Re: [CCWG-ACCT] Minority statements inclusion in report
The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered." I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process. To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission). I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination." Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name." Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "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 should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety. David At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
FWIW, Robinâs dissent is fully in line with the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --MM
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: accountability-cross-community@icann.org Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
Thanks, Thomas. See below.
Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an âadvisoryâ role to a âdecision makingâ role over fundamental matters at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SOâs) compared to todayâs ICANN governance structure. The degree of governmental empowerment over ICANN resulting from the proposalâs community mechanism is dangerous to the success of the proposalâs political acceptance as well as to its ultimate impact on a free and open Internet.
The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SOâs and ACâs as determined by relative board appointments. Instead, the proposed community mechanism elevates the ACâs relative to the SOâs compared with todayâs balance on ICANN's board of directors, which does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SOâs mandate. The devaluing of the Supporting Organizations in ICANNâs key decisions was a common theme in both previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SOâs in the community mechanism in the 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SOâs and ACâs, and the dangers inherent in changing those roles with a âone size fits allâ approach to critical decision making.
Additionally, I object to the proposed departure from ICANNâs typical 30-day public comment period on the 3rd report for CCWG-Accountability. The 3rd reportâs public comment only allows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts.
Robin Gross
On Nov 29, 2015, at 1:29 PM, Thomas Rickert <<mailto:thomas@rickert.net>thomas@rickert.net> wrote:
Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received.
Best, Thomas
--- <http://rickert.net/>rickert.net
Am 29.11.2015 um 21:37 schrieb Robin Gross <<mailto:robin@ipjustice.org>robin@ipjustice.org>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin
On Nov 11, 2015, at 5:35 PM, Robin Gross <<mailto:robin@ipjustice.org>robin@ipjustice.org> wrote:
Dear Co-Chairs,
Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]?
Thank you, Robin _______________________________________________ Accountability-Cross-Community mailing list
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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 *******************************
Unless you see it from the reverse, ie when a domain name holder has been concicted for such activities, the Registry can delete the domain name. But I agree, this can of worms needs to at least state which law is applicable and then such a clause would also need to apply to ICANN, wouldn't it? el -- Sent from Dr Lisse's iPad mini
On 30 Nov 2015, at 20:32, David Post <david.g.post@gmail.com> wrote:
[...] Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. [...]
First, we discussed this on several calls (3 or 4), including the last. Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward. Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms. As I said on this very topic recently: 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: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Date: Monday, November 30, 2015 at 1:32 PM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" <NCSG-DISCUSS@LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered." I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process. To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission). I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination." Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name." Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "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 should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety. David At 10:53 AM 11/30/2015, Mueller, Milton L wrote: FWIW, Robin’s dissent is fully in line with the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --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 Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Thanks, Thomas. See below. Dissenting Opinion of Member Robin Gross (GNSO-NSCG) The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an “advisory†role to a “decision making†role over fundamental matters at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SO’s) compared to today’s ICANN governance structure. The degree of governmental empowerment over ICANN resulting from the proposal’s community mechanism is dangerous to the success of the proposal’s political acceptance as well as to its ultimate impact on a free and open Internet. The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SO’s and AC’s as determined by relative board appointments. Instead, the proposed community mechanism elevates the AC’s relative to the SO’s compared with today’s balance on ICANN's board of directors, which does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SO’s mandate. The devaluing of the Supporting Organizations in ICANN’s key decisions was a common theme in both previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SO’s in the community mechanism in the 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SO’s and AC’s, and the dangers inherent in changing those roles with a “one size fits all†approach to critical decision making. Additionally, I object to the proposed departure from ICANN’s typical 30-day public comment period on the 3rd report for CCWG-Accountability. The 3rd report’s public comment only allows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts. Robin Gross On Nov 29, 2015, at 1:29 PM, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> wrote: Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received. Best, Thomas --- rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c=...> Am 29.11.2015 um 21:37 schrieb Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin On Nov 11, 2015, at 5:35 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Dear Co-Chairs, Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]? Thank you, Robin _______________________________________________ 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=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=w8r0TA6tpl9LjmcTUgoh7NSkyhj3eOtY3Nw34foQVEI&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=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=w8r0TA6tpl9LjmcTUgoh7NSkyhj3eOtY3Nw34foQVEI&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=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=0qGwhbKJh9T8L3beDE4PvshXMzHx_1tloT2MvDZOse4&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_davidpostmusic&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=hYDJWPBCNABogUXtcc4SWsqKi81ywpWOzmQYdKTOI0M&e=> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25C2-2...> *******************************
