Re: [CCWG-ACCT] Board comments on the Mission statement
Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
Thatâs an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its âdirect useâ, but also that the manner in which is indirectly is used. I canât see how the âindirectâ use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If thatâs not at least an âindirectâ use, I donât know what is.   While I agree with your conclusion, I donât agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the âno regulationâ sentence.Â
Bradley
From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâs Mission.
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 / <http://www.neustar.biz>neustar.biz
From: Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com
, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Gregâs resposposponse below. Miltonâs position that an en existinting provision of the RAA is out of the scope of ICANNâââ¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANNâs missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <<mailto:milton@gatech.edu>milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA):
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which
it is directly or indirectly used
infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com <http://www.davidpost.com %20/> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= =================================================================This message is the property of Time Warner Inc. and is intended only for the use of theaddressee(s) and may be legally privileged and/or confidential. If the reader of this messageis not the intended recipient, or the employee or agent responsible to deliver it to the intendedrecipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding,or any method of copying of this information, and/or the taking of any action in reliance onthe information herein is strictly prohibited except by the intended recipient or those to whomhe or she intentionally distributes this message. If you have received this communication inerror, please immediately notify the sender, and delete the original message and any copiesfrom your computer or storage system. Thank you.================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com <http://www.davidpost.com /> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Becky, While I agree with your note(s) on the subject, there is caveat. So first, the constraint on strings is in the registry-specific string-space. A registrar, acting for a registrant, may register a string, but may choose to cause the registered string not to resolve to any resource, in particular an A record for the associated NAME. The duty to others is not contingent upon the registrar providing sufficient data (at least one NS record, producing an eventual A record) to support resolution. To argue, as some are, that this duty attaches to the resolved resource, aka "the website", misunderstands the point at which duty to others arises in requesting the allocation of a string from a registry operator. We have an experience with the Fast Flux Working Group, a GNSOC approved activity lead miserably (which is neither here nor there), looked upon the dynamic behavior of names-to-addresses resolutions, and concluded somewhat chaotically that when some registries offer "rapid update" it is not a harm, and when some registrants offer "fast flux networks" it is a harm. I suggest that the static properties of strings -- their similarities to trademarks and so on, our policies are (a) ab initio, and so hard to misunderstand unintentionally in the present -- and that for the dynamic properties of strings we do policy a means by which the resources associated with a NAME are concealed, though not as clearly as we policy the static properties of strings. Do we policy web sites for $bad_thing_de_jour? In my opinion, we don't. Do we policy the means by which the existence of $bad_thing_de_jour can be concealed through inconsistency in resolution? In my opinion we do. At least that much our reach extends beyond the static properties of strings and into the dynamic properties of forwards and backwards name-to-address resolution. Eric Brunner-Williams Eugene, Oregon On 11/23/15 10:38 AM, Burr, Becky wrote:
The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the /registration of domain names/ be stretched to construe use of a /web site/(as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.”
Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Thank you.================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. 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Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Thank you.================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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So, take a look at the picket fence (RA Spec 1 and RAA Spec 4) that I just circulated in side by side. (attached again) That is the most comprehensive statement of ICANN’s mission with respect to names. Can we agree to that as the basis for reaching closure on the meaning of the words in the second draft proposal. 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> From: <Mueller>, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Monday, November 23, 2015 at 5:19 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Sorry to throw a monkey wrench into this whole discussion, but ICANN’s sole role in regard to the UDRP is to have established the policy (which has not been reviewed since its establishment, but is now on schedule for review starting as soon as 2016) and to accredit UDRP providers. Unlike URS providers, with which it has at least a cursory contract in the form of a Memo of Understanding, ICANN has no contractual relationship with UDRP providers. It is unclear to what extent, if at all, ICANN monitors the performance of UDRP providers. In any event, it appears that ICANN’s only enforcement tool against a provider found to be enforcing the UDRP in unacceptable ways would be de-accreditation – the “death penalty” option. I point this out not because I approve of this arrangement (indeed, the BC is on record as favoring standard agreements between ICANN and UDRP providers). Rather, I point it out because whatever is done in terms of implementation and enforcement of the UDRP is performed by accredited providers with whom ICANN has no contractual relationship. Further, the only examiner guidance provided on UDRP implementation is published by WIPO – and it is not binding upon other UDRP providers, and indeed is not even binding precedent for WIPO examiners, who are merely supposed to issue decisions that are consistent with the guidance. So while this whole discussion is quite interesting it is not at all clear that any limitation placed on ICANN regarding website content would be effectively transmitted to and enforced against the UDRP providers who actually implement the policy and with whom ICANN has no present contractual relationship. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 5:28 PM To: Mueller, Milton L; Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement So, take a look at the picket fence (RA Spec 1 and RAA Spec 4) that I just circulated in side by side. (attached again) That is the most comprehensive statement of ICANN’s mission with respect to names. Can we agree to that as the basis for reaching closure on the meaning of the words in the second draft proposal. 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> From: <Mueller>, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Monday, November 23, 2015 at 5:19 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Milton, would your goal also be to prevent ICANN from enforcing contracts that include registrant restrictions proposed by the TLD operator? For example, the .BANK registry contract<https://www.icann.org/sites/default/files/tlds/bank/bank-agmt-pdf-25sep14-en...> has this on page 93: Content/Use Restrictions By registering a .bank domain name you agree to be bound by the terms of this Acceptable Use Policy (AUP). In using your domain, you may not: 1. Use your domain for any purposes prohibited by the laws of the jurisdiction(s) in which you do business or any other applicable law. For banking companies specifically, use your domain name for any purposes prohibited by the bank’s charter or license. Let’s say that several major banks spend a billion dollars to convert their branch signage and all marketing materials from .COM to .BANK. Then they observe that .BANK was not enforcing its Content/Use Restrictions against some registrants who were undermining the trust promised by .BANK TLD. Those banks might well demand that ICANN find .BANK in breach of its registry agreement, and I’d expect ICANN to do so. Do you think we should write ICANN’s Mission and Core Values to prohibit ICANN from enforcing this contract? Best, Steve From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Monday, November 23, 2015 at 5:19 PM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>, Steve Metalitz <met@msk.com<mailto:met@msk.com>>, "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Good points Jorge Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Steve DelBianco Gesendet: Montag, 23. November 2015 23:37 An: Mueller, Milton L <milton@gatech.edu>; Burr, Becky <Becky.Burr@neustar.biz>; Metalitz, Steven <met@msk.com>; 'Silver, Bradley' <Bradley.Silver@timewarner.com>; David Post <david.g.post@gmail.com> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, would your goal also be to prevent ICANN from enforcing contracts that include registrant restrictions proposed by the TLD operator? For example, the .BANK registry contract<https://www.icann.org/sites/default/files/tlds/bank/bank-agmt-pdf-25sep14-en...> has this on page 93: Content/Use Restrictions By registering a .bank domain name you agree to be bound by the terms of this Acceptable Use Policy (AUP). In using your domain, you may not: 1. Use your domain for any purposes prohibited by the laws of the jurisdiction(s) in which you do business or any other applicable law. For banking companies specifically, use your domain name for any purposes prohibited by the bank’s charter or license. Let’s say that several major banks spend a billion dollars to convert their branch signage and all marketing materials from .COM to .BANK. Then they observe that .BANK was not enforcing its Content/Use Restrictions against some registrants who were undermining the trust promised by .BANK TLD. Those banks might well demand that ICANN find .BANK in breach of its registry agreement, and I’d expect ICANN to do so. Do you think we should write ICANN’s Mission and Core Values to prohibit ICANN from enforcing this contract? Best, Steve From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Monday, November 23, 2015 at 5:19 PM To: Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>, Steve Metalitz <met@msk.com<mailto:met@msk.com>>, "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. 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+1 CW On 24 Nov 2015, at 10:47, <Jorge.Cancio@bakom.admin.ch> wrote:
Good points
Jorge
Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Steve DelBianco Gesendet: Montag, 23. November 2015 23:37 An: Mueller, Milton L <milton@gatech.edu>; Burr, Becky <Becky.Burr@neustar.biz>; Metalitz, Steven <met@msk.com>; 'Silver, Bradley' <Bradley.Silver@timewarner.com>; David Post <david.g.post@gmail.com> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton, would your goal also be to prevent ICANN from enforcing contracts that include registrant restrictions proposed by the TLD operator? For example, the .BANK registry contract has this on page 93:
Content/Use Restrictions By registering a .bank domain name you agree to be bound by the terms of this Acceptable Use Policy (AUP). In using your domain, you may not: 1. Use your domain for any purposes prohibited by the laws of the jurisdiction(s) in which you do business or any other applicable law. For banking companies specifically, use your domain name for any purposes prohibited by the bank’s charter or license.
