involved with a Chartering Organization are invited to comment on the proposal. This implies that the public comment period is limited to "public participants not involved with a Chartering Organization." Does this mean that, for example, the Intellectual Property Constituency is somehow barred from public comment? Does this also mean that our members, e.g., INTA, are also barred from public comment (since they are "involved" with the GNSO through membership in the IPC)? Does this also mean that members of our members, e.g., "Company X" (a member of INTA), is barred from public comment (since they are "involved" with the GNSO through INTA's membership in the IPC)? How about members of the GAC and the ccNSO? Are all the members barred from commenting as well? If any of the above are not barred from public comment, will their public comments somehow be discounted because they are involved with a Chartering Organization, thus not "invited" to comment, and also assumed to have another outlet for their comments? At the very least, it is confusing and off-putting. At worst, it could have the effect of chasing away potential commenters due to their "involvement" with a Chartering Organization. Clarification would be most appreciated. Greg

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There's no suitable topic for this one
by Roelof Meijer Dec. 4, 2015

Dec. 4, 2015

I am starting to be ashamed to be part of this group Off line bilateral apologies would indicate presence of intellect, civility, ability to respect and feelings Roelof From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Edward Morris <egmorris1(a)toast.net<mailto:egmorris1@toast.net>> Reply-To: "egmorris1(a)toast.net<mailto:egmorris1@toast.net>" <egmorris1(a)toast.net<mailto:egmorris1@toast.net>> Date: donderdag 3 december 2015 14:47 To: Kavouss Arasteh <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>>, Eberhard Lisse <el(a)lisse.na<mailto:el@lisse.na>> Cc: "directors(a)omadhina.net<mailto:directors@omadhina.net>" <directors(a)omadhina.net<mailto:directors@omadhina.net>>, "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Issues with Providing Public Comments on CCWG-Accountability Proposal Kavouss, I had no intention of slighting your country. I have great respect for the people and culture of Persia, one of the world's great civilisations. Ms. Gross comment was simply a critique of survey design. It had nothing to do with any so called "anti GAC" sentiment and your initial post itself was personally critical of "few persons" and certainly Ms. Gross herself. I honestly do not know how elections are conducted in your fine country, and although I certainly would not have phrased things as I did had I known you would take offence, I could not fathom how anyone could object to Ms. Gross attempt to correct a ballot malapropos that she believes defaults to a certain answer. I assumed your objection was cultural in nature. My apologies to you if it were not. As to your response, which referenced the murder of innocent people in criticising other countries, As I sit here in Paris working to prepare for concerts this weekend following the recent tragedy in this city, hopeful my body will not be riddled with bullet holes by Tuesday as industry colleagues of mine recently were, I take deep offence. I have sent an inquiry to His Excellency Javad Kachoueian, Ambassador of Iran to my country of Ireland, referencing your post and asking whether that is an argumentative technique approved of by his government. Iff any response is received, I shall share it with you off-list. I commend you, Kavouss, on your exceptional contributions to the CCWG over the past year. I look forward to working with you on substantive matters going forward and, again, apologies for any personal slight you felt as as result of my post. That certainly was not my intent. Cordially, Edward Morris ________________________________ From: "Kavouss Arasteh" <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>> Sent: Thursday, December 3, 2015 12:00 PM To: "el(a)lisse.NA<mailto:el@lisse.NA>" <el(a)lisse.NA<mailto:el@lisse.NA>> Cc: "directors(a)omadhina.net<mailto:directors@omadhina.net>" <directors(a)omadhina.net<mailto:directors@omadhina.net>>, "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Issues with Providing Public Comments on CCWG-Accountability Proposal Dear Sir, I strongly object to your comments inappropriately referring to my country which I am proud of it.Mire strongly I categorically reject your illusion to "democratic ". If democratic country is the one that very often the people open fire to innocent people then I am happy that those thing never happened in my country. Moreover, we are dealing with issues in personal capacity without representing a given country. I do not understand your anti Iranian feelings. I respect all countries and their people . Pls refrain to refer to any country in CCWG process as we do not represent a country but a community. Sir, you de passed the limit if politeness, code of conduct and all international standards. I invite you to calm down, observe ICANN code of conducts Courtesy, friendship, and respect others . This us the last time that tolerate and if you and any other CCWG MEMBERS refer to my country then you will see the consequence of such inappropriate reference. Mr. Arasteh Sent from my iPhone > On 3 Dec 2015, at 09:07, Dr Eberhard W Lisse <el(a)lisse.NA<mailto:el@lisse.NA>> wrote: > > My, My, My, are we getting testy. > > I thought Sadowsky's resentment was predetermined, but it seems the heat > is turning up. > > el > > >> On 2015-12-03 10:01, Edward Morris wrote: >> Hi Kavrous, >> >> I don't know how you do things in Iran, but in the democratic countries >> I've lived in we try to avoid ballots that default to predetermined >> choices. That whole integrity of the ballot thing. >> >> Thanks, Robin, for identifying and pointing out this software flaw. >> Hopefully it is something staff and / or our fine leadership team will >> be able to address in short order. >> >> Best, >> >> Ed Morris >> >> >> >> On Dec 3, 2015, at 7:56 AM, Kavouss Arasteh <kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com> >> <mailto:kavouss.arasteh@gmail.com>> wrote: >> >>> It is strange that the same person always comments on ST18. >>> There is an anti GAC sentiments in few persons members if CCWG >>> It is a pity to gave such reactions >>> Regards >>> Kavoysd >>> >>> Sent from my iPhone > [...] > -- > Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) > el(a)lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) > PO Box 8421 \ / > Bachbrecht, Namibia ;____/ > _______________________________________________ > 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 _______________________________________________ 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

