This topic was just discussed extensively on the call yesterday and there was considerable progress. The recordings, notes, chat and call transcripts are all available now at https://community.icann.org/pages/viewpage.action?pageId=56145283. I've attached the call transcript; the relevant discussion is on pp. 4-19. It's important to read the whole section, but the concluding remarks from that discussion are helpful for us to build on:

Becky Burr: Well, no, I mean, I think that the point is - and Greg has just echoed me in this - what we are talking about is services, not service providers. So the question is what is the underlying service, not what is the nature of the business. So I guess I agree with - I agree with the way it is set up in this language here.

Thomas Rickert:       Yes, and I guess that what you’ve just refined is a better description of what Greg I think meant by saying differing classes of services - class of businesses. So I guess that’s helpful. So I think we can confirm and please let me know if you do not agree with this, that that we are looking for a technology-neutral description of this.

But still if we’re using the technique that Kavouss has suggested, for example, we could have examples of technology to illustrate what we mean by the definition that should then go - or by the language that should then go into the bylaws. Alan, you’ve raised your hand.

Alan Greenberg:      Yeah, thank you. It [dawns] on me that when we're looking at the two classes of service, someone may be offering a graphics design service over the web. Clearly, we are never saying we are going to be regulating the graphics design service. So at some level we could not - we don’t have to differentiate because we’re - the higher level service is always carved out. But since the word has two different very distinct meanings it’s probably better to be clear. Thank you.

Thomas Rickert:       Thanks very much, Alan. And I think that these are excellent final words on this conversation. So I think this is as far as we can get during this call. And with that I’d like to thank you all for your contributions and for bearing with us for those who are not calling this their favorite item. And let’s now move to the next agenda item which is going to be chaired by Mathieu.

Andrew Sullivan had two suggested revisions to the first part of the provision

, both of which are consistent with this direction:

ICANN
shall not impose regulations on

services (i.e., any software process that accepts

connections from the Internet) that use the Internet’s unique

identifiers, or
the content that such services carry or provide

or, alternatively

ICANN
shall not impose regulations on

services (i.e., any software process that accepts datagrams from the Internet, when those datagrams are not themselves necessarily the consequence of a datagram previously sent by the software process itself) that use the Internet’s unique identifiers, or
the content that such services carry or provide

These parentheticals are both more "technically neutral" than the parenthetical I circulated ("(i.e., the software processes by which commands received via the Internet are processed and a response is generated and transmitted via the Internet, to be viewed in a web browser, email client, or the like")). I tend to prefer the first one, which has the virtue of brevity. That said, we should see if there are tweaks consistent with Thomas's summary of the call "we’re not talking about the service providers or the class of business that they're in but that we're talking about the technical processes, the technical services."

Another suggestion came from Milton Mueller:

ICANN
shall not impose regulations on

Information services which use the Internet’s unique identifiers but are not registries or registrars, or

t
he content that such services carry or provide

In response to James Bladel, Milton suggests "Instead of saying “registries or registrars” we could simply say “under the Registrar Accreditation Agreement (RAA) or the Registry Agreement (RA).”

ICANN
shall not impose regulations on

Information services which use the Internet’s unique identifiers but are not under the Registrar Accreditation Agreement (RAA) or the Registry Agreement (RA), or

t
he content that such services carry or provide

Although "information services" could be preferable to "services," the first suggestion clearly takes us away from describing "technical processes" and instead describes "service providers" since it refers to "registries or registrars" as the kind of thing that would be included as "information services" (unless carved out). The second suggestion is not as clearly about "service providers" but it's also not clearly about "technical services" either (there's not enough information to read it clearly).

Perhaps there's a way to combine these various thoughts in a manner consistent with the overall direction, for instance in the following synthesis:

ICANN
shall not impose regulations on:

Information services (i.e., any software process that accepts

connections from the Internet) that use the Internet’s unique identifiers, other than those covered by the Registrar Accreditation Agreement (RAA) or the Registry Agreement (RA), or
t
he content that such information services carry or provide

or, alternatively (if the carve-out for the RAA/RA seems confusing, unnecessary or overbroad)

ICANN
shall not impose regulations on:

Information services (i.e., any software process that accepts

connections from the Internet) that use the Internet’s unique identifiers, or
t
he content that such information services carry or provide

In order to focus this email, I haven't touched on the second sentence, which we should finalize as well.