Let’s say that several major banks spend a billion dollars to convert their branch signage and all marketing materials from .COM to .BANK. Then they observe that .BANK was not enforcing its Content/Use Restrictions against some registrants who were undermining the trust promised by .BANK TLD. Those banks might well demand that ICANN find .BANK in breach of its registry agreement, and I’d expect ICANN to do so.
Do you think we should write ICANN’s Mission and Core Values to prohibit ICANN from enforcing this contract?
Best, Steve
From: <accountability-cross-community-bounces@icann.org> on behalf of "Mueller, Milton L" <milton@gatech.edu> Date: Monday, November 23, 2015 at 5:19 PM To: Becky Burr <Becky.Burr@neustar.biz>, Steve Metalitz <met@msk.com>, "'Silver, Bradley'" <Bradley.Silver@timewarner.com>, David Post <david.g.post@gmail.com> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain.
--MM
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.)
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
From: <Metalitz>, Steven Metalitz <met@msk.com> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com>, Becky Burr <becky.burr@neustar.biz>, David Post <david.g.post@gmail.com> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here.
Steve Metalitz
From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Thanks Becky,
The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning.
Bradley
From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Bradley,
3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site.
That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority.
The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.”
Becky
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
From: <Silver>, Bradley <Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com> Cc: Becky Burr <becky.burr@neustar.biz>, Alan Greenberg <alan.greenberg@mcgill.ca>, Greg Shatan <gregshatanipc@gmail.com>, "Mueller, Milton L" <milton@gatech.edu>, Accountability Community <accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face.
From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
Well, this is illuminating ...
I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators.
My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.
David
At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectlyis used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence.Â
Bradley
From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN̢۪s Mission.
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
From: Alan Greenberg <alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com>, Greg Shatan <gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu> Cc: Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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+1 Steve. In fact, ICANN needs to strengthen its compliance function further to ensure that new (1000+) TLD Registry Operators and ICANN accredited Registrars are compliant and it has the powers to enforce its RAs and RAAs. Regards, Phil From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Christopher Wilkinson Sent: 24 November 2015 10:43 To: accountability-cross-community@icann.org Accountability Subject: Re: [CCWG-ACCT] Board comments on the Mission statement +1 CW On 24 Nov 2015, at 10:47, <Jorge.Cancio@bakom.admin.ch> wrote: Good points Jorge Von: <mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [mailto:accountability- <mailto:cross-community-bounces@icann.org> cross-community-bounces@icann.org] Im Auftrag von Steve DelBianco Gesendet: Montag, 23. November 2015 23:37 An: Mueller, Milton L < <mailto:milton@gatech.edu> milton@gatech.edu>; Burr, Becky < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz>; Metalitz, Steven < <mailto:met@msk.com> met@msk.com>; 'Silver, Bradley' < <mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>; David Post < <mailto:david.g.post@gmail.com> david.g.post@gmail.com> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, would your goal also be to prevent ICANN from enforcing contracts that include registrant restrictions proposed by the TLD operator? For example, the <https://www.icann.org/sites/default/files/tlds/bank/bank-agmt-pdf-25sep14-en...> .BANK registry contract has this on page 93: Content/Use Restrictions By registering a .bank domain name you agree to be bound by the terms of this Acceptable Use Policy (AUP). In using your domain, you may not: 1. Use your domain for any purposes prohibited by the laws of the jurisdiction(s) in which you do business or any other applicable law. For banking companies specifically, use your domain name for any purposes prohibited by the bank’s charter or license. Let’s say that several major banks spend a billion dollars to convert their branch signage and all marketing materials from .COM to .BANK. Then they observe that .BANK was not enforcing its Content/Use Restrictions against some registrants who were undermining the trust promised by .BANK TLD. Those banks might well demand that ICANN find .BANK in breach of its registry agreement, and I’d expect ICANN to do so. Do you think we should write ICANN’s Mission and Core Values to prohibit ICANN from enforcing this contract? Best, Steve From: < <mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org> on behalf of "Mueller, Milton L" < <mailto:milton@gatech.edu> milton@gatech.edu> Date: Monday, November 23, 2015 at 5:19 PM To: Becky Burr < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz>, Steve Metalitz < <mailto:met@msk.com> met@msk.com>, "'Silver, Bradley'" < <mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>, David Post < <mailto:david.g.post@gmail.com> david.g.post@gmail.com> Cc: Accountability Cross Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: <mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <mailto:accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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 / <http://www.neustar.biz> neustar.biz From: <Metalitz>, Steven Metalitz < <mailto:met@msk.com> met@msk.com> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" < <mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>, Becky Burr < <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz>, David Post < <mailto:david.g.post@gmail.com> david.g.post@gmail.com> Cc: Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From: <mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <mailto:accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [ <mailto:Becky.Burr@neustar.biz> mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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 / <http://www.neustar.biz> neustar.biz From: <Silver>, Bradley < <mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 11:47 AM To: David Post < <mailto:david.g.post@gmail.com> david.g.post@gmail.com> Cc: Becky Burr < <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz>, Alan Greenberg < <mailto:alan.greenberg@mcgill.ca> alan.greenberg@mcgill.ca>, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com>, "Mueller, Milton L" < <mailto:milton@gatech.edu> milton@gatech.edu>, Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [ <mailto:david.g.post@gmail.com> mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectlyis used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ <mailto:david.g.post@gmail.com> mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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 / <http://www.neustar.biz> neustar.biz From: Alan Greenberg < <mailto:alan.greenberg@mcgill.ca> alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < <mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com >, "Mueller, Milton L" < <mailto:milton@gatech.edu> milton@gatech.edu> Cc: Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: <mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <mailto:accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L < <mailto:milton@gatech.edu> milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...> https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at <mailto:ITServices@timewarner.com> ITServices@timewarner.com ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. 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Milton, we keep coming back to this - what ICANN does is simply not as neat as all that. As per Becky’s email below, the policies related to the domain name itself can also take into account the use of the domain name. In a real world UDRP context, that will include consideration of how the domain is used – i.e. evidence of the website, and bad faith etc. If you want to draw a neat distinction between an ICANN policy extending beyond the domain name to include consideration of the website which resolves to that name, then you’d have to issue a directive to every UDRP panelist to not take into account what “content” is resident on that website. For example, EFF recently successfully used a UDRP to capture a domain which was used in connection with a website surreptitiously installing malicious software on the computers of unsuspecting visitors, and redirecting infected visitors to the EFF’s official website. The nature of the content on the website was instructive in the panel finding that the domain name was used in bad faith. See: http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2015-1628 From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, November 23, 2015 5:19 PM To: Burr, Becky; Metalitz, Steven; Silver, Bradley; David Post Cc: Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. 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Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Bradley, you seem intent on manufacturing a disagreement where none exists. Of course a UDRP finding of illegitimate domain name use must take into account how the name is used. But the object of policy is not the content of the website per se but the domain name registration; i.e., the UDRP doesn’t tell the web site owner to change the content of their site, it takes away the name. From: Silver, Bradley [mailto:Bradley.Silver@timewarner.com] Sent: Monday, November 23, 2015 5:37 PM To: Mueller, Milton L; Burr, Becky; Metalitz, Steven; David Post Cc: Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Milton, we keep coming back to this - what ICANN does is simply not as neat as all that. As per Becky’s email below, the policies related to the domain name itself can also take into account the use of the domain name. In a real world UDRP context, that will include consideration of how the domain is used – i.e. evidence of the website, and bad faith etc. If you want to draw a neat distinction between an ICANN policy extending beyond the domain name to include consideration of the website which resolves to that name, then you’d have to issue a directive to every UDRP panelist to not take into account what “content” is resident on that website. For example, EFF recently successfully used a UDRP to capture a domain which was used in connection with a website surreptitiously installing malicious software on the computers of unsuspecting visitors, and redirecting infected visitors to the EFF’s official website. The nature of the content on the website was instructive in the panel finding that the domain name was used in bad faith. See: http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2015-1628 From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, November 23, 2015 5:19 PM To: Burr, Becky; Metalitz, Steven; Silver, Bradley; David Post Cc: Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. 