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presentation webinars
by Roelof Meijer Dec. 4, 2015

Dec. 4, 2015

@staff, co-chairs and fellow members: : excellent presentation and additional explanations given during yesterday's webinars. Could you provide us with a link to the presentation doc (in pdf)? Not sure where I can find it in our work space Cheers, Roelof From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Hillary Jett <hillary.jett(a)icann.org<mailto:hillary.jett@icann.org>> Date: maandag 30 november 2015 03:10 To: CCWG-Accountability <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Public Comment Launch + Posting of Core Proposal/Appendices Dear all, Thank you again for your constructive edits. We are pleased to announce that the Core proposal and Annexes were finalized in light of your input and are now available on your wiki at https://community.icann.org/display/acctcrosscomm/Third+Draft+Report. In line with our timeline determined in Dublin, the Third Proposal will be posted for public comment tomorrow. A survey will be provided to frame input received on our conclusions. We invite you to refer to the feedback tracking spreadsheet<https://docs.google.com/spreadsheets/d/1Qjpbcl6M-W_9FJXahZCPdIIMz0YJI_PMfys…> and Sidley comments for an overview of edits that were integrated. Please note that the documents posted on the wiki are now closed for edits. Any amendments you may have will be considered for the final iteration of our document post the public comment period. As a reminder the Public Comment Period on our Third Proposal all close on December 21 and staff summary of input received is scheduled to be delivered on December 24. Best regards, Mathieu, Thomas, Leon -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org<mailto:hillary.jett@icann.org>

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Board plans for considering the 3rd draft report
by Bruce Tonkin Dec. 4, 2015

Dec. 4, 2015

Hello All, For information, the Board is planning two information calls to discuss the CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations released on 30 Nov. The first of these calls with be on Friday 4 Dec at 21:00 UTC. The second call will be next week on Thursday 10 Dec. We are expecting to get comments to the CCWG before the close of the public comment period. Regards, Bruce Tonkin

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Let's keep the good spirit
by León Felipe Sánchez Ambía Dec. 4, 2015

Dec. 4, 2015

Dear all, As we approach the end of our first working phase it has become evident that frictions are arising from time to time. We are almost there. One of the characteristics in our group’s work has been cordiality and friendliness. We strongly encourage all to keep this good spirit specially in this final mile. We would also like to encourage everyone to abide by the expected standards of behavior https://www.icann.org/resources/pages/expected-standards-2012-05-15-en Let’s keep the good spirit in our group. Best regards, Thomas, Mathieu and Leon

