Greg, Thank you for this new proposal. I would make some comments: 1. I think your new wording "(i.e. those offered by web servers, mail servers and the like)" is less clear or precise than either the previous formulation ("services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet") or the simpler one that preceded it ("services that use the Internet's unique identifiers"). What, for example, does "and the like" mean? What are its bounds? But since we're not drafting final bylaws language, perhaps your wording could be included in a footnote, as a drafting note to the lawyers? Would that satisfy you? 2. Your new paragraph referencing the 2013 RAA is problematic. The 2013 RAA may evolve or be replaced; Fundamental Bylaws are expected to be more lasting. And the RAA is contract between its signatory parties, not a community policy; its provisions could be waived or not enforced (as you yourself complain indeed happens). 3. Moreover, this language is absolutely intended to restrain what Consensus Policy may contain, and I'm afraid your language suggests otherwise. This wording could even be taken as immunising Consensus Policy from challenge. That is not the intent; the Mission is not only a standard for holding the Board to account, but also the community. A purported Consensus Policy that infringes this prohibition should be subject to challenge, and alleged infringement of the 2013 RAA and of this provision should both be grounds for mounting such a challenge; the nexus between the two will certainly help the IRP in deciding each. 4. In any case, I don't see why you want would to replace the words "in service of its Mission" with anything as cumbersome as you propose. On 10/11/2015 06:11, Greg Shatan wrote:
I'm flattered (I think) to have my name attached to a proposal. However, my thinking has evolved with regard to certain parts of the post-Dublin language, "my" proposal and Malcolm's proposal. I would suggest a version that is in many ways is an amalgamation of these 3. The first paragraph is most similar to Malcolm's proposal, while the second is most similar to the Post-Dublin proposal. The third paragraph is taken from the Second Draft Report and from the recommendations of WP1 after the second public comment analysis. A clean version is below, followed by a version of Becky's chart with an added column for this proposal (a PDF is also attached). For convenience, I've marked my latest version against Malcolm's rather than my prior version. As a general rule, I chose versions that had the clearest language and avoided extra phrases that did not seem to add meaning.
Greg
ICANN shall only act in accordance with its Mission.
Without in any way limiting the foregoing, ICANN shall not regulate services (i.e. those offered by web servers, mail servers and the like) that use the Internet's unique identifiers or the content that those services carry or provide.
The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements. Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.
2^nd Draft Report Language
Post-Dublin Language
Greg Shatan Proposal 2 Nov 2015
Malcolm Hutty Proposal 6 Nov 2015
Greg Shatan Proposal 9 Nov 2015
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.
ICANN shall have no power to act strictlyother than 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.
In service of its Mission 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.
ICANN shall have no power to act other than in accordance with, and 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 and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.
In service of its Mission, 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.
ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
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
ICANN shall only act strictly[1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn1> in accordance with its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of regulate services(i.e. those offered by web servers, mail servers and the like)[2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn2> that use the Internet's unique identifiersto enable or facilitate their reachability over the Internet, nor shall it regulate[3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn3> or the content that those services carry or provide.
The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements.^^[4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn4> Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.^^[5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn5>
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
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[1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref1> I have not accepted Malcolm’s addition of “strictly,” since this will be construed to mandate the most restrictive and conservative interpretation possible and thus make the bylaw overly inflexible.
[2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref2> This is taken from an email from Malcolm Hutty, as a description of what is meant by “services” in this context. Due to the variety of meanings that “services” can have, it is necessary to avoid ambiguity.
[3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref3> Once the nature of the “services” is clarified, the nature of their “use” no longer needs to be clarified.
[4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref4> This is taken almost verbatim from the Second Draft Report, para. 158. Since it is a direct comment on the contents of the Bylaw, it should be reflected in the draft Bylaw. Once this is here, Malcolm’s last sentence is no longer needed.
[5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref5> This is a recommendation taken from the “Comment Summary PRINCIPLES” analysis prepared by WP1 after the second Public Comment period.
On Mon, Nov 9, 2015 at 7:09 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
All -
In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).
The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours!
2^nd Draft Report Language____
Post-Dublin Language____
Greg Shatan Proposal 2 Nov 2015____
Malcolm Hutty Proposal 6 Nov 2015____
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. ____
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.____
ICANN shall have no power to act strictlyother thanin 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. ____
In service of its MissionICANN 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.____
ICANN shall have no power to act other than in accordance with, and 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 and contracted parties entering into, complying with and enforcing agreements does not constitute regulation. ____
In service of its Mission, 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.____
ICANN shall only act strictly in accordance withand as reasonably appropriate to achieveits Mission. ____
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide. ____
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.____
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____
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*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:***+1.202.533.2932 <tel:%2B1.202.533.2932> *Mobile:***+1.202.352.6367 <tel:%2B1.202.352.6367> */**neustar.biz* <http://www.neustar.biz>____
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