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Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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The object of the policy is not purely the domain name registration – it is how that registration is used, which practically means one cannot address an actionable infringement without some sort of infringing use. And without a website (even a blank one), there is a question whether there is any “use” to begin with. We are in agreement that the UDRP is completely consistent with ICANN’s mission. I am worried however, that these distinctions about “domain names per se” and their use in connection with an underlying website don’t translate into what the UDRP is, in reality, or as a matter of policy. And to Phil Corwin’s point about the relevance of the UDRP to this discussion - since ICANN obliges registrars to comply with the UDRP process, the UDRP must be consistent with ICANN’s mission. * 3.8 Domain-Name Dispute Resolution. During the Term of this Agreement, Registrar shall have in place a policy and procedures for resolution of disputes concerning Registered Names. Until ICANN adopts an alternative Consensus Policy or other Specification or Policy with respect to the resolution of disputes concerning Registered Names, Registrar shall comply with the Uniform Domain Name Dispute Resolution Policy ("UDRP") identified on ICANN's website (www.icann.org/general/consensus-policies.htm), as may be modified from time to time. Registrar shall also comply with the Uniform Rapid Suspension ("URS") procedure or its replacement, as well as with any other applicable dispute resolution procedure as required by a Registry Operator for which Registrar is providing Registrar Services. From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, November 23, 2015 5:50 PM To: Silver, Bradley; Burr, Becky; Metalitz, Steven; David Post Cc: Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Bradley, you seem intent on manufacturing a disagreement where none exists. Of course a UDRP finding of illegitimate domain name use must take into account how the name is used. But the object of policy is not the content of the website per se but the domain name registration; i.e., the UDRP doesn’t tell the web site owner to change the content of their site, it takes away the name. From: Silver, Bradley [mailto:Bradley.Silver@timewarner.com] Sent: Monday, November 23, 2015 5:37 PM To: Mueller, Milton L; Burr, Becky; Metalitz, Steven; David Post Cc: Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Milton, we keep coming back to this - what ICANN does is simply not as neat as all that. As per Becky’s email below, the policies related to the domain name itself can also take into account the use of the domain name. In a real world UDRP context, that will include consideration of how the domain is used – i.e. evidence of the website, and bad faith etc. If you want to draw a neat distinction between an ICANN policy extending beyond the domain name to include consideration of the website which resolves to that name, then you’d have to issue a directive to every UDRP panelist to not take into account what “content” is resident on that website. For example, EFF recently successfully used a UDRP to capture a domain which was used in connection with a website surreptitiously installing malicious software on the computers of unsuspecting visitors, and redirecting infected visitors to the EFF’s official website. The nature of the content on the website was instructive in the panel finding that the domain name was used in bad faith. See: http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2015-1628 From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, November 23, 2015 5:19 PM To: Burr, Becky; Metalitz, Steven; Silver, Bradley; David Post Cc: Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement It should be evident from everything that has been written by David, myself, Malcolm and many others that the target of the mission limitation is not the UDRP or domain name – trademark conflicts. In the UDRP the object of policy and enforcement is the domain name registration. Our goal is to limit ICANN to policies related to the domain name itself, and to prevent that power from being extended to web site content or other services or activities that might be associated with a domain. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 4:40 PM To: Metalitz, Steven; 'Silver, Bradley'; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I think we agree that the UDRP policy takes into account the use of a registered string to infringe a third party’s rights – either demonstrated by use of the domain, efforts to extort, or a pattern of offending conduct. That falls within the picket fence provision that (Spec 4 in the 2013 RAA) permits ICANN to enforce policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) 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> From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Monday, November 23, 2015 at 2:50 PM To: "'Silver, Bradley'" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement A successful UDRP case requires proof of bad faith registration AND USE of a domain name. Others are far more expert than I am on UDRP jurisprudence ( as contrasted with its genesis and development), but I thought that jurisprudence clearly established that the activities that take place on (e.g.) a website to which that domain name resolves is highly relevant (indeed, sometimes probative) of whether the domain name has been USED in bad faith. It would be anomalous if, in the provision that is now 3.7.7.9 of the RAA, which as Becky has demonstrated was first included in the RAA almost contemporaneously with the adoption of the UDRP, the phrase “use of a registered name” meant something markedly different than it means in the UDRP, and even odder if it meant something much narrower, especially considering that the RAA provision(in contrast to UDRP) refers to “direct or indirect” use. Finally, as Bradley points out, this is a contract provision, one that has been in place (in the case of 3.7.7.9 at least) ever since there were contracts between ICANN and accredited registrars; so the notion that we would now seek to place the enforcement of that provision off-limits to ICANN under the banner of “enhancing ICANN accountability” suggests to me that we have gone seriously off track here. Steve Metalitz From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Monday, November 23, 2015 2:38 PM To: Burr, Becky; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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On 23/11/2015 22:50, Mueller, Milton L wrote:
Bradley, you seem intent on manufacturing a disagreement where none exists. Of course a UDRP finding of illegitimate domain name use must take into account how the name is used. But the object of policy is not the content of the website per se but the domain name registration; i.e., the UDRP doesn’t tell the web site owner to change the content of their site, it takes away the name.
I agree with this. There is a world of difference between the object of the policy, and evidence used to adduce compliance with it. Consider an example. Suppose that there is a US corporation, Banana Inc, that makes consumer electronics products. Suppose that there also is a British company, Banana Ltd, that publishes music. Banana Inc registers Banana.com. Banana Ltd brings a UDRP case alleging infringement of its rights. As part of its investigation of the evidence, the UDRP panel looks to see whether www.banana.com contains evidence of the promotion of consumer electronics goods (which it will take as evidence of a good faith use), or a simply a sign saying "Check here soon for some juicy tunes!" (which it will take as evidence of bad faith). The UDRP exists to ensure that registrants do not register strings that they are not entitled to register, not to control the use of which web sites is put. Does anybody seriously dispute that my fictional panel, in acting as described, is simply trying to discover whether Banana Inc has registered this domain in good faith as a domain it is entitled to register, or whether instead it is registered in bad faith, to exort someone with legitimate rights? Does anybody seriously want to argue that the UDRP panel, by considering that evidence, is actually attempting to regulate whether web sites may be used to carry music? Unless you wish to argue that the latter is a reasonable contention, there is no basis in the text before us for supposing that it would interfere in any way with this UDRP practice. If either party were silly enough to bring an IRP case complaining that the UDRP was prohibited under this clause from looking at the web site for evidence to support a finding of good or bad faith, I am quite sure they would be told that they were...bananas. 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
First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANN’s “take it or don’t sign” negotiating ultimatums, this doesn’t fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement. 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. The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ appropriate response” is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce. 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. 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Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about. The language below is all from the latest draft, except for the added language IN ALL CAPS: *************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANNs Mission is to coordinate the development and implementation of policies: For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System; That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internets unique names systems. . . . ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internets unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM. lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission. ************************ The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org, nor is it the kind of harm that somehow threatens the stability or security of the DNS. David d At 04:18 PM 11/23/2015, Burr, Becky wrote:
First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANNâs âtake it or donât signâ negotiating ultimatums, this doesnât fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement.
Beyond that, the language of 3.18 in question imposes obligations on registrars maintain an abuse pooint of contact, investigate allegations regarding illegal activities, take appropriate action, so I donât 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 Internetâs unique identifiers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANNâs Mission.
The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an â appropriate responseâ is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce.
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 / <http://www.neustar.biz>neustar.biz
From: <Silver>, Bradley <<mailto:Bradley.Silver@timewarner.com>Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <<mailto:becky.burr@neustar.biz>becky.burr@neustar.biz>, David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com> Cc: Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com>, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu>, Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
Thanks Becky,
The question is not whether ICANNâs authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, letâs assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And letâs further assume that such use is something that a reasonable person might argue impacts ICANNâs ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANNâs activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANNâs mission with language that has imprecise meaning.
Bradley
From: Burr, Becky [<mailto:Becky.Burr@neustar.biz>mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Bradley,
3.7.7.9 speaks about the registration and use of a âRegistered Name.â A "Registered Name" refers to a domain name within the domain of a gTLD about which a <gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.â To me, that refers to registration and use of a string, and not a web site.
That is also consistent with the registrar form of the âpicket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrarâs form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name âin bad faithâ as defined in the UDRP), it is within ICANNâs authority.
The question is, could ICANNâs authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.â
Becky
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 /<http://www.neustar.biz>neustar.biz
From: <Silver>, Bradley <<mailto:Bradley.Silver@timewarner.com>Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com> Cc: Becky Burr <<mailto:becky.burr@neustar.biz>becky.burr@neustar.biz>, Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com>, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu>, Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
There is a difference between ICANN having power to âenforce local lawsâ, as you put it, and ICANNâs ability to enforce its agreements, which have as a reference point, the conduct of âillegal activityâ via an indirect use of a domain name. Letâs be very clear we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which donât make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any âdirect or indirectâ regulation will be used to argue that these contractual provisions are outside ICANNâs mission on their face.
