Andrew, 

I strongly agree with your concluding statement:

This is really why I think the "not a regulator" and "can undertake
contracts" sentences, however we write them, are dangerous here.  The
basic restriction to enumerated powers is already in place, and I
think these two sentences are going to be fantastically hard to write
correctly for our meaning without causing some sort of side effect.  I
remain unconvinced they're either necessary or a good idea.

​We are (unfortunately) down that rabbit-hole, and I think further efforts will just dig new tunnels, none of which will lead to daylight.​  Extracting ourselves entirely from the rabbit hole would be a far, far better thing.

Greg

On Fri, Nov 20, 2015 at 12:45 PM, Avri Doria <avri@acm.org> wrote:
+1

and I believe we  should seriously consider the advice of the guy that
has no vested interest in this part of ICANN's mission.

avri

On 20-Nov-15 12:31, Andrew Sullivan wrote:
> On Fri, Nov 20, 2015 at 12:06:38PM -0500, Greg Shatan wrote:
>> As stated in the provision, a "service" for the purpose of this clause is "any
>> software process that accepts connections for the Internet) that use the
>> Internet's unique identifiers." As such, it is clearly incorrect to say
>> that "registrars/registries" are "services that use the Internet's unique
>> identifiers.""
> I'm afraid I disagree.  This was the worry I tried to raise when I
> first suggested that language, and I noted in the chat for the call
> the other day.  Whois (and RDAP when it's deployed) is clearly a
> software process that accepts connections from the Internet.  EPP is
> also that.  So is http(s), which is how most registrars interact with
> their customers; there are definitely rules about what they have to
> offer there (e.g. whois data over http -- there are even rules about
> what such data has to say).  There is in fact an argument to be made
> here.
>
> I accept Becky's argument that the futher clarification that ICANN
> could enter into contracts to support the registration services is
> enough to counteract all this, but I can see why someone would be
> worried.
>
> This is really why I think the "not a regulator" and "can undertake
> contracts" sentences, however we write them, are dangerous here.  The
> basic restriction to enumerated powers is already in place, and I
> think these two sentences are going to be fantastically hard to write
> correctly for our meaning without causing some sort of side effect.  I
> remain unconvinced they're either necessary or a good idea.
>
> Best regards,
>
> A
>


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