Re: [CCWG-ACCT] Minority statements inclusion in report
At 06:03 PM 11/30/2015, Silver, Bradley wrote:
David,
I am having some trouble understanding your examples below. Is your concern with the grandfathering of the RAA that it would give ICANN total freedom in deciding how to respond to enforcing provisions like 3.18 even such enforcement was clearly not consistent with its stated mission?
Yes, that is a very, very serious concern. I don't know if I'd say it gives ICANN "total freedom", but close to it. If we're grandfathering in the agreements, then ICANN's actions to enforce the terms of the agreements could be seen as having been "grandfathered in" as well, and - as Becky's defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission.
Or do you believe that to the extent any enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates âcontentâ would take such a provision outside the mission?  If itâs the latter, then it appears you are attempting to achieve a retrospective amendment of the RA and RAA by redeffining âillegal activityâ or âactivity contrary to applicable lawâ to specifically exclude any activity which relates to the content associated with the Registered Name.  Â
Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 touch on illegal activity that implicates content is outside the mission. The Proposal clearly says: "ICANNs Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to content, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in. It's funny, because a few hours ago you wrote:
BS: I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesnt comport with ICANNâs mission, particularly since we have language that says: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission
You couldn't imagine doing that - but that's exactly what you're now, no? You seem to be saying that ICANN may, through provisions like 3.18, deprive name holders of their registered names if their illegal activity implicates content - even though we have language that says, clearly (I thought), that ICANN may not regulate content. This is precisely what I am concerned with, and what I would hope we're all concerned with: Using the existence of the (grandfathered) RA/RAA to allow ICANN to regulate content. You are convincing me that this is what you intend with the "grandfather" language. If I'm wrong about that, I'd be interested to know how I'm wrong and, as I asked earlier, what you think the "grandfather" language accomplishes. I don't think I'm proposing a "retrospective amendment" of the RA and the RAA - more like a belated overturning of an abuse of ICANN's monopoly power. I believe we need to insist on a Mission Statement that would negate any use of ICANN's monopoly power to impose an obligation on registrars to revoke domains based on allegations of illegal content. Far from persuading me that my reading of the grandfather in" language is "absurd," you are persuading me that it is precisely what you (ad perhaps others) have in mind - which illustrates the need for clarification. David
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Monday, November 30, 2015 5:30 PM To: Burr, Becky Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert; Accountability Cross Community 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, invesstigate allegations regarding illegal activities, take appropriate action, so I donât think that amounounts to regulating registrants. I also agree that there are situations in which illegal activity could impact the stability and security of the Internetâââ¢s unique identifiers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANNââ¢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 â approropriate 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 uniqueque 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 th 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 fundamentaental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SOâs) compared to todaodayâs ICANN goveNN governance structure. p; The degree of governmental empowerment over ICANN resulting from the proposalâs cs community mechanhanism is dangerous to the success of the proposalâ¬s political acceptance as well as to its ultultimatte 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 SOââ¢s and nd ACâs as determined by relative boardard appointments.ts. Instead, the proposed community mechanism elevates the ACâs relative to thethe SOâs compared wpared with todayâs b¬â¢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 SOâs mandate. The devaluing of tf tf the Supporting Organizations in ICANNâs key dy 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 communitnity mechanism in the 3r 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SOââ¢s and ACâs, and the dangers angers inherent it in changing those roles with a âone sizeze fitsts allâ approach to critical decision makingg.
Additionally, I object to the proposed departure from ICANNâs typical 30-day pubpublublic comment period on the 3rd report for CCWG-Accountability. The 3rd reportâs public commomment 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community
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On 11/30/15 4:04 PM, David Post wrote:
more like a belated overturning of an abuse of ICANN's monopoly power.
Which contract(s) would you like unilaterally modified to reflect this "belated overturning of ..."? Eric Brunner-Williams Eugene, Oregon
On Mon, Nov 30, 2015 at 07:04:22PM -0500, David Post wrote:
defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission.