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IRP implementation oversight team
by Brenda Brewer Dec. 3, 2015

Dec. 3, 2015

Hello all, The following people have volunteered to be on the Implementation Oversight Team (IOT); Name Region Becky Burr North America Chris Disspain Asia/Asia Pacific David McAuley North America David Post North America Greg Shatan North America Malcolm Hutty Europe Robin Gross North America Thank you! Kind regards, Brenda From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Thomas Rickert Sent: Thursday, November 05, 2015 11:30 AM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] IRP drafting process 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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Re: [CCWG-ACCT] Minority statements inclusion in report
by David Post Dec. 2, 2015

Dec. 2, 2015

But in all of this discussion, nobody has answered the question I asked several times and will ask again: if the "grandfathering" of the existing agreements does NOT mean what I think it could mean - a way for ICANN to assert that we are authorizing it to control, through registry-registrar and registrar-registrant contracts, the power to revoke domains based upon conduct or content in a manner inconsistent with the Mission Statement limitations - WHAT DOES IT MEAN? Why has that language been included in the Report, and what is it intended to accomplish?? David At 10:10 PM 11/30/2015, Silver, Bradley wrote: >I disagree completely that the grandfathering of >the provisions of the RAA and RA would >automatically also grandfather any action that >ICANN might take to enforce such agreements. >ICANN's mission is defined first and foremost in >the positive - and the bylaws begin from the >proposition that anything ICANN does must be in >conformity with that. The existing language says >as much. There is a difference between >provisions relating to illegal activity, and the >regulation of content, but given your motivation >to accomplish "a belated overturning of an abuse >of ICANN's power", I don't think I can convince you of that distinction. > >________________________________________ >From: David Post [david.g.post(a)gmail.com] >Sent: Monday, November 30, 2015 7:04 PM >To: Silver, Bradley >Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community >Subject: RE: [CCWG-ACCT] Minority statements inclusion in report > >At 06:03 PM 11/30/2015, Silver, Bradley wrote: >David, > >I am having some trouble understanding your >examples below.Â Is your concern with the >grandfathering of the RAA that it would give >ICANN total freedom in deciding how to respond >to enforcing provisions like 3.18 even such >enforcement was clearly not consistent with its stated mission? > >Yes, that is a very, very serious concern. I >don't know if I'd say it gives ICANN "total >freedom", but close to it. If we're >grandfathering in the agreements, then ICANN's >actions to enforce the terms of the agreements >could be seen as having been "grandfathered in" >as well, and - as Becky's defamation example, >and my fraud example, show - that would >encompass many things that we would all agree (I >think) are OUTSIDE the Mission. > > Or do you believe that to the extent any > enforcement by ICANN of provisions like 3.18 > that touch on illegal activity that implicates > âcontentâ would take such a provision > outside the mission?Â Â If itâs the latter, > then it appears you are attempting to achieve a > retrospective amendment of the RA and RAA by > redeffining âillegal activityâ or > âactivity contrary to applicable lawâ to > specifically exclude any activity which relates > to the content associated with the Registered Name. Â Â > >Yes, I believe this as well. I thought we had >widespread agreement on that. To the extent >enforcement by ICANN of provisions like 3.18 >touch on illegal activity that implicates >content is outside the mission. The Proposal >clearly says: "ICANNs Mission does not include >the regulation of services that use the Domain >Name System or the regulation of the content >these services carry or provide." If >enforcement of the the provision (again, like >the defamation/fraud examples) touches on >"illegal activity that implicates or relates to >content, I do not believe that ICANN can impose >obligations (directly or indirectly) on domain >name holders with respect to that content. The >RAA ad the RA appear to allow them to do that - >which is why we need to clarify that they're not "grandfathered" in. > >It's funny, because a few hours ago you wrote: > >BS: I cannot imagine how anyone could force >ICANN to interpret and enforce 3.18 or any other >provision in a manner that doesnt comport with >ICANNâs mission, particularly since we have >language that says: ICANN shall act strictly in >accordance with, and only as reasonably appropriate to achieve