I look forward to your thoughts.

Greg

On Fri, Nov 13, 2015 at 11:44 AM, Mueller, Milton L <milton@gatech.edu> wrote:

James:

Understand your concern. I think we can easily fix this.

Instead of saying “registries or registrars” we could simply say “under the Registrar Accreditation Agreement (RAA) or the Registry Agreement (RA).”

Vertical integration between registries and registrars does not alter the fact that they are still contracted parties under either RAA or RA or both, and by specifying the RAA and RA we make it very clear which aspects of the business are “regulated” and which are not.

From: James M. Bladel [mailto:jbladel@godaddy.com]
Sent: Friday, November 13, 2015 11:22 AM
To: Silver, Bradley <Bradley.Silver@timewarner.com>; Edward Morris <egmorris1@toast.net>; Mueller, Milton L <milton@gatech.edu>

Cc: Accountability Cross Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Like many, I have completely lost track of this thread, particularly since many messages are arriving out-of-sequence. Not sure if this this the best place to jump in, but here goes: I do not support the inclusion of the terms “Registries” or “Registrars” in to ICANN’s mission or bylaws.

We are entering a new era of vertical integration between & among a wide variety of service providers. Some of these commercial activities are subject to ICANN governance, others are not.

We have a hard enough time defining these terms in our own Stakeholder Group Charter(s), so I don’t recommend transplanting that mess here.

Thanks—

J.

From: <accountability-cross-community-bounces@icann.org> on behalf of "Silver, Bradley" <Bradley.Silver@timewarner.com>
Date: Friday, November 13, 2015 at 7:46
To: Edward Morris <egmorris1@toast.net>, "Mueller, Milton L" <milton@gatech.edu>
Cc: Accountability Cross Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

Thanks Milton and Ed -

Doesn’t calling our registries and registrars get us back into the problem area of whether activities such as the accreditation of Privacy & Proxy services is in breach of the no-regulation clause? I had thought the goal of the draft Greg circulated was to describe the specific processes that ICANN would stay clear of imposing regulation on (the distinction being that “services” is not meant to describe entities, but rather a certain type of activity).

Also, the change the second bullet does not provide the clarity that is needed – it essentially makes it a narrower way saying what the first sentence says. The point of the contractual language was to clarify that the first bullet would not impede ICANN’s furtherance of its mission via contractual agreements. I think flipping it around doesn’t give the necessary guidance and clarity.

These are important distinctions, but I think a good step towards finding agreement on language that could satisfy broad interests.

Bradley

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris
Sent: Friday, November 13, 2015 6:24 AM
To: Mueller, Milton L
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

+1

The revised language is a bit clearer and based more on general principle than on specific technology. We're building a governing construct for the future ICANN regardless of where technology takes us. Milton's proposed language better allows us to carry these general principles forward regardless of any changes to base technology that ICANN might encounter or need to adapt to.

Ed

On Nov 13, 2015, at 2:45 AM, Mueller, Milton L <milton@gatech.edu> wrote:

Greg:

I think with some modifications to your proposed text we can find widespread agreement. Here is how I would modify your proposal:

ICANN shall act strictly in accordance with, and only as reasonably appropriate to, achieve its Mission. Without limiting the foregoing:

?        ICANN shall not impose regulations on:

o   Information services which use the Internet’s unique identifiers but are not registries or registrars, or

o   The content that such services carry or provide

?        ICANN shall have the ability to enter into and enforce agreements with contracted parties, insofar as those agreements are consistent with its Mission.

Explanation:

“information services” is a simpler and more generic way to describe what we you are referring to and has a long regulatory history. As others noted before, it is dangerous to try to get too technologically specific. What we need to do here is carve out an exception to the regulation band for registries and registrars, which ICANN can and does regulate in accord with its mission.

The second point, pertaining to enforcing contracts, puts in clearer and more restrictive language. Rather than “in furtherance of’ its mission I proposed “consistent with” its mission. One might claim that many ancillary activities might “further” ICANN’s mission in some way; it is more precise to ask that ICANN’s activities be “consistent” with its mission.

--MM

On Thu, Nov 12, 2015 at 3:24 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:

I share Keith’s confusion. Just where are we?

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