I think David's point was a bit different and more nuanced than that, as he said that "to the extent that the applicant made some voluntary undertaking that was not viewed by ICANN as a condition of its entry into the root, I have less of a problem in saying that ICANN can take steps to enforce the contractual promises made to it by third parties." There are plenty of registries that promised nothing beyond technical competence and that's fine, but there are many others who promised more (geos, communities, restricted TLDs, etc.). I agree that there is a value to a .bank TLD that is operated in secure manner and that verifies its registrants, etc. If the operator obligates themselves in their registry agreement to operate the TLD in that manner, that should then be enforceable by ICANN. Expecting registrants to enforce that status is unrealistic -- but if you want to enrich my brethren in the class action bar, that might be a good way to do it. As for meaningless strings -- I support that right, too. If a registry operator thinks they can make money that way, more power to them. Of course, it won't stay meaningless forever -- it will likely acquire a meaning over time if it is distinguished in any way (low prices, all malware, kids use it). As any trademark lawyer will tell you, the strongest kind of mark is a "fanciful" (i.e., made-up) mark, so it might be a shrewd move to start with a heretofore meaningless string and breathe meaning into it as the operator sees fit sees fit. Greg On Fri, Jan 15, 2016 at 5:23 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
It isn’t whether the strings are meaningful or meaningless is it? In the end David’s point (with which I think I agree) is that enforcing that meaning is not ICANN’s job because it isn’t related to the security and stability of the system. I take Becky’s point that there is value in having meaning and also that sometimes the only way to make that value real is by enforcing standards for use of the meaningful string. We can all agree that it is better for banks to be in .bank than it is for sports teams, or fraudsters. But that’s a requirement that is external to the stability of the network and I tend to think it is a bad thing for ICANN to take that obligation on. The obligation (e.g. to run a domain that gives out .bank strings only to people who meet a certain regulatory status) runs to the people who create and rely on that status … not to ICANN, I think
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
<http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...>
*From:* Greg Shatan [mailto:gregshatanipc@gmail.com] *Sent:* Friday, January 15, 2016 3:57 PM *To:* David Post <david.g.post@gmail.com> *Cc:* Accountability Community <accountability-cross-community@icann.org>
*Subject:* Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion
David,
I thinks this is a good point, actually. There are complexities, fuzzinesses and variables to be sure. And we may draw the (fuzzy) line in different places. But even common agreement on what is on the "right" side of the line would be a start.
At some point, we also get to some fairly philosophical policy questions -- what should it mean to operate a TLD? Should it be largely meaningless to have one TLD vs. another? Or should many TLDs be very meaningful? Should a TLD registry operator promise that their TLD have a certain meaning (security, our registrants are real banks and not phishing scams, you should feel safe here)? When should ICANN resolve contention sets based on who made the better promises? Should all applicants have to keep all their promises when the TLD is "live" -- or are some applicants or some promises different than others?
Meaningless TLDs would be kind of a disaster, since the new gTLD marketplace is predicated on differentiation, and on making a ready connection between the string and the meaning. We actually did pretty well on the gTLD side with largely meaningless TLDs for a long time (e.g., how many network vs. non-network registrations are there in .net?), while most ccTLDs had at least some degree of meaningfulness. Imagine a new gTLD program predicated on meaningless strings -- all Londoners should want .blatz, while the horse-loving community is going to love .splooshle. Not too compelling. Indeed if meaningless strings were cool, there probably would be no domain names -- we'd just have IP addresses....
Greg
On Thu, Jan 14, 2016 at 1:51 PM, David Post <david.g.post@gmail.com> wrote:
Is it possible to analyze these problems by asking first whether ICANN has imposed these requirements (for e.g. a stakeholder council) on the applicant as a condition of entry into the root or, instead, it's a voluntary commitment undertaken by the applicant for its own purposes (e.g. to get the support of global environmental organizations, to get external funding, or what have you).
If it were the former, then I think I do have a problem with ICANN's enforcement of the provision absent some demonstration both that it is reasonably necessary for the stability/security/interoperability of the DNS (which I wouldn't think it is, on the face of it from your hypothetical) and that it is otherwise within the confines of the mission. On the other hand, to the extent that the applicant made some voluntary undertaking that was not viewed by ICANN as a condition of its entry into the root, I have less of a problem in saying that ICANN can take steps to enforce the contractual promises made to it by third parties.
I know it's a fuzzy line - maybe too fuzzy to be workable. But I do think that it might be the line that we've been struggling to define throughout this discussion. David
At 12:59 PM 1/14/2016, Burr, Becky wrote:
I understand these concerns. Let me try to make my concerns concrete, particularly in the context community applications for new gTLDs, which may contain provisions that are a condition of community support but not strictly within ICANN¹s wheelhouse.
Say, for example, that a community .eco application included provisions, for example, requiring registrants to disclose certain information about their environmental practices, and assume for the moment, that the requirement was the result of input from an advisory group consisting of global environmental organizations and a condition of the support of those groups. (I believe that these suppositions are factual but it really doesn¹t matter.) Suppose, also, that the application includes an obligation to maintain and support a stakeholder¹s council consisting of representatives from global environmental organizations. Another example, suppose .bank requires registrants to demonstrate a certain regulatory status, and imposed that requirement to gain the support of financial institutions?
All of those commitments, by virtue of their inclusion in the application, are enforceable by ICANN. But say that the applicant decides to abandon the disclosure requirement and disbands the stakeholder council. Are either of those commitments reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS? Is ICANN¹s contractual authority to enforce those commitments ³in service² of ICANN¹s stability and security Mission?
