-----Original Message-----
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James Gannon
Sent: Monday, April 11, 2016 5:45 PM
To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section

For whats its worth it would work for me also.

-James

On 11/04/2016, 10:22 p.m., "accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:

Good question Milton, I would like to know if that word works.

HOLLY J. GREGORY

Partner and Co-Chair, Global Corporate Governance & Executive

Compensation Practice

SIDLEY AUSTIN LLP

+1 212 839 5853

holly.gregory@sidley.com

-----Original Message-----

From: accountability-cross-community-bounces@icann.org

[mailto:accountability-cross-community-bounces@icann.org] On Behalf Of

Mueller, Milton L

Sent: Monday, April 11, 2016 3:59 PM

To: Malcolm Hutty; Accountability Cross Community

Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section

What's wrong with the word "control" instead of "regulate"?

-----Original Message-----

From: accountability-cross-community-bounces@icann.org

[mailto:accountability-cross-community-bounces@icann.org] On Behalf

Of Malcolm Hutty

Sent: Monday, April 11, 2016 3:13 PM

To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability

Cross Community <accountability-cross-community@icann.org>

Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section

On 11/04/2016 19:42, Silver, Bradley wrote:

Thanks Malcom (and Becky). It is important that the implementing

language be clear and unequivocal. The concept we agreed on was

"regulation", which is a specific type of activity. If there are

reasons why we cannot use this term in the context of ICANN's

activities, we the lawyers should therefore seek to approximate

this type of activity that regulators do. Our discussions in the

CCWG were recent enough that we can all remember how carefully

these words were chosen, and how much they were debated, and if we

had wanted to

impose

some sort of limitation on the terms of the RA or RAA that was not

already encompassed by the description of ICANN's mission, we

could have said so - and we did not. The concept was one of ICANN

attempting to exert a power to impose rules/conditions on third

party services and content, and I think it's important to stay

faithful to that, without reopening the debate we had in the CCWG.

Bradley, I think we're in complete agreement as to what we should be

trying to do, and almost completely agreed on how to express it as well.

You mention "what regulators do". Certainly in my experience they

don't only rely on imposing terms and conditions, but use a variety

of mechanisms to achieve their goals, from formal law to seeking to

cajole corporate representatives and leadership. So I think that

reasoning also supports a broader definition.

But perhaps we should stick more closely to the verb "regulate" than

the actor "regulator", to match the language of the report.

When I type "define: regulate" into Google, the definition given

reads

(1) control or maintain the rate or speed of (a machine or process)

so that it operates properly.

(2) control or supervise (something, especially a company or business

activity) by means of rules and regulations.

(3) set (a clock or other apparatus) according to an external standard.

The second seems to me entirely consistent with my understanding of

the Report's provision. Other dictionaries will no doubt offer

slightly different definition, and I assume the implementation team will look at a few.

Anyway, this isn't easy, and we're fumbling for the right works, in

the dark together, hand-in-hand.

All the best,

Malcolm.

-----Original Message----- From:

accountability-cross-community-bounces@icann.org

[mailto:accountability-cross-community-bounces@icann.org] On Behalf

Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To:

Accountability Cross Community Subject: Re: [CCWG-ACCT]

Implementation

flaw in Mission section

I see that Becky has replied to my message in the paper distributed

for this evening's meeting, but the reply was not otherwise copied

to the list. For ease of reference (and reply), here it is.

Becky Burr wrote:

Malcolm is correct that proposed text is different from the Report.

In the course of drafting, the CCWG attorneys pointed out that the

construct (no regulation of services etc.) could create unintended

consequences related to the application of antitrust law. This was

viewed as particularly problematic under the current

circumstances, where the supervision of the US government (which

at least arguably provides some protection for ICANN) is being withdrawn.

We attempted to eliminate this problem and discussed several

approaches to doing so. This approach seemed to get at the concern

that was animating the CCWG in its discussions on this point, use

of the Registry Agreement and Registrar Accreditation Agreement to

regulate registrant conduct.

Malcolm is correct, of course, that ICANN might attempt to use

some other vehicle to regulate content. But it is critical to keep

in mind that the prohibition on regulation is, by nature, a “belt

and suspenders” approach. Keep in mind that ICANN is prohibited

from doing exceeding its Mission. See Section 1.1.(b): “ICANN

shall not act outside its Mission.” So no matter what other

mechanism ICANN might find to attempt to regulate content, the

Bylaws simply prohibit that.