its Mission > >You couldn't imagine doing that - but that's >exactly what you're now, no? You seem to be >saying that ICANN may, through provisions like >3.18, deprive name holders of their registered >names if their illegal activity implicates >content - even though we have language that >says, clearly (I thought), that ICANN may not regulate content. > >This is precisely what I am concerned with, and >what I would hope we're all concerned >with: Using the existence of the >(grandfathered) RA/RAA to allow ICANN to >regulate content. You are convincing me that >this is what you intend with the "grandfather" >language. If I'm wrong about that, I'd be >interested to know how I'm wrong and, as I asked >earlier, what you think the "grandfather" language accomplishes. > >I don't think I'm proposing a "retrospective >amendment" of the RA and the RAA - more like a >belated overturning of an abuse of ICANN's monopoly power. > >I believe we need to insist on a Mission >Statement that would negate any use of ICANN's >monopoly power to impose an obligation on >registrars to revoke domains based on >allegations of illegal content. Far from >persuading me that my reading of the grandfather >in" language is "absurd," you are persuading me >that it is precisely what you (ad perhaps >others) have in mind - which illustrates the need for clarification. > >David > >From: >accountability-cross-community-bounces(a)icann.org >[ >mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of David Post >Sent: Monday, November 30, 2015 5:30 PM >To: Burr, Becky >Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas >Rickert; Accountability Cross Community >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >At 01:55 PM 11/30/2015, Burr, Becky wrote: > >First, we discussed this on several calls (3 or 4), including the last. >Second, on a more substantive note, it is >completely absurd to suggest that grandfathering >the language of existing contracts permits ICANN >to enforce any contract term in any way it likes >and to claim the protection of the picket fence >forever going forward. Simply put, the drafters >are instructed to ensure that the provisions of >existing contracts are enforceable by their >terms. As I said on this very topic recently: > >Beyond that, the language of 3.18 in question >imposes obligations on registrars maintain ann >abuse point of contact, invesstigate allegations >regarding illegal activities, take appropriate >action, so I donÃ¢t think that amounounts to >regulating registrants. I also agree that there >are situations in which illegal activity could >impact the stability and security of the >InternetÃ¢ââ¢s unique identifiers (e.g., >particularly involving malicious DNS exploits, >etc.), so the provision seems to me to be >appropriate in furtherance of ICANNÃ¢â¢s Mission. > >The problem, of course, is that not all illegal >activity threatens the stability and security of >the DNS; behavior that is illegal in some >jurisdictions is not illegal in all >jurisdictions; and the legality/illegality of a >particular activity is generally a determination >left to sovereigns or courts. So, what >constitutes an Ã¢ approropriate responseÃ¢Â >is going to vary from case to case. >Theoretically, ICANN could choose to enforce the >requirement in a manner that exceeded the scope >of its authority, e.g., it could begin to say >that registrars who do not suspend registrations >in response to allegations that an underlying >site is defamatory are in breach. But I think >3.18 itself is a legitimate contract provision >that ICANN should be able to enforce. > >But that's the problem, right there. You say >that if ICANN "exceeds the scope of its >authority" if it "begins to say that registrars >who do not suspend registrations in response to >allegations that an underlying site is defamatory are in breach." > >But why is it so obvious that this exceeds the >scope of its authority? You will say: because >we have said elsewhere that ICANN shall not >regulate content, and this regulates content. > >But it is not far-fetched for someone to suggest >that the "grandfathering" language modifies >that, and was included precisely to make it >clear that enforcing the provisions of existing >agreements is WITHIN ICANN's authority. Under >existing agreements, Registrars are already >obligated to provide "consequences ... including >suspension of domain name registrations" for >"activities contrary to applicable >law." Defamation is an "activity contrary to >applicable law." Suspending registrations in >response to allegations that an underlying site >is defamatory is thus within the scope of >(existing) agreements. If those agreements are >grandfathered in, it looks to me like we're >saying that when ICANN acts as it is authorized >to do within the existing agreements, it is >acting within the scope of its