From: David Post [<mailto:david.g.post@gmail.com>mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
Well, this is illuminating ...
I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators.
My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.
David
At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
Thatâs an overly narrow reading of RA RAA 3.7.7.9 à - its not only that the registration of the Registered Name infringes or its âdirect useâ, but also that the manner in which is indirectly is used.à I canât see how the âiâ¬Åindirectâ use of the domain cannot also be attriibuted to infringing uses on the website to which the domain points. à If thatâs not at least an âind¬Åindirectâ use, I donât know what is. à à à While I agree with your conclusion, I donât agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the âno regulationâ sentence.à br> Bradley
From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNââ¢s Mission.
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 / <http://www.neustar.biz>neustar.biz
From: Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com
, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support GregÃÆâs resposposponse below. sp; MiltonÃÆâs position that an en existinting pr provision of the RAA is out of the scope of ICANNÃÆââ¬Ã¢Ã¢Ã¢s mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANNÃÆâs missionion in a manner that refleflects its cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <<mailto:milton@gatech.edu>milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA):
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which
it is directly or indirectly used
infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0-25A0-25A0-25A0-25A0-25A0-25A0&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=ywg8uVPfTYGqvglA4unTV31GGxchC7v0aAGWrgZkGwI&e=>http://tinyurl.com/c327w2n
music <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic-25A0&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=-Riw1v0au2L-2i3gFKAtEkYl56nN9CXxfpAuLQLoMGo&e=>http://tinyurl.com/davidpostmusic publications etc. <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-2520_&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=C0EhJhpDbLpEFEZrabNoThQ_PqYnGoH9H9Ov6mccnu8&e=>http://www.davidpost.com
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music <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic-25A0&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=-Riw1v0au2L-2i3gFKAtEkYl56nN9CXxfpAuLQLoMGo&e=>http://tinyurl.com/davidpostmusic publications etc. <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B_&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=lr-1bErJrSUdw4bKPYQHlyQJnyZmCN5O3BLA8oN7OPY&e=>http://www.davidpost.com
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Does your proposed language permit all of the activities permitted under the RAA and RA Consensus Policy spec? Specifically, are any of these items excluded: 1. . Consensus Policies shall relate to one or more of the following: a. Issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); b. Runctional and performance specifications for the provision of Registrar and Registry Services; c. Security and Stability of the registry database for the TLD; d. Registrar and registry policies reasonably necessary to implement Consensus Policies relating to a gTLD registry, registry operations, or registrars; e. Resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including (with respect to registrars) where such policies take into account use of the domain names); or f. Restrictions on cross-ownership of registry operators and registrars or resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 2. Such categories of issues referred to in Section 1 above shall include, without limitation: a. Principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); b. Prohibitions on warehousing of or speculation in domain names by registries or registrars; c. Reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); d. Maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; e. Procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility (i) for serving registered domain names in a TLD affected by such a suspension or termination and (ii) among continuing registrars of the Registered Names sponsored in a TLD by a registrar losing accreditation; and (iii) the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 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> From: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Date: Monday, November 23, 2015 at 6:25 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about. The language below is all from the latest draft, except for the added language IN ALL CAPS: *************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies: For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System; That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. . . . ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internet’s unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM. lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission. ************************ The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org, nor is it the kind of harm that somehow threatens the stability or security of the DNS. David d At 04:18 PM 11/23/2015, Burr, Becky wrote: First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANN’s “take it or don’t sign†negotiating ultimatums, this doesn’t fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement. Beyond that, the language of 3.18 in question imposes obligations on registrars – maintain an abuse pooint 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. The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ appropriate response†is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce. 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> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz ] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.†A "Registered Name" refers to a domain name within the domain of a gTLD…about which a <gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.†To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith†as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.†Becky 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> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local lawsâ€, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity†via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect†regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com ] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RA RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “i€œindirect†use of the domain cannot also be attriibuted to infringing uses on the website to which the domain points.  If that’s not at least an “ind¬Å“indirect†use, I don’t know what is.   ‚  While I agree with your conclusion, I don’t agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. br> Bradley From: David Post [<mailto:david.g.post@gmail.com>mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâ€â„„¢s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. sp; Milton’s position that an en existinting pr provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QBCAhC_zhJDaNneN7OuI3QFjWAvYNcpUsPtON5AqeEI&s=dqN5kXq6Hmmi7ZEJTPox5CML9BPwIHA3TOoJHYDatQs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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I think all of these would be permissible under the language proposed. That is, I think ICANN can continue to make policies in these areas, because all are reasonably appropriate to the Mission (coordinate the development and implementation of policies for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System), provided that they were the subject of a consensus multi-stakeholder process. And none of them involve imposing contractual conditions or obligations on the conduct of registrants except in circumstances where the registration causes harm to third parties ( e.g., "resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including (with respect to registrars) where such policies take into account use of the domain names," ) or involves harm to "the stable and secure operation of the DNS (e.g., "Maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers"). David At 06:38 PM 11/23/2015, Burr, Becky wrote:
Does your proposed language permit all of the activities permitted under the RAA and RA Consensus Policy spec? Specifically, are any of these items excluded:
1. . Consensus Policies shall relate to one or more of the following: a. Issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); b. Functional and performance specifications for the provision of Registrar and Registry Services; c. Security and Stability of the registry database for the TLD; d. Registrar and registry policies reasonably necessary to implement Consensus Policies relating to a gTLD registry, registry operations, or registrars; e. Resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including (with respect to registrars) where such policies take into account use of the domain names); or f. Restrictions on cross-ownership of registry operators and registrars or resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.
2. Such categories of issues referred to in Section 1 above shall include, without limitation: a. Principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); b. Prohibitions on warehousing of or speculation in domain names by registries or registrars; c. Reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); d. Maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; e. Procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility (i) for serving registered domain names in a TLD affected by such a suspension or termination and (ii) among continuing registrars of the Registered Names sponsored in a TLD by a registrar losing accreditation; and (iii) the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.
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 / <http://www.neustar.biz>neustar.biz
From: David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com> Date: Monday, November 23, 2015 at 6:25 PM To: Becky Burr <<mailto:becky.burr@neustar.biz>becky.burr@neustar.biz> Cc: "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com>Bradley.Silver@timewarner.com>, Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com>, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu>, Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about.
The language below is all from the latest draft, except for the added language IN ALL CAPS:
*************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANNâs Mission is to coordinate the development and implementation of policies:
For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System;
That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internetâs unique names systems. . . .
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission.
ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internetâs unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM.
lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission.
************************
The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org, nor is it the kind of harm that somehow threatens the stability or security of the DNS.
David
d
At 04:18 PM 11/23/2015, Burr, Becky wrote:
First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANNâs âtake it or donâdonââ¬t signâ negotiating ultimatums, this doesnesnât fall into that bucket as far as I am concerned.ed. And I agree with the general principle that contracts should be enforceable by the parties to the agreement.
Beyond that, the language of 3.18 in question imposes obligations on registrars maintain aan abuse pooint of contact, investigate allegations regarding illegal activities, take appropriate action, so I donât 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 Internetâs unique identifiers (e.g., particulcularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANNâs Mission.
The problem, of course,se, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an â appropriate respoponseâ is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce.
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 / <http://www.neustar.biz>neustar.biz
From: <Silver>, Bradley <<mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <<mailto:becky.burr@neustar.biz>becky.burr@neustar.biz
, David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com > Cc: Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca , Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com , "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu>, Accountability Community <<mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
Thanks Becky,
The question is not whether ICANNââ¬s authority to enforce policies regarding resolutionns of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, letâs as assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And letâs further assume that such uh use is something that a reasonable person might argue impacts ICANNâs ability to ensure the stable and securcure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANNâs activity could be ie impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANNâs mission wn with language that has imprecise meaning.
Bradley
From: Burr, Becky [<mailto:Becky.Burr@neustar.biz>mailto:Becky.Burr@neustar.biz ] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Bradley,
3.7.7.9 speaks about the registration and use of a âRegistered Name.â A "Registered Name" refers to a domain name within the domain of a gTLD about which a <gTLDD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.â To me, that refers to registration and use of a string, and not a web site.