We are open to other constructs, so long as they don’t raise the

same antitrust concerns identified by Holly and Rosemary in our

discussions. At a minimum, that requires us to avoid the term

“regulation” and to be as concrete as possible.

On 08/04/2016 12:28, Malcolm Hutty wrote:

I have found a discrepancy between CCWG Final Report and the

implementation of the draft Bylaws in the Mission section.

The Report approved by the Chartering Organisations says:

"* Clarify that ICANN’s Mission does not include the regulation of

services that use the Domain Name System or the regulation of the

content these services carry or provide." (paragraph 134)

The Draft Bylaws implements this as follows: "* ICANN shall not

use its contracts with registries and registrars to impose terms

and conditions that exceed the scope of ICANN’s Mission on

services that use the Internet’s unique identifiers or the content

that such services carry or provide." (Article I Section 1.1 (c))

Firstly, this draft bylaw would pick on only one means by which

ICANN might seek to regulate content (through the RA or RAA

contracts), and prohibits that. There is no such limitation in the

CCWG Report: our Report prohibits any attempt to regulate content

by ICANN, whether through the RA/RAA contracts or by any other means.

Certainly, the RA/RAA contract is the most likely means by which

ICANN might seek to regulate content and services. However, if

ICANN manages to come up with some other means (including means

that

cannot

now be imagined) then a full implementation of the CCWG Report

would cover that too.

This is a clear and objective discrepancy.

Secondly, the CCWG Report expresses this limitation as an

exclusion from the Mission. That was quite deliberate, and

significant. We never expressed this section as a bare prohibition

on some action, it was always considered to be essential that it

was a Mission limitation.

This aspect of the Report's proposal is not reflected in the draft

bylaw at all. That is also clear discrepancy.

The significance of this is that a Mission limitation has a

broader scope. Excluding regulation of content from the Mission

means any action aimed at regulating content can be challenged,

including actions that (if done for some legitimate purpose) would

be entirely OK. By contrast, a Bylaw that merely prohibits a

certain class of action is weaker, because it says it's OK for

ICANN to regulate content if it can find some way of doing so

within its permitted powers. That's simply not consistent with the

Report approved by the Chartering Organisations.

Finally, in the future there may arise some disagreement as to

whether a specific activity constitutes "regulation", in

particular in marginal cases. Before we adopted the Report, our

lawyers advised us not to seek to tightly define this in every

particular, but to allow precedent to develop as cases arise. We accepted that advice.

The implementation team should therefore avoid seeking to resolve

that deliberate ambiguity in favour of the narrowest possible

definition of regulation: again, that's not consistent with the

Report.

I therefore propose we transmit the following request to the

implementation team.

"Article I Section 1.1(c) implements paragraph 134 of the CCWG

Report (prohibition of regulation of content) as a prohibition use

of its contracts with registries and registrars to regulate

content. This does not fully implement our Report. Please ensure

that ICANN is prohibited from regulating content through any

mechanism, not only through registry and registrar contracts.

Furthermore, please exclude express this as an exclusion from the

Mission, not merely a bare prohibition on certain actions, so that

activities that would otherwise be permitted to ICANN can be

challenged if they are designed to achieve this prohibited purpose."

I hesitate to offer alternative wording: the lawyers may wish to

come up with their own, and we should let them. But I will offer

these observations and a brief suggestion.

1. I understand that the lawyers wished to avoid use of the word

regulation. Fine. 2. When moving away from the word regulation,

they also moved away from describing a class of activity

(regulation) to a specific action (using X contract in Y way). I

think this is where they went wrong. This in itself limits the

scope of the restriction. 3. Sticking as closely as possible to

the text of the Report that Chartering Organisations have approved

would seem advisable. So if they want to avoid the word

regulation, look for some synonym.

Thus compare our Report: "Clarify that ICANN’s Mission does not

include the regulation of services that use the Domain Name System

or the regulation of the content these services carry or provide."

with the implementation team's draft bylaw

"ICANN shall not use its contracts with registries and registrars

to impose terms and conditions that exceed the scope of ICANN’s

Mission on services that use the Internet’s unique identifiers or

the content that such services carry or provide."

and my alternative suggestion for this Bylaw

"ICANN's Mission does not include seeking to constrain or impose

requirements upon the services the use the Domain Name System, nor

seeking to constrain the content that those services carry or

provide".

That would follow the Report as closely as possible, preserve the

restriction as a limit on ICANN's Mission as intended, and still

achieve the lawyers' goal of avoiding the word "regulate".

Kind Regards,

Malcolm.

--

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

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