On 10/11/2015 12:25, Andrew Sullivan wrote:
If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be
i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry
This can be done without removing the delegation from the root zone.
How? ICANN has basically two sticks at its disposal: it can sue people, or it can remove the delegation. Apart from that, it's hard to see what force ICANN has to bring to bear.
You answer your own question. If someone has contracted with ICANN to do something, ICANN can insist upon it. It may sue if necessary, but usually this won't be necessary because it will be obvious that if it does it will win. ICANN should be prevented from entering into an agreement whose purpose is to achieve something that it is outside ICANN's Mission to seek to achieve. If we say otherwise, and allow ICANN to do anything
But I think that's a distraction, because I reject the premise that ICANN would be in a position to write those terms into the agreements in the first place, because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms:
• For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability: • 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.
Andrew, I think you have misunderstood what is being proposed by those who disagree with me. What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above. So if a Registry offers to promise that the CEO will greet Fadi every Monday morning by tapdancing in Fadi's office, then they say ICANN should be permitted to enter into that contract and enforce it, provided only that the Registry's offer was made "voluntarily" (whatever that means in practice.
It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up.
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