That is also consistent with the registrar form of the âpicket fencece," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrarâs fs form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name âin bad faithâ as defined in the UDRP), it, it is within ICANNâs authority. sp; The question is, could ICANNâs authority to to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.â
Becky
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 /<http://www.neustar.biz>neustar.biz
From: <Silver>, Bradley <<mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com > Cc: Becky Burr <<mailto:becky.burr@neustar.biz>becky.burr@neustar.biz
, Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca , Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com , "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu>, Accountability Community <<mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
There is a difference between ICANN having power to âenforce local lawsâ, as yas you put it, and ICANNâs ability to enforce its agregreements, which have as a reference point, the conduct of âillegal activityâ via an indirect use of of a domain name. Letâs be very cy clear we are talking about the latter; the question off whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which donââ¢t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any âdirect or indirectâ regulatulation will be used to argue that these contractual provisions are outside ICANNâs mission on their face.
From: David Post [<mailto:david.g.post@gmail.com>mailto:david.g.post@gmail.com ] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
Well, this is illuminating ...
I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators.
My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.
David
At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
Thatâs an overly narrow reading of RA RAA AA 3.7.7.9 à - its not only that the registration of thee Registered Name infringes or its âdirect useâ¢, but also that the manner in which is indirectly< is used.à I canât see how the â âiâ¬à âindirectâ use of the domaindomain cannot also be attriibuted to infringing uses on the website to which the domain points. à If thatâs¬â¢s not at least an âindˆ âindirectâ157; use, I donât know what is. à à à â à While I agree with your conclusion, I donât â¢t agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the âno regulationâ sentence.Ãe.à br> Bradley From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNÃÆââ¢s M¢s Mission.
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 / <http://www.neustar.biz>neustar.biz
From: Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com
, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support GregÃÆÃâÃâs resposposponse below.elow. sp; MiltonÃÆÃâÃâs position that an en n en existinting pr provision of the RAA is out of the scope of ICANNÃÆÃâÃââ¬ÃÆâÃÆâÃÃÃââs mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANNÃÆÃâÃâs missionion in a manner that refleflects its cu cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <<mailto:milton@gatech.edu>milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA):
3.7.7.9 The Registered Name Holder shall
represent that, to the best of the
Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
i object to this newly-proposed language. This is truly being proposed at the 12th hour, as we already have our Third Draft in front of us for review. Second, it is an entirely new formulation of alleged boundaries around ICANN's mission. It bears no resemblance to any prior generally accepted, or even generally considered formulation of ICANN's mission. Instead, it is based on a novel theory of what falls inside and outside of ICANN's mission, or more accurately, what the author wishes fell inside or outside of ICANN's mission. This might be appropriate or interesting in a theoretical paper or a think-tank document, but now is not the time to try and bake theories about the underpinnings of ICANN's mission into the Bylaws. On substance, this proposal raises a host of problems. The concept of a "domain causing harm to third parties" is at best a crude and off-target representation of an idea -- what constitutes "harm"? How does that relate to any current or future policy relating to domain disputes, none of which talk about harm as such? There's really no time to consider the issues in depth without sacrificing the ability to review the draft of our Third Draft Report, which cannot be a sacrifice any of us should be asked to make. Even if we did not have the draft in front of us, the time left to consider this is completely inadequate. The example given also has some dangerous infirmities, but I've run out of time to talk about them since our call's about to start. Greg On Mon, Nov 23, 2015 at 6:25 PM, David Post <david.g.post@gmail.com> wrote:
Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about.
The language below is all from the latest draft, except for the added language IN ALL CAPS:
*************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System;
That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. . . .
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission.
ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internet’s unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM.
lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission.
************************
The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org, nor is it the kind of harm that somehow threatens the stability or security of the DNS.
David
d
At 04:18 PM 11/23/2015, Burr, Becky wrote:
First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANN’s “take it or don’t sign†negotiating ultimatums, this doesn’t fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement.
Beyond that, the language of 3.18 in question imposes obligations on *registrars* – maintain an abuse pooint 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.
The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ appropriate response†is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce.
*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>
From: <Silver>, Bradley < Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <becky.burr@neustar.biz >, David Post < david.g.post@gmail.com > Cc: Alan Greenberg <alan.greenberg@mcgill.ca >, Greg Shatan < gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu>, Accountability Community < accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
Thanks Becky,
The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct *involving* use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather *involves* the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning.
Bradley
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz> ] *Sent:* Monday, November 23, 2015 1:38 PM *To:* Silver, Bradley; David Post *Cc:* Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
Bradley,
3.7.7.9 speaks about the registration and use of a “Registered Name.†A "Registered Name" refers to a domain name within the domain of a gTLD…about which a <gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.†To me, that refers to registration and use of a string, and not a web site.
That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of *disputes about registrations* (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith†as defined in the UDRP), it is within ICANN’s authority.
The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the *registration of domain names* be stretched to construe use of a *web site* (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.â€
Becky
*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> * *From: *<Silver>, Bradley < Bradley.Silver@timewarner.com> *Date: *Monday, November 23, 2015 at 11:47 AM *To: *David Post <david.g.post@gmail.com > *Cc: *Becky Burr <becky.burr@neustar.biz >, Alan Greenberg < alan.greenberg@mcgill.ca >, Greg Shatan <gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu>, Accountability Community < accountability-cross-community@icann.org> *Subject: *RE: [CCWG-ACCT] Board comments on the Mission statement
There is a difference between ICANN having power to “enforce local laws†, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity†via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect†regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face.
*From:* David Post [mailto:david.g.post@gmail.com <david.g.post@gmail.com> ] *Sent:* Monday, November 23, 2015 11:22 AM *To:* Silver, Bradley *Cc:* Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* RE: [CCWG-ACCT] Board comments on the Mission statement
Well, this is illuminating ...
I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators.
My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.
David
At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
That’s an overly narrow reading of RA RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is *indirectly* is used. I can’t see how the “i€œindirect†use of the domain cannot also be attriibuted to infringing uses on the website to which the domain points.  If that’s not at least an “ind¬Å“indirect†use, I don’t know what is.   ‚  While I agree with your conclusion, I don’t agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. br> Bradley
*From:* David Post [ <david.g.post@gmail.com> mailto:david.g.post@gmail.com <david.g.post@gmail.com>] *Sent:* Monday, November 23, 2015 10:37 AM *To:* Burr, Becky *Cc:* Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâ€â„„¢s Mission.
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>
From: Alan Greenberg <alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com>, Greg Shatan < gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu> Cc: Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Greg’s resposposponse below. sp; Milton’s position that an en existinting pr provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
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Actually Greg, as you probably know, David’s proposal bears a closer resemblance to the original language in draft 2 than yours does, although it looks as if he made an attempt to incorporate your language about “software processes” From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, November 24, 2015 1:00 AM To: David Post <david.g.post@gmail.com> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement i object to this newly-proposed language. This is truly being proposed at the 12th hour, as we already have our Third Draft in front of us for review. Second, it is an entirely new formulation of alleged boundaries around ICANN's mission. It bears no resemblance to any prior generally accepted, or even generally considered formulation of ICANN's mission. Instead, it is based on a novel theory of what falls inside and outside of ICANN's mission, or more accurately, what the author wishes fell inside or outside of ICANN's mission. This might be appropriate or interesting in a theoretical paper or a think-tank document, but now is not the time to try and bake theories about the underpinnings of ICANN's mission into the Bylaws. On substance, this proposal raises a host of problems. The concept of a "domain causing harm to third parties" is at best a crude and off-target representation of an idea -- what constitutes "harm"? How does that relate to any current or future policy relating to domain disputes, none of which talk about harm as such? There's really no time to consider the issues in depth without sacrificing the ability to review the draft of our Third Draft Report, which cannot be a sacrifice any of us should be asked to make. Even if we did not have the draft in front of us, the time left to consider this is completely inadequate. The example given also has some dangerous infirmities, but I've run out of time to talk about them since our call's about to start. Greg On Mon, Nov 23, 2015 at 6:25 PM, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> wrote: Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about. The language below is all from the latest draft, except for the added language IN ALL CAPS: *************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies: For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System; That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. . . . ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internet’s unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM. lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission. ************************ The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org<http://davidpost.org>) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org<http://davidpost.org>, nor is it the kind of harm that somehow threatens the stability or security of the DNS. David d At 04:18 PM 11/23/2015, Burr, Becky wrote: First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANN’s “take it or don’t sign†negotiating ultimatums, this doesn’t fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement. Beyond that, the language of 3.18 in question imposes obligations on registrars – maintain an abuse pooint 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. The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ appropriate response†is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz ] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.†A "Registered Name" refers to a domain name within the domain of a gTLD…about which a <gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.†To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith†as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.†Becky J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932<tel:%2B1.202.533.2932> Mobile:+1.202.352.6367<tel:%2B1.202.352.6367> /neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws†, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity†via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect†regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com ] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RA RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “i€œindirect†use of the domain cannot also be attriibuted to infringing uses on the website to which the domain points.  If that’s not at least an “ind¬Å“indirect†use, I don’t know what is.   ‚  While I agree with your conclusion, I don’t agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. br> Bradley From: David Post [ <mailto:david.g.post@gmail.com> mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâ€â„„¢s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. sp; Milton’s position that an en existinting pr provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Milton, I have no idea what you're talking about. The language in ALL CAPS in new section (B) -- which is what I'm responding to -- bears absolutely no resemblance to any language in the second draft, where the provision ends with the word "provide." But you probably know that. Greg On Tue, Nov 24, 2015 at 1:07 AM, Mueller, Milton L <milton@gatech.edu> wrote:
Actually Greg, as you probably know, David’s proposal bears a closer resemblance to the original language in draft 2 than yours does, although it looks as if he made an attempt to incorporate your language about “software processes”
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Tuesday, November 24, 2015 1:00 AM *To:* David Post <david.g.post@gmail.com> *Cc:* Accountability Cross Community < accountability-cross-community@icann.org>
*Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
i object to this newly-proposed language. This is truly being proposed at the 12th hour, as we already have our Third Draft in front of us for review. Second, it is an entirely new formulation of alleged boundaries around ICANN's mission. It bears no resemblance to any prior generally accepted, or even generally considered formulation of ICANN's mission. Instead, it is based on a novel theory of what falls inside and outside of ICANN's mission, or more accurately, what the author wishes fell inside or outside of ICANN's mission. This might be appropriate or interesting in a theoretical paper or a think-tank document, but now is not the time to try and bake theories about the underpinnings of ICANN's mission into the Bylaws.
