I'm flattered (I think) to have my name attached to a proposal.  However, my thinking has evolved with regard to certain parts of the post-Dublin language, "my" proposal and Malcolm's proposal.  I would suggest a version that is in many ways is an amalgamation of these 3.  The first paragraph is most similar to Malcolm's proposal, while the second is most similar to the Post-Dublin proposal.  The third paragraph is taken from the Second Draft Report and from the recommendations of WP1 after the second public comment analysis.  A clean version is below, followed by a version of Becky's chart with an added column for this proposal (a PDF is also attached).  For convenience, I've marked my latest version against Malcolm's rather than my prior version.  As a general rule, I chose versions that had the clearest language and avoided extra phrases that did not seem to add meaning.

Greg

ICANN shall only act in accordance with its Mission.

 

Without in any way limiting the foregoing, ICANN shall not regulate services (i.e. those offered by web servers, mail servers and the like) that use the Internet's unique identifiers or the content that those services carry or provide.

 

The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements.  Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.


2nd Draft Report Language

Post-Dublin Language

Greg Shatan Proposal 2 Nov 2015

Malcolm Hutty Proposal 6 Nov 2015

Greg Shatan Proposal 9 Nov 2015

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.

 

ICANN shall have no power to act strictlyother than in accordance with, and only as reasonably appropriate to achieve its Mission.

 

Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.

 

 

 

 

 

In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.

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 regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.  

 

ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation. 

 

 In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.

ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.

 

 

Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.

 

 

 

ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.

subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars

 

ICANN shall only act strictly[1] in accordance with its Mission.

 

 

 

 

Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of regulate services (i.e. those offered by web servers, mail servers and the like)[2] that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate[3] or the content that those services carry or provide.

 

The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements.[4]  Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.[5]

 

ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.

 

 


[1] I have not accepted Malcolm’s addition of “strictly,” since this will be construed to mandate the most restrictive and conservative interpretation possible and thus make the bylaw overly inflexible.

[2] This is taken from an email from Malcolm Hutty, as a description of what is meant by “services” in this context.  Due to the variety of meanings that “services” can have, it is necessary to avoid ambiguity.

[3] Once the nature of the “services” is clarified, the nature of their “use” no longer needs to be clarified.

[4] This is taken almost verbatim from the Second Draft Report, para. 158.  Since it is a direct comment on the contents of the Bylaw, it should be reflected in the draft Bylaw.  Once this is here, Malcolm’s last sentence is no longer needed.

[5] This is a recommendation taken from the “Comment Summary PRINCIPLES” analysis prepared by WP1 after the second Public Comment period.



On Mon, Nov 9, 2015 at 7:09 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
All - 

In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."  

While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain.  The language has been in the proposed Mission Statement since our Frankfurt meeting last January.  Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars.  On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).   

The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue.   (Another approach, which I floated, was strongly criticized.)  As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws.  I look forward to a fruitful discussion in 12 hours!


2nd Draft Report Language

 

Post-Dublin Language

 

Greg Shatan Proposal 2 Nov 2015

Malcolm Hutty Proposal 6 Nov 2015

 

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.

 

ICANN shall have no power to act strictly other than in accordance with, and only as reasonably appropriate to achieve its Mission.

 

Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.

 

 

 

 

 

In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.

 

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 regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.  

 

ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation. 

 

 In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.

ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.

 

 

Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.

 

 

 

ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.

subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars

 






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


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