Becky, David We did discuss this but there are obviously still loose ends that need to be resolved. You yourself say: 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. MM: To me, this means that we have to find a wording that ensures that attempts by ICANN (or by litigants external to ICANN) to force ICANN to interpret and enforce this 3.18 in a way that extends iits mission outside the boundaries can be stopped. Your current proposal makes it sound like a blanket endorsement of anything 3.18 might be used to do
I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesn’t comport with ICANN’s mission, particularly since we have language that says: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission – i.e. to ensure the stable and secure operation of the Internet's unique identifier systems. Any and all actions taken under Section 3.18 or the RAA do not suddenly become immunized from scrutiny by acknowledging that the RAA is within ICANN’s mission. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, November 30, 2015 2:13 PM To: Burr, Becky; David Post; Accountability Cross Community Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Becky, David We did discuss this but there are obviously still loose ends that need to be resolved. You yourself say: 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. MM: To me, this means that we have to find a wording that ensures that attempts by ICANN (or by litigants external to ICANN) to force ICANN to interpret and enforce this 3.18 in a way that extends iits mission outside the boundaries can be stopped. Your current proposal makes it sound like a blanket endorsement of anything 3.18 might be used to do ================================================================= 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. =================================================================
At 01:55 PM 11/30/2015, Burr, Becky wrote:
First, we discussed this on several calls (3 or 4), including the last. Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward. Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms. As I said on this very topic recently:
Beyond that, the language of 3.18 in question imposes obligations on registrars maintain ann abuse point 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.
But that's the problem, right there. You say that if ICANN "exceeds the scope of its authority" if it "begins to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach." But why is it so obvious that this exceeds the scope of its authority? You will say: because we have said elsewhere that ICANN shall not regulate content, and this regulates content. But it is not far-fetched for someone to suggest that the "grandfathering" language modifies that, and was included precisely to make it clear that enforcing the provisions of existing agreements is WITHIN ICANN's authority. Under existing agreements, Registrars are already obligated to provide "consequences ... including suspension of domain name registrations" for "activities contrary to applicable law." Defamation is an "activity contrary to applicable law." Suspending registrations in response to allegations that an underlying site is defamatory is thus within the scope of (existing) agreements. If those agreements are grandfathered in, it looks to me like we're saying that when ICANN acts as it is authorized to do within the existing agreements, it is acting within the scope of its authority. David
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 30, 2015 at 1:32 PM To: Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" <<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>NCSG-DISCUSS@LISTSERV.SYR.EDU>, Thomas Rickert <<mailto:thomas@rickert.net>thomas@rickert.net>, Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered."
I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process.
To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission).
I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination."
Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name."
Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "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 should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety.
David
At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
FWIW, Robinâs dissent nt is fully in line with the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --MM
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: <mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
Thanks, Thomas. See below.
Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an âadvisoryâ role to a â ââ¬decision makingâ role over fundamental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SOâs) compared to todayâs ICANN goveNN governance structure. The degree of governmental empowerment over ICANN resulting from the proposalâs cs community mechanism is dangerous to the success of the proposalâs political acceptance as well as to its ultultimate impact on a free and open Internet.
The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SOâs and nd ACâs as determined by relative board appointments.ts. Instead, the proposed community mechanism elevates the ACâs relative to the SOâs compared wpared with todayâs balance on ICANN's board of directors,rs, which does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SOâs mandate. The devaluing of tf the Supporting Organizations in ICANNâs key decisiosions was a common theme in both previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SOâs in the community mechanism in the 3r 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SOâs and ACâs, and the dangers angers inherent in changing those roles with a âone sizeze fits allâ approach to critical decision makingg.
Additionally, I object to the proposed departure from ICANNâs typical 30-day publublic comment period on the 3rd report for CCWG-Accountability. The 3rd reportâs public comment only allallows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts.
Robin Gross
On Nov 29, 2015, at 1:29 PM, Thomas Rickert <<mailto:thomas@rickert.net>thomas@rickert.net> wrote:
Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received.
Best, Thomas
Am 29.11.2015 um 21:37 schrieb Robin Gross <<mailto:robin@ipjustice.org>robin@ipjustice.org>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin
On Nov 11, 2015, at 5:35 PM, Robin Gross <<mailto:robin@ipjustice.org>robin@ipjustice.org> wrote:
Dear Co-Chairs,
Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]?
