On 23/11/2015 21:18, Burr, Becky wrote:
Beyond that, the language of 3.18 in question imposes obligations on /registrars/ – maintain an abuse point of contact, investigate allegations regarding illegal activities, take appropriate action, so I don’t think that amounts to regulating registrants. I also agree that there are situations in which illegal activity could impact the stability and security of the Internet’s unique identifiers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANN’s Mission.
I agree with this analysis, and a fortiori it doesn't amount to regulating the Internet services (as defined) that registrants run, which is actually what the text on the table would prohibit. I think we're rather forgetting how this text will be used: it will be for the Board to interpret it, and (if there is a challenge on a particular issue) for the IRP to rule as to whether ICANN has acted outside the authorised scope of its Mission. The cloud of obfuscations in this thread simply don't amount to a credible concern with this text; they only go to show that the authors are incapable of applying systematic analysis to Bylaws language. The IRP, by contrast, will certainly make a clear distinction between obligations imposed on registrars and those imposed on registrants, between obligations that aim to constrain the content on a web site and those that don't implicate such content. At least, if the IRP panel is incapable of making such basic distinctions, the entire system of governance is doomed. Given the above explanation of why 3.18 is permissible, it is surely completely fanciful to suggest that the Board would drop 3.18, or that the IRP would tell the Board that enforcing is 3.18 is ultra vires. 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