authority. > >David > > > > > > >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> > >From: David Post <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com> > >Date: Monday, November 30, 2015 at 1:32 PM >To: Accountability Community < >accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> >Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < >NCSG-DISCUSS(a)LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, >Thomas Rickert ><thomas(a)rickert.net<mailto:thomas@rickert.net>>, >Accountability Community < >accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > > >The current Proposal (Annex 5 para 21) states in >a "Note": "For the avoidance of uncertainty, >the language of existing registry agreements and >registrar accreditation agreements should be grandfathered." > >I don't believe any of the previous circulated >drafts contained this language, and in my >opinion it represents a very serious, and very >substantial, step backwards in this process. > >To begin with, it is not clear what >"grandfathering" these agreements mean. One >possible implication is that everything within >the existing agreements is within ICANN's >Mission - or to put it differently, that the >language of the Mission Statement should be >interpreted in a manner such that all provisions >of the existing agreements are inside the >"picket fence" of ICANN's enumerated powers. The >opposite implication is possible, too - that >there are elements of the existing agreements >that are NOT within the Mission, but which are >nonetheless being "grandfathered" in so that >they will not be invalidated in the future >(notwithstanding their inconsistency with the Mission). > >I believe that the former interpretation may be >the one that is intended - and I strongly >disagree with that, and strongly dissent. The >existing agreements contain a number of >provisions that are outside the scope of ICANN's >powers as we have defined it in the Mission >Statement. One most prominent example: In >Specification 1 of the new gTLD Registry >Agreement, Registry operators agree to a set of >mandatory "public interest commitments" - PICs - >and to adhere to "any remedies ICANN imposes >(which may include any reasonable remedy, >including for the avoidance of doubt, the >termination of the Registry Agreement pursuant >to Section 4.3(e) of the Agreement) following a >determination by any PICDRP panel and to be bound by any such determination." > >Among the mandatory PICs, the Registry operator >must "include a provision in its >Registry-Registrar Agreement that requires >Registrars to include in their Registration >Agreements a provision prohibiting Registered >Name Holders from ... engaging in activity >contrary to applicable law, and providing >(consistent with applicable law and any related >procedures) consequences for such activities >including suspension of the domain name." > >Prohibiting domain name holders from "engaging >in activity contrary to applicable law" is NOT >within ICANN's scope as defined in the Mission >Statement. It is neither a matter "for which >uniform or coordinated resolution is reasonably >necessary to facilitate the openness, >interoperability, resilience, security and/or >stability of the DNS," nor was it "developed >through a bottom-up, consensus-based >multi-stakeholder process and designed to ensure >the stable and secure operation of the InternetÃ¢s uniqueque names systems." > >ICANN should not have the power to revoke, or to >impose on others the requirement that they >revoke, anyone's continued use of a domain name >because they have "engaged in activity contrary >to applicable law." Such a provision would >appear to allow ICANN to do what is, elsewhere, >flatly prohibited: to impose regulations on >content. Activity contrary to applicable law >includes activity that (a) violates consumer >protection law, (b) infringes copyright, (c) >violates anti-fraud laws, (d) infringes >trademarks, (e) violates relevant banking or >securities laws, etc. etc. etc. At best, this >provision is flatly inconsistent with the >prohibition against regulating content. At >worst, it can be interpreted to provide an >"exception" to that prohibition - an exception >that will swallow up the prohibition in its entirety. > >David > >At 10:53 AM 11/30/2015, Mueller, Milton L wrote: > >FWIW, RobinÃÂ¢s dissent nt is fully in line >with th the official comments submitted by the >Noncommercial Stakeholders Group during the last public comment period. >--MM > >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 Robin Gross >Sent: Sunday, November 29, 2015 6:41 PM >To: Thomas Rickert >Cc: >accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> >Community >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >Thanks, Thomas. See below. > >Dissenting Opinion of Member Robin Gross (GNSO-NSCG) > >The