On 11/11/2015 06:26, Greg Shatan wrote:
GS: I think there are two fundamental flaws here, which essentially negate this entire analysis. First, this attempts to conflate the public comment record and the concept of CCWG consensus. Public comments are important and they must be considered in the work of the CCWG (or any WG) but they are in no way a measure of consensus (or lack of consensus) within the CCWG.
Greg, You can lawyer this as much as you like, but at the end of the day we are trying to produce a report that has broad consensus in the community. To present a Final Draft Report that does the opposite of the overwhelming majority of public feedback received would be offensive to the very concept of bottom-up multistakeholderism, however you try to slice and dice it.
The second fundamental flaw is the presumption that enforcing " voluntarily assumed obligations with respect to registry operations " constitutes "regulation of services that use the DNS or the content these services carry or provide" or the regulation of entities with which iCANN does not have a contractual relationship.
Nobody has said that such obligations will necessarily constitute such regulation. This is a straw man of your own creation. The point is that such obligations *could* include provisions that would amount to such regulation. Accordingly, if we immunise those contracts from all possibility of review, as you propose, it will not be possible to prevent ICANN from engaging in such regulation. This is an entirely realistic fear. If ICANN did attempt such regulation, it would pretty much have to use this mechanism; as Andrew has pointed out, the only other lever is the threat to remove the delegation, which isn't realistic. If there is to be any restriction on the scope of ICANN's ability to regulate content whatsoever, we cannot have these contracts deemed to be acceptable by definition. These contracts are necessary and, in most respects, entirely proper. But they cannot be put beyond challenge. All aspects of ICANN's activities must be held accountable to standards set out in the Mission, not merely "all aspects except the contracts it signs". Support for this position in the public comment record is clear and overwhelming. Malcolm * An agreement for ICANN to start regulating this content might be entered into with a registry's entirely willing collusion, or it might be effectively imposed, as in "if you want the gTLD you've applied to run, you'd better sign up to these "voluntarily" obligations. Either way circumvents the limits on ICANN's Mission, to the potential detriment of registrants. So whether these obligations are truly "voluntary" *for the registry* is completely immaterial; if they impose mandatory controls on the registrant beyond the legitimate extent of ICANN's Mission, then ICANN should have no part of them and should not sign such a contract. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ 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