On substance, this proposal raises a host of problems. The concept of a "domain causing harm to third parties" is at best a crude and off-target representation of an idea -- what constitutes "harm"? How does that relate to any current or future policy relating to domain disputes, none of which talk about harm as such? There's really no time to consider the issues in depth without sacrificing the ability to review the draft of our Third Draft Report, which cannot be a sacrifice any of us should be asked to make. Even if we did not have the draft in front of us, the time left to consider this is completely inadequate.
The example given also has some dangerous infirmities, but I've run out of time to talk about them since our call's about to start.
Greg
On Mon, Nov 23, 2015 at 6:25 PM, David Post <david.g.post@gmail.com> wrote:
Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about.
The language below is all from the latest draft, except for the added language IN ALL CAPS:
*************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System;
That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. . . .
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission.
ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internet’s unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM.
lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission.
************************
The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org, nor is it the kind of harm that somehow threatens the stability or security of the DNS.
David
d
At 04:18 PM 11/23/2015, Burr, Becky wrote:
First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANN’s “take it or don’t sign†negotiating ultimatums, this doesn’t fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement.
Beyond that, the language of 3.18 in question imposes obligations on *registrars* – maintain an abuse pooint 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.
The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ appropriate response†is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce.
*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>
From: <Silver>, Bradley < Bradley.Silver@timewarner.com> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <becky.burr@neustar.biz >, David Post < david.g.post@gmail.com > Cc: Alan Greenberg <alan.greenberg@mcgill.ca >, Greg Shatan < gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu>, Accountability Community < accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
Thanks Becky,
The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct *involving* use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather *involves* the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning.
Bradley
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz> ] *Sent:* Monday, November 23, 2015 1:38 PM *To:* Silver, Bradley; David Post *Cc:* Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
Bradley,
3.7.7.9 speaks about the registration and use of a “Registered Name.†A "Registered Name" refers to a domain name within the domain of a gTLD…about which a <gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.†To me, that refers to registration and use of a string, and not a web site.
That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of *disputes about registrations* (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith†as defined in the UDRP), it is within ICANN’s authority.
The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the *registration of domain names* be stretched to construe use of a *web site* (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.â€
Becky
*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> * *From: *<Silver>, Bradley < Bradley.Silver@timewarner.com> *Date: *Monday, November 23, 2015 at 11:47 AM *To: *David Post <david.g.post@gmail.com > *Cc: *Becky Burr <becky.burr@neustar.biz >, Alan Greenberg < alan.greenberg@mcgill.ca >, Greg Shatan <gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu>, Accountability Community < accountability-cross-community@icann.org> *Subject: *RE: [CCWG-ACCT] Board comments on the Mission statement
There is a difference between ICANN having power to “enforce local laws†, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity†via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect†regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face.
*From:* David Post [mailto:david.g.post@gmail.com <david.g.post@gmail.com> ] *Sent:* Monday, November 23, 2015 11:22 AM *To:* Silver, Bradley *Cc:* Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* RE: [CCWG-ACCT] Board comments on the Mission statement
Well, this is illuminating ...
I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators.
My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.
David
At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
That’s an overly narrow reading of RA RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is *indirectly* is used. I can’t see how the “i€œindirect†use of the domain cannot also be attriibuted to infringing uses on the website to which the domain points.  If that’s not at least an “ind¬Å“indirect†use, I don’t know what is.   ‚  While I agree with your conclusion, I don’t agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. br> Bradley
*From:* David Post [ <david.g.post@gmail.com>mailto:david.g.post@gmail.com <david.g.post@gmail.com>] *Sent:* Monday, November 23, 2015 10:37 AM *To:* Burr, Becky *Cc:* Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâ€â„„¢s Mission.
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>
From: Alan Greenberg <alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com>, Greg Shatan < gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu> Cc: Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Greg’s resposposponse below. sp; Milton’s position that an en existinting pr provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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I share Greg's concerns. I'm not sure how the addition of a further restriction on ICANNS contracting authority solves the ambiguity of the preceding sentence. Also, how would WHOIS obligations qualify as an meeting the "harm" threshold? Sent from my iPhone On Nov 24, 2015, at 12:59 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: i object to this newly-proposed language. This is truly being proposed at the 12th hour, as we already have our Third Draft in front of us for review. Second, it is an entirely new formulation of alleged boundaries around ICANN's mission. It bears no resemblance to any prior generally accepted, or even generally considered formulation of ICANN's mission. Instead, it is based on a novel theory of what falls inside and outside of ICANN's mission, or more accurately, what the author wishes fell inside or outside of ICANN's mission. This might be appropriate or interesting in a theoretical paper or a think-tank document, but now is not the time to try and bake theories about the underpinnings of ICANN's mission into the Bylaws. On substance, this proposal raises a host of problems. The concept of a "domain causing harm to third parties" is at best a crude and off-target representation of an idea -- what constitutes "harm"? How does that relate to any current or future policy relating to domain disputes, none of which talk about harm as such? There's really no time to consider the issues in depth without sacrificing the ability to review the draft of our Third Draft Report, which cannot be a sacrifice any of us should be asked to make. Even if we did not have the draft in front of us, the time left to consider this is completely inadequate. The example given also has some dangerous infirmities, but I've run out of time to talk about them since our call's about to start. Greg On Mon, Nov 23, 2015 at 6:25 PM, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> wrote: Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about. The language below is all from the latest draft, except for the added language IN ALL CAPS: *************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies: For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System; That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. . . . ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internet’s unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM. lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission. ************************ The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org<http://davidpost.org>) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org<http://davidpost.org>, nor is it the kind of harm that somehow threatens the stability or security of the DNS. David d At 04:18 PM 11/23/2015, Burr, Becky wrote: First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANN’s “take it or don’t sign†negotiating ultimatums, this doesn’t fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement. Beyond that, the language of 3.18 in question imposes obligations on registrars – maintain an abuse pooint 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. The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ appropriate response†is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz ] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.†A "Registered Name" refers to a domain name within the domain of a gTLD…about which a <gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.†To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith†as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.†Becky J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932<tel:%2B1.202.533.2932> Mobile:+1.202.352.6367<tel:%2B1.202.352.6367> /neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws†, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity†via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect†regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com ] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RA RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “i€œindirect†use of the domain cannot also be attriibuted to infringing uses on the website to which the domain points.  If that’s not at least an “ind¬Å“indirect†use, I don’t know what is.   ‚  While I agree with your conclusion, I don’t agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. br> Bradley From: David Post [ <mailto:david.g.post@gmail.com> mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâ€â„„¢s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. sp; Milton’s position that an en existinting pr provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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We seem to be doing may things at the moment at the 12th hour so I don’t think there is any grounds for objection on that point just from my own perspective. I ike Davids language, I think its an attempt to find a compromise, is it perfect maybe not but I think its probably the better formulation that we have between the warring camps at this stage. Again I do find myself in some ways agreeing with Greg, regardless of what side someone is on on this argument I think the thing we can come to agreement on is that we are being forced into rushing changes wit huge implications. And that I don’t like and think is absolutely terrible practise in a process as critical as this. -jg From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Tuesday 24 November 2015 at 5:59 a.m. To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement i object to this newly-proposed language. This is truly being proposed at the 12th hour, as we already have our Third Draft in front of us for review. Second, it is an entirely new formulation of alleged boundaries around ICANN's mission. It bears no resemblance to any prior generally accepted, or even generally considered formulation of ICANN's mission. Instead, it is based on a novel theory of what falls inside and outside of ICANN's mission, or more accurately, what the author wishes fell inside or outside of ICANN's mission. This might be appropriate or interesting in a theoretical paper or a think-tank document, but now is not the time to try and bake theories about the underpinnings of ICANN's mission into the Bylaws. On substance, this proposal raises a host of problems. The concept of a "domain causing harm to third parties" is at best a crude and off-target representation of an idea -- what constitutes "harm"? How does that relate to any current or future policy relating to domain disputes, none of which talk about harm as such? There's really no time to consider the issues in depth without sacrificing the ability to review the draft of our Third Draft Report, which cannot be a sacrifice any of us should be asked to make. Even if we did not have the draft in front of us, the time left to consider this is completely inadequate. The example given also has some dangerous infirmities, but I've run out of time to talk about them since our call's about to start. Greg On Mon, Nov 23, 2015 at 6:25 PM, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> wrote: Here's my crack at the restrictive language that should be included. I tried to leave the the statement in the current draft as is, but made several additions to it that hopefully cover the things some of us are very concerned about. The language below is all from the latest draft, except for the added language IN ALL CAPS: *************** The Mission of The Internet Corporation for Assigned Names and Numbers is to ensure the stable and secure operation of the Internet's unique identifier systems as described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies: For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the Domain Name System; That are developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. . . . ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. ICANN shall not (a) impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internet’s unique identifiers, or the content that such services carry or provide, OR (B) IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION IS CAUSING HARM TO THIRD PARTIES OR (2) THE CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM. lCANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties IN SERVICE OF its Mission. ************************ The language added above attempts to rein in ICANN's ability to "regulate" things other than the registration and allocation of names. So, for instance, insofar as a TLD has been designated to have a particular meaning (to imply certain characteristics of those who register in that domain - e.g. *.pharmacy or *.bank ), ICANN can legitimately impose contractual conditions on registrants to satisfy those characteristics, because otherwise the registration of the name is misleading and can potentially cause harm. At the same time (to use Bruce's earlier example) ICANN cannot impose contractual conditions/obligations on whomever has registered computer.expert (or davidpost.org<http://davidpost.org>) regarding the use of Apple's trademarks, because in that case, while there might well be harm (to Apple), the harm does not flow from the registration of the domains computer.expert or davidpost.org<http://davidpost.org>, nor is it the kind of harm that somehow threatens the stability or security of the DNS. David d At 04:18 PM 11/23/2015, Burr, Becky wrote: First, I believe that Registrars agreed to this provision in the course of negotiations. While I would like a mechanism for contracted parties to challenge ICANN’s “take it or don’t sign†negotiating ultimatums, this doesn’t fall into that bucket as far as I am concerned. And I agree with the general principle that contracts should be enforceable by the parties to the agreement. Beyond that, the language of 3.18 in question imposes obligations on registrars – maintain an abuse pooint 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. The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ appropriate response†is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367>/ neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 2:37 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Thanks Becky, The question is not whether ICANN’s authority to enforce policies regarding resolutions of domain name disputes can be stretched to websites, the question is whether under the RAA, ICANN can validly require registrars to maintain an abuse contact and take certain steps in response to reports of Illegal Activity – which is defined to include conduct involving use of a Registered Name. Putting aside the issue of defamation and infringement etc, let’s assume for a moment that the Illegal Activity in question is not inherent in the domain name itself but rather involves the use of the name, either directly or indirectly. And let’s further assume that such use is something that a reasonable person might argue impacts ICANN’s ability to ensure the stable and secure operation of the Internet's unique identifier systems. I had thought that the language we were searching for would permit ICANN to act in those circumstances. Unless you are you taking the position that we know all we need to know today about what those circumstances might be, and whether ICANN’s activity could be impinged by the language we have been discussing, then you must acknowledge that we are doing brain surgery in the dark here by trying to constrain ICANN’s mission with language that has imprecise meaning. Bradley From: Burr, Becky [mailto:Becky.Burr@neustar.biz ] Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.†A "Registered Name" refers to a domain name within the domain of a gTLD…about which a <gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.†To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith†as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.†Becky J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932<tel:%2B1.202.533.2932> Mobile:+1.202.352.6367<tel:%2B1.202.352.6367>/neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> >, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws†, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity†via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect†regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com ] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RA RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “i€œindirect†use of the domain cannot also be attriibuted to infringing uses on the website to which the domain points.  If that’s not at least an “ind¬Å“indirect†use, I don’t know what is.   ‚  While I agree with your conclusion, I don’t agregree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. br> Bradley From: David Post [<mailto:david.g.post@gmail.com>mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâ€â„„¢s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. sp; Milton’s position that an en existinting pr provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had beenn operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its cu current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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Welcome it ICANN Working Groups. el On 2015-11-24 14:38, James Gannon wrote:
We seem to be doing may things at the moment at the 12th hour so I don’t think there is any grounds for objection on that point just from my own perspective. I ike Davids language, I think its an attempt to find a compromise, is it perfect maybe not but I think its probably the better formulation that we have between the warring camps at this stage. Again I do find myself in some ways agreeing with Greg, regardless of what side someone is on on this argument I think the thing we can come to agreement on is that we are being forced into rushing changes wit huge implications. And that I don’t like and think is absolutely terrible practise in a process as critical as this.
-jg [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
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
I agree fully with Becky here. Also agree strongly with David’s quoted remark. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, November 23, 2015 1:38 PM To: Silver, Bradley; David Post Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bradley, 3.7.7.9 speaks about the registration and use of a “Registered Name.” A "Registered Name" refers to a domain name within the domain of a gTLD…about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance.” To me, that refers to registration and use of a string, and not a web site. That is also consistent with the registrar form of the “picket fence," which allows ICANN to unilaterally obligate registrars to comply with policies (a) covering specific topics and (b) developed in accordance with specified procedures designed to ensure that they are supported by consensus. The RAA spec (Section 4 of the 2001 RAA and Spec 4 in the 2013 RAA) covers policies regarding resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names.) So, under the Registrar’s form of picket fence, if ICANN has developed a Consensus Policy that covers resolution of disputes about registrations (e.g., the UDRP, the Rapid Suspension policy, etc.), and that policy takes use into account (I.e, in the case of the UDRP for example, registration of a name “in bad faith” as defined in the UDRP), it is within ICANN’s authority. The question is, could ICANN’s authority to enforce policies regarding resolution of disputes regarding the registration of domain names be stretched to construe use of a web site (as opposed to the string itself) for defamation? I agree with David, I "don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.” Becky 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> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Monday, November 23, 2015 at 11:47 AM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Board comments on the Mission statement There is a difference between ICANN having power to “enforce local laws”, as you put it, and ICANN’s ability to enforce its agreements, which have as a reference point, the conduct of “illegal activity” via an indirect use of a domain name. Let’s be very clear – we are talking about the latter; the question of whether the enforcement of specific provisions on their face, would amount to the kind of regulation you and others would like to see prohibited. There are a number of forms that enforcement could take which don’t make ICANN a proxy for local law enforcement. For example, one manifestation of this concept is in RAA 3.18.1, which talks about the maintenance of an abuse contact for reports of illegal activity, which will trigger an obligation to investigate and respond appropriately. RAA 3.7.7.9 is a logical companion to this provision, since it ensures that registrars are able, in accordance with their own terms of service, to address abuse complaints involving illegal activity, as between them and the registrant involved. We know there is a broader discussion about what that should entail, but I am concerned that the language being proposed to prohibit any “direct or indirect” regulation will be used to argue that these contractual provisions are outside ICANN’s mission on their face. From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 11:22 AM To: Silver, Bradley Cc: Burr, Becky; Alan Greenberg; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: RE: [CCWG-ACCT] Board comments on the Mission statement Well, this is illuminating ... I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators. My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed. David At 10:51 AM 11/23/2015, Silver, Bradley wrote: David, That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct useâ€, but also that the manner in which is indirectly is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence. Bradley From: David Post [ mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. 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> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. 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Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=oykS2Q8NLF_xKkxVSVRyI426vsXT3JE3oEnkpHCKpZs&e=> ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp...> ******************************* ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. 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David, Sorry to turn off your "illumination," but that's not a fair or accurate statement of my concerns or my position. At best, it's an extremist caricature. Nobody here (or anywhere) has advocated having ICANN "set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, [or] a Defamation Dispute Resolution Procedure." Once you set up a strawman like that, it's pretty easy to get agreement that it's beyond ICANN's scope. It's also pretty irrelevant to the actual issues we're discussing. Under 3.18, ICANN is not the "enforcer" or even in the chain of events regarding any particular abuse complaint. Furthermore, it doesn't even have "power over the DNS entries" for second level domains on a granular, case-driven basis, as far as I can see. Right now, there's broad discretion on the part of each registrar as to how it will meet the requirements of 3.18, and if the registrar is dealing with an abuse complaint where that registrar finds that terminating the registration is appropriate, the registrar exercises its "power over the DNS entries." None of this is remotely close to the "power" that is the basis of your email. Since I'm not asserting that ICANN has or should have this power, I can actually agree with your stirring statement. But, as stated before that's pretty irrelevant to the reality we're dealing with, and even to the restrictions you have proposed, which go far beyond what is necessary to prevent ICANN from doing what you've summarized above. However, if all we need to do is prevent the power you've postulated from being exercisable, we may not be so far apart -- we actually be able to come to agreement. Greg On Mon, Nov 23, 2015 at 11:22 AM, David Post <david.g.post@gmail.com> wrote:
Well, this is illuminating ...