We could say that the community preference for new gTLDs is the result of bottom-up, multistakeholder policy development and that contractual enforcement is ³in service² of that policy. But I don¹t know if that actually resolves the need to be reasonably necessary to facilitate stability, security, etc.
Thoughts??
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>
On 1/14/16, 12:03 PM, "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com> wrote:
I share Malcolm's view of voluntary commitments. Leaving aside what may have gone before, allowing the parties to an agreement to contract around binding limitations on their action would, effectively, nullify the Mission-limitation principle that is at the core of the accountability structure we are building. I can live with grandfathering in prior mistakes in this regard, if I have to, but it is essential that the line be drawn for future actions in stone, not sand.
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Thursday, January 14, 2016 2:14 AM To: Burr, Becky <Becky.Burr@neustar.biz>; Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion
On 06/01/2016 19:03, Burr, Becky wrote:
Is attached in DRAFT FORM. Anything missing or wrong should be attributed to incompetence rather than conspiracy. I am still working on questions in 1 section. I will also shortly resend a variety of previously circulated resource documents.
Becky,
The slide deck you actually presented at meeting 75 contains three propositions that were not contained in this draft deck you copied to the list. I believe you described these in your oral presentation as "strawman propositions for discussion". I am writing to react to those propositions.
"Proposition: The GAC may provide Advice on any matter it sees fit; ICANN must duly consider such Advice in accordance with the Bylaws, and if it decides to follow such Advice, must do so in a manner consistent with ICANN's Bylaws, including its Mission Statement."
I agree with this proposition.
"Proposition: ICANN's agreements with contracted parties may reflect: (a) bottom-up, consensus-based, multistakeholder policies on issues for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and (b) other provisions in service of that Mission."
I also agree with this proposition.
The third propostion you introduce with a question:
"To what extent should contracted parties be free to propose or voluntarily accept (and obligated to comply with) contract provisions that exceed the scope of ICANN's Mission, e.g., to serve a specific community, pro-actively address a public policy concern?
If "voluntary" commitments may exceed the scope of ICANN's Mission, how do you ensure that such commitments are truly voluntary?
Proposition: Individually negotiated commitments will be deemed to be voluntary. Existing RA and RAA language (including standard PICs) are "grandfathered" (as defined in Notes). Going forward, a mechanism should be available to permit contracted parties to enter into agreements without waiving the right to challenge (collectively) a contract provision on the grounds that (a) it exceeds ICANN's Mission and (b) was extracted by ICANN on an other than voluntary basis."
I do not agree with this proposition, because I think the question you pose to which it is offered as an answer is mistaken.
My reasoning is as follows:
Let us set aside the question of how to determine whether a particular provision of a contract between ICANN and a Registry was arrived at through "voluntary" means. Let us also set aside the vexed question of whether the concept of a "voluntary commitment" is even meaningful in a negotiation between an entity that has a critical input for its core business and an entity that is the monopoly supplier of that critical input.
Let us consider instead: why do we care whether terms in Registry contracts are "voluntary commitments"?
To put it another way, what is the wrong with ICANN imposing unwanted terms on Registries?
It seems to me that the very notion of "voluntary commitment" must be intended as a meaning of protecting Registries from unreasonable impositions by ICANN. However the fear of ICANN making unreasonable impositions on Registries is not the only or main reason why we want to limit ICANN to acting within its Mission, so addressing the Mission limitation through some definition of what constitutes a "voluntary commitment" misses the point.
Limiting ICANN to its Mission is there to protect the entire community, not just Registries. Concerning the so-called "regulatory prohibition", that prohibition is intended primarily to protect the interests of end-user registrants, not those of Registries. We should be just as concerned if ICANN tries to exceed its Mission as a result of a conspiracy between it and the Registries as we should if ICANN does so as a result of some other motivation and then tries to impose requirements on Registries without their approval.
Accordingly, I am afraid I cannot agree with either your third proposition or the assumption on which it rests.
In your question you ask "To what extent should contracted parties be free to propose or voluntarily accept (and obligated to comply with) contract provisions that exceed the scope of ICANN's Mission".
The answer to this is that contracted parties are not bound by ICANN's bylaws, and so they are entirely free to enter into any contractual relations they wish. However, ICANN is bound by its bylaws, and so is not free to be the counterparty to a contract the purpose of which exceeds or is in contradiction with the Mission or other bylaws requirement.
Incidentally, I would point out that there is nothing unique about the Mission limitation. If we were to adopt the view that ICANN is free enter into an agreement with Registries for purposes beyond the Mission merely because the Registries were eager for it to do so, by the same token ICANN could then also disregard any other provision of the Bylaws that sought to constrain how ICANN acts provided that Registries "voluntary" agreed to that. That cannot be acceptable to anyone, surely.
Kind Regards,
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange |
https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net
_&d=CwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W DDkMr4k&m=S1JiVUQAqGB5VlxgFKlZdI4Kacb3MT5lpljmR0QprN0&s=EG_60KARwEuCkyZejW CL5HMy7C5FuGO58n8IlpW3_qE&e=
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@icann.org
https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_
listinfo_accountability-2Dcross-2Dcommunity&d=CwICAg&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=S1JiVUQAqGB5VlxgFKlZdI 4Kacb3MT5lpljmR0QprN0&s=a2j-IrQbQI8nnG8lowtub4eUpDPs20QHQrk9PfOuYak&e=
_______________________________________________ Accountability-Cross-Community mailing list 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 music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
