while mindful of Paul Rosenzweig¹s legislative history concern, it is the risk of inadvertently over-riding or confusing the description of ICANN¹s names-related mission that worries me most in our present efforts to find language that captures a very nuanced position 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 11/10/15, 8:27 AM, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 10/11/2015 12:25, Andrew Sullivan wrote:
If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be
i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry
This can be done without removing the delegation from the root zone.
How? ICANN has basically two sticks at its disposal: it can sue people, or it can remove the delegation. Apart from that, it's hard to see what force ICANN has to bring to bear.
You answer your own question.
If someone has contracted with ICANN to do something, ICANN can insist upon it. It may sue if necessary, but usually this won't be necessary because it will be obvious that if it does it will win.
ICANN should be prevented from entering into an agreement whose purpose is to achieve something that it is outside ICANN's Mission to seek to achieve. If we say otherwise, and allow ICANN to do anything
But I think that's a distraction, because I reject the premise that ICANN would be in a position to write those terms into the agreements in the first place, because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms:
€ For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability: € That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet¹s unique names systems.
Andrew, I think you have misunderstood what is being proposed by those who disagree with me.
What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above.
So if a Registry offers to promise that the CEO will greet Fadi every Monday morning by tapdancing in Fadi's office, then they say ICANN should be permitted to enter into that contract and enforce it, provided only that the Registry's offer was made "voluntarily" (whatever that means in practice.
It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up.
These agreements are in addition to consensus-based bottom-up policy.
-- 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=CwIGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W DDkMr4k&m=Nj0sjQ_uLw9xdxRSSKOWPUiInA4BcBQGE1jScjZ8RJI&s=Iv4ziJTwiKW5c9EW3Z M2yuYWRUV2r0j_92F0uFa-sNY&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=CwIGaQ&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Nj0sjQ_uLw9xdxRSSKOWPU iInA4BcBQGE1jScjZ8RJI&s=FzmDW_htqLOYXJcADoR26auoM3KI4yv871lrpR-6ro4&e=