CCWG-Accountability make a number of helpful >recommendations to improve organizational >accountability at ICANN, however one aspect of >the plan is deeply flawed: changing the role of >ICANN's Governmental Advisory Committee (GAC) >from purely an ÃÂ¢advisoryÃÂ¢Â role to a >ÃÂ¢ ÃÂ¢¬ ÃÂ¢Ã¢Â¬decision makingÃÂ¢Â >role over fundamentaental matterers at ICANN, >including its governance. Consequently the >proposal marginalizes the role of Supporting >Organizations (SOÃÂ¢s) compared to >todaodayÃÂ¢s ICANN goveNN governance >structure. p; The degree of governmental >empowerment over ICANN resulting from the >proposalÃÂ¢s cs community mechanhanism is >dangerous to the success of the proposalÃÂ¢¬s >political acceptance as well as to its >ultultimatte impact on a free and open Internet. > >The creation of a community mechanism to hold >ICANN accountable on key issues made a critical >error by departing from the existing power >balance between SOÃÂ¢â¢s and nd ACÃÂ¢s as >determined by relative boardard >appointments.ts. Instead, the proposed >community mechanism elevates the ACÃÂ¢s >relative to thethe SOÃÂ¢s compared wpared >with todayÃÂ¢s b¬â¢s balance on ICANN's >board of directors,rs, which does not currently >provide a decision making role to GAC, and which >retains the primacy of the Supporting >Organizations on key decisions, particularly >those within the SOÃÂ¢s mandate. The >devaluing of tf tf the Supporting Organizations >in ICANNÃÂ¢s key dy decisiosions was a common >theme in both previous public comment periods, >however the recommendations not only failed to >address this widespread concern, but went even >further in devaluing SOÃÂ¢s in the >communitnity mechanism in the 3r 3rd >report. The community mechanism failed to take >into account the appropriate roles and >responsibilities of the various SOÃÂ¢â¢s and >ACÃÂ¢s, and the dangers angers inherent it in >changing those roles with a ÃÂ¢one sizeze >fitsts allÃÂ¢Â approach to critical decision makingg. > >Additionally, I object to the proposed departure >from ICANNÃÂ¢s typical 30-day pubpublublic >comment period on the 3rd report for >CCWG-Accountability. The 3rd reportÃÂ¢s >public commomment only allallows for 9 days of >public comment after the language translations >are scheduled to be published, which is far too >short of a public comment period for a report of >this significance and with so many important changes since previous drafts. > >Robin Gross > >On Nov 29, 2015, at 1:29 PM, Thomas Rickert ><thomas(a)rickert.net<mailto:thomas@rickert.net>> wrote: > >Dear Robin, >as discussed during the last CCWG call, minority >statements will be included in the report as >appendices if and when they are received. > >Best, >Thomas > >--- >rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c…> > >Am 29.11.2015 um 21:37 schrieb Robin Gross ><robin(a)ipjustice.org<mailto:robin@ipjustice.org>>: >Dear Co-Chairs, >I have still not received a response to this >request. What is the process for submitting >minority statements? Please advise. >Thanks, >Robin > > >On Nov 11, 2015, at 5:35 PM, Robin Gross ><robin(a)ipjustice.org<mailto:robin@ipjustice.org>> wrote: > >Dear Co-Chairs, > >Could you please advise on the proposed schedule >and process for ensuring that minority >statements will be included in the report [of the executive summary]? > >Thank you, >Robin >_______________________________________________ >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 > > >_______________________________________________ >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 > >******************************* >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 <http://tinyurl.com/c327w2n%A0%A0%A0%A0> >music http://tinyurl.com/davidpostmusic >publications >etc. http://www.davidpost.com <http://www.davidpost.com %20/> >******************************* > >******************************* >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 ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> >music http://tinyurl.com/davidpostmusic ><http://tinyurl.com/davidpostmusic%A0> >publications >etc. http://www.davidpost.com <http://www.davidpost.com %20/> >******************************* > >================================================================= >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 >ITServices(a)timewarner.com<mailto:ITServices@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 ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> >music http://tinyurl.com/davidpostmusic ><http://tinyurl.com/davidpostmusic%A0> >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 >ITServices(a)timewarner.com<mailto:ITServices@timewarner.com> >================================================================= ******************************* 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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