I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators.
My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.
David
At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct use†, but also that the manner in which is *indirectly* is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence.Â
Bradley
*From:* David Post [ mailto:david.g.post@gmail.com <david.g.post@gmail.com>] *Sent:* Monday, November 23, 2015 10:37 AM *To:* Burr, Becky *Cc:* Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN̢۪s Mission.
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>
From: Alan Greenberg <alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com>, Greg Shatan < gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu> Cc: Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com
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Hello, It is my hope that we will recognise that this issue does not seem to have a direction yet, and any attempt to include some form of wording into the mission statement may be premature. Considering that this does not have any dependency on the transition (it doesn't necessarily fall within things that MUST be in place before transition), I will suggest that it be noted for continuous discussion in WS2. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 24 Nov 2015 06:00, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
David,
Sorry to turn off your "illumination," but that's not a fair or accurate statement of my concerns or my position. At best, it's an extremist caricature. Nobody here (or anywhere) has advocated having ICANN "set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, [or] a Defamation Dispute Resolution Procedure."
Once you set up a strawman like that, it's pretty easy to get agreement that it's beyond ICANN's scope. It's also pretty irrelevant to the actual issues we're discussing.
Under 3.18, ICANN is not the "enforcer" or even in the chain of events regarding any particular abuse complaint. Furthermore, it doesn't even have "power over the DNS entries" for second level domains on a granular, case-driven basis, as far as I can see. Right now, there's broad discretion on the part of each registrar as to how it will meet the requirements of 3.18, and if the registrar is dealing with an abuse complaint where that registrar finds that terminating the registration is appropriate, the registrar exercises its "power over the DNS entries."
None of this is remotely close to the "power" that is the basis of your email. Since I'm not asserting that ICANN has or should have this power, I can actually agree with your stirring statement. But, as stated before that's pretty irrelevant to the reality we're dealing with, and even to the restrictions you have proposed, which go far beyond what is necessary to prevent ICANN from doing what you've summarized above.
However, if all we need to do is prevent the power you've postulated from being exercisable, we may not be so far apart -- we actually be able to come to agreement.
Greg
On Mon, Nov 23, 2015 at 11:22 AM, David Post <david.g.post@gmail.com> wrote:
Well, this is illuminating ...
I take it that at least you and Greg (and perhaps others) think that it is within ICANN's power to enforce, via its power over the DNS entries, local pornography laws, or consumer protection laws, or defamation laws, or ... on the grounds that registrants have to promise not to infringe any rights of any third parties in any activity they undertake "on the website to which the domain points." So ICANN can set up a Pornography Dispute Resolution Procedure, a Consumer Protection Dispute Resolution Procedure, a Defamation Dispute Resolution Procedure, to enforce these promises that registrants have supposedly made and to take down violators.
My response is: I don't think they have that power at present, I don't think they have had that since the beginning of (ICANN) time, and I sure as heck don't want to them to have it once they are in control of the root and USG oversight is removed.
David
At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
That’s an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its “direct use†, but also that the manner in which is *indirectly* is used. I can’t see how the “indirect†use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If that’s not at least an “indirect†use, I don’t know what is.   While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation†sentence.Â
Bradley
*From:* David Post [ mailto:david.g.post@gmail.com <david.g.post@gmail.com>] *Sent:* Monday, November 23, 2015 10:37 AM *To:* Burr, Becky *Cc:* Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN̢۪s Mission.
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>
From: Alan Greenberg <alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com>, Greg Shatan < gregshatanipc@gmail.com >, "Mueller, Milton L" <milton@gatech.edu> Cc: Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Greg’s resposposponse below. Milton’s position that an en existinting provision of the RAA is out of the scope of ICANNâ€Ã¢Ã¢„¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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On 24/11/2015 05:36, Seun Ojedeji wrote:
It is my hope that we will recognise that this issue does not seem to have a direction yet, and any attempt to include some form of wording into the mission statement may be premature.
Considering that this does not have any dependency on the transition (it doesn't necessarily fall within things that MUST be in place before transition), I will suggest that it be noted for continuous discussion in WS2.
I've no idea why you keep repeating this, when it's been clearly explained that a wide range of stakeholders consider this essential. It's quite possible that there may be enough of them to prevent the chartering organisations from endorsing the report unless it has a satisfactory provision on this subject. You may not yourself consider this an essential item, but then there are things you've said you find crucially important that I do not agree with. We all need to show a little respect for each other's essential requirements if we're to get this proposal over the line. 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
I agree with Malcom. Frankly, Seun, this has been an essential WS1 component for nearly a year. Your efforts to revisit that conclusion at this late juncture are a processs foul. Frankly, if we decide to revisit the essentiality of the mission statement in WS1 there are a lot of items in WS2 that I want to pull back forward ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Tuesday, November 24, 2015 3:39 AM To: Seun Ojedeji <seun.ojedeji@gmail.com>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Board comments on the Mission statement On 24/11/2015 05:36, Seun Ojedeji wrote:
It is my hope that we will recognise that this issue does not seem to have a direction yet, and any attempt to include some form of wording into the mission statement may be premature.
Considering that this does not have any dependency on the transition (it doesn't necessarily fall within things that MUST be in place before transition), I will suggest that it be noted for continuous discussion in WS2.
I've no idea why you keep repeating this, when it's been clearly explained that a wide range of stakeholders consider this essential. It's quite possible that there may be enough of them to prevent the chartering organisations from endorsing the report unless it has a satisfactory provision on this subject. You may not yourself consider this an essential item, but then there are things you've said you find crucially important that I do not agree with. We all need to show a little respect for each other's essential requirements if we're to get this proposal over the line. 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Paul, don't forget he's ALAC. They do that. On 2015-11-24 16:50, Paul Rosenzweig wrote:
I agree with Malcom. Frankly, Seun, this has been an essential WS1 component for nearly a year. Your efforts to revisit that conclusion at this late juncture are a processs foul. Frankly, if we decide to revisit the essentiality of the mission statement in WS1 there are a lot of items in WS2 that I want to pull back forward ...
Paul [...]
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participants (18)
-
Burr, Becky -
Christopher Wilkinson -
David Post -
Dr Eberhard W Lisse -
Drazek, Keith -
Eric Brunner-Williams -
Greg Shatan -
James Gannon -
Jorge.Cancio＠bakom.admin.ch -
Malcolm Hutty -
Metalitz, Steven -
Mueller, Milton L -
Paul Rosenzweig -
Phil Buckingham -
Phil Corwin -
Seun Ojedeji -
Silver, Bradley -
Steve DelBianco