On our Tuesday CCWG call, I raised questions from the BC and IPC about whether the new Mission & Core Values could be interpreted to prevent ICANN from enforcing certain aspects of registrar and registry contracts. 

Here’s how I framed the question:

Under our proposal, Mission and Core Values really matter, since they are the standard by which an IRP could be used to challenge ICANN actions.   Our proposal adds this to ICANN’s Mission in the Bylaws:

ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.

The question is, could the red text be interpreted to prevent ICANN from enforcing RAA requirements on WHOIS?  

Or to prevent ICANN from enforcing a registry’s Public Interest Commitments to restrict registrant activities?

Becky Burr and Greg Shatan seem confident that contract enforcement is NOT a form of “regulation of services”.   But we need to explain why we’re so sure of that, and perhaps add some text to make it abundantly clear.

Also, contracts that are negotiated between ICANN and registry operators may include provisions that are not the result of bottom-up, multistakeholder processes.  Such as the PIC specs, for example.  Could ICANN be prevented from enforcing those provisions under the revised Core Value #5? (below)

Employ open, transparent and bottom-up, multistakeholder policy development processes, led by the private sector, including business stakeholders, civil society, the technical community, and academia that (i) seek input from the public, for whose benefit ICANN shall in all events act, (ii) promote well-informed decisions based on expert advice, and (iii) ensure that those entities most affected can assist in the policy development process

On Tuesday’s call, we discussed developing language clarifying that contract terms and contract enforcement are NOT content regulation.

Below is the reply from Greg Shatan and Becky Burr to our emails, which occurred before the CCWG call. 

We may also want to seek help from our legal team.

From: Becky Burr
Date: Tuesday, August 25, 2015 at 2:04 AM

I’m fine with Greg’s suggestion, that is what we meant

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr@neustar.biz / www.neustar.biz


From: Greg Shatan <gregshatanipc@gmail.com>
Date: Tuesday, August 25, 2015 at 12:17 AM

We (IPC) have always taken the position that contract enforcement is not regulation.  We have discussed this and the highlighted language should not be used to prevent ICANN from enforcing any terms of any contracts, including those relating to WHOIS or PICs.

The essence of "regulation" is that it is a rule or order prescribed by an authority.  A provision that is the result of an agreement between two or more parties is not prescribed.  A consensus policy developed by a multistakeholder community is also not regulation, as it not prescribed solely by ICANN the corporation.

I am confident these are rational and correct views.  However, if you ask me whether I'm concerned that other interpretations will be advanced that would limit WHOIS compliance enforcement and PICS compliance enforcement, then my answer is, yes I am.  I would welcome clarifying language.  That language should be somewhere where it is clear that it must be referred to when interpreting the bylaws.  I'm not sure exactly where that sort of interpretive language or "legislative history" should be, but it's necessary.  Otherwise, I fear we are opening up a whole avenue for new challenges based on novel theories -- one could advance a perfectly decent argument that all consensus policy is regulation, depending on where you draw the line between "ICANN the corporation" and "ICANN the community governance ecosystem."

On another note, I am curious to know more about Leon's thinking that this is interrelated with the Human Rights discussion.  I have to admit I had not thought along those lines before, but I would not be so quick to dismiss it.

Finally, on re-reading the proposed bylaws language for the umpteenth time, I see something an ambiguity that concerns me.  The language reads: ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.

What does the word "they" (4 words from the end) refer to?  Does it refer to "services that use the Internet's unique identifiers" or does it refer to the "unique identifiers" themselves, or both?  I'm confident that it was meant to refer to the services, and that it was not meant to refer to the unique identifiers.  However, there are those who argue that "unique identifiers" (i.e., domain names) are content.  It's a short step from that ambiguity to an argument that would attack the ability to make and enforce policy relating to domain names, at least to the extent that they constitute "content".  This could strike at RPMs, such as UDRP and URS, as well as the WHOIS and PICS issues above.  As a result, I suggest that we revise the language as follows:

ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that SUCH SERVICES carry or provide.

I look forward to discussing these issues further.  I will try to join the call in a couple of hours, but I am on vacation with my family and doing a 2-4 am call from our hotel room is not going to make me very popular tonight or a good travel companion or driver tomorrow....

Greg