Thank you, Robin _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org
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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 *******************************
No, I’d say that defamation is unlikely to damage the stability or security of the DNS, that regulation varies from jurisdiction to jurisdiction (so coordinated response doesn’t make a lot of sense) and I don’t see anything in the picket fence that covers it. 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 30, 2015 at 5:30 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, "NCSG-DISCUSS-LISTSERV.SYR.EDU" <NCSG-DISCUSS@LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report At 01:55 PM 11/30/2015, Burr, Becky wrote: First, we discussed this on several calls (3 or 4), including the last. Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward. Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms. As I said on this very topic recently: Beyond that, the language of 3.18 in question imposes obligations on registrars – maintain ann 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. But that's the problem, right there. You say that if ICANN "exceeds the scope of its authority" if it "begins to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach." But why is it so obvious that this exceeds the scope of its authority? You will say: because we have said elsewhere that ICANN shall not regulate content, and this regulates content. But it is not far-fetched for someone to suggest that the "grandfathering" language modifies that, and was included precisely to make it clear that enforcing the provisions of existing agreements is WITHIN ICANN's authority. Under existing agreements, Registrars are already obligated to provide "consequences ... including suspension of domain name registrations" for "activities contrary to applicable law." Defamation is an "activity contrary to applicable law." Suspending registrations in response to allegations that an underlying site is defamatory is thus within the scope of (existing) agreements. If those agreements are grandfathered in, it looks to me like we're saying that when ICANN acts as it is authorized to do within the existing agreements, it is acting within the scope of its authority. David 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 30, 2015 at 1:32 PM To: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < NCSG-DISCUSS@LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered." I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process. To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission). I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination." Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name." Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "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 should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety. David At 10:53 AM 11/30/2015, Mueller, Milton L wrote: FWIW, Robin’s dissent nt is fully in line with the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --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 Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Thanks, Thomas. See below. Dissenting Opinion of Member Robin Gross (GNSO-NSCG) The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an “advisory†role to a †“decision making†role over fundamental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SO’s) compared to today’s ICANN goveNN governance structure. The degree of governmental empowerment over ICANN resulting from the proposal’s cs community mechanism is dangerous to the success of the proposal’s political acceptance as well as to its ultultimate impact on a free and open Internet. The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SO’s and nd AC’s as determined by relative board appointments.ts. Instead, the proposed community mechanism elevates the AC’s relative to the SO’s compared wpared with today’s balance on ICANN's board of directors,rs, which does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SO’s mandate. The devaluing of tf the Supporting Organizations in ICANN’s key decisiosions was a common theme in both previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SO’s in the community mechanism in the 3r 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SO’s and AC’s, and the dangers angers inherent in changing those roles with a “one sizeze fits all†approach to critical decision makingg. Additionally, I object to the proposed departure from ICANN’s typical 30-day publublic comment period on the 3rd report for CCWG-Accountability. The 3rd report’s public comment only allallows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts. Robin Gross On Nov 29, 2015, at 1:29 PM, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> wrote: Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received. Best, Thomas --- rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c=...> Am 29.11.2015 um 21:37 schrieb Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin On Nov 11, 2015, at 5:35 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Dear Co-Chairs, Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]? Thank you, Robin _______________________________________________ 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=VWMBIN5HLUqG1C2nSNxSt9fWwzaAiICtdqjlk_xhaJk&s=OKA1NilrKxdHo68I6b_OFhsv5OmBXhxHCYF-jJSa54Q&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=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=VWMBIN5HLUqG1C2nSNxSt9fWwzaAiICtdqjlk_xhaJk&s=OKA1NilrKxdHo68I6b_OFhsv5OmBXhxHCYF-jJSa54Q&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=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=VWMBIN5HLUqG1C2nSNxSt9fWwzaAiICtdqjlk_xhaJk&s=N8W_8y_LQWYX0_75AhDdqKEFU7SOYS0geVr-XVEI4e8&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_davidpostmusic&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=VWMBIN5HLUqG1C2nSNxSt9fWwzaAiICtdqjlk_xhaJk&s=6toBp50zMyAtBB4ba0wsTATsAOxXPO6t1prQd-cpaCE&e=> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25C2-2...> ******************************* ******************************* 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=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=VWMBIN5HLUqG1C2nSNxSt9fWwzaAiICtdqjlk_xhaJk&s=N8W_8y_LQWYX0_75AhDdqKEFU7SOYS0geVr-XVEI4e8&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-25C2-2...> *******************************
participants (5)
-
Burr, Becky -
David Post -
Dr Eberhard W Lisse -
Mueller, Milton L -
Silver, Bradley