Surely, if ICANN takes such an action, the other accountability mechanisms that are simultaneously being created can be used to prevent such abuses? Indeed, isn't that the very point of these manifold changes? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
On 2015-12-01 00:55, Andrew Sullivan wrote:
On Mon, Nov 30, 2015 at 07:04:22PM -0500, David Post wrote:
defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission.
Surely, if ICANN takes such an action, the other accountability mechanisms that are simultaneously being created can be used to prevent such abuses? Indeed, isn't that the very point of these manifold changes?
What "other powers"? With respect, I don't think anyone could seriously think that the power to sack the Board or remove directors is remotely effective as a means of addressing the concerns in this debate, whether your concern is ICANN's overreach (as David would have it) or ICANN's failure to act (closer to Bradley's concern). Whatever be the purpose of these community powers, I don't think it can be this. The means the CCWG has constructed for addressing these issues lie in the other half of the report: the value of the Mission as guidance to the Board, the Reconsideration process, and the IRP. But they are all three entirely predicated on getting the Mission text right: unless the Mission text accurately reflects what we want ICANN to do, mere mechanisms for ensuring that ICANN honours its Mission will not help. So while I am about to argue that David's fears are misplaced, and that the Mission text does do what we need it to, he is surely right to focus on the vital necessity of getting that text right, rather than relying on some other part of the report to save us. -- 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 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
On Tue, Dec 01, 2015 at 01:50:05AM +0000, Malcolm Hutty wrote:
With respect, I don't think anyone could seriously think that the power to sack the Board or remove directors is remotely effective as a means of addressing the concerns in this debate, whether your concern is ICANN's overreach (as David would have it) or ICANN's failure to act (closer to Bradley's concern). Whatever be the purpose of these community powers, I don't think it can be this.
Why not? As nearly as I can tell, what we are talking about is a case where ICANN the corporation interprets the mission in ways quite far out of line with what the community thinks is appropriate (and also, I think it should be noted, quite far out of line with what the current board seems to think is ICANN's mission. For instance, several board members have talked about how ICANN doesn't regulate content on various occasions). If we have a problem where the community agrees that the board is permitting the corporation to act inconsistently with the community's understanding of the mission, surely the community should be able to force the board to change its behaviour. This would seem to me to be precisely the point of such community powers. Or, let's suppose that an IRP decides, in the teeth of the plain English meaning of the text, that in fact the mission does permit ICANN to regulate content beyond whatever capability it has today by dint of the agreements that are in place. This doesn't seem impossible, if only on the basis of history of technical decisions by eminent jurists to date. Surely, ICANN would want to update its bylaws to make perfectly plain that such regulation is not in its capabilities. If nobody on the board were willing to put forward such an alteration, it seems to me entirely appropriate for the community to find someone who will and to remove enough of the board to get the necessary actions moving along. It's _exactly_ what the powers are for, isn't it?
the Reconsideration process, and the IRP. But they are all three entirely predicated on getting the Mission text right: unless the Mission text accurately reflects what we want ICANN to do, mere mechanisms for ensuring that ICANN honours its Mission will not help.
I've seen no reasonable argument of any sort that the guidance to bylaw drafters is wrong. It says that the mission is limited in the ways we've already agreed, but that those limitations cannot overturn such agreements as ICANN already has in place. The arguments I've seen on this list have been all of the sort, "What if someone ignores this part, and just concentrates on that part?" In other words, the arguments are all of the form, "What if someone interprets this incorrectly?" And I say that, if someone is insisting on interpreting a bit of text out of line with the community's interpretation, there's still a mechanism to defend against that, and it's the recall procedures. It is not possible to "get the Mission text right" if the requirement is that nobody could possibly misunderstand it, if only because humans are ingenious at ignoring inconvenient text whenever that turns out to be convenient. So what we must do is get the text right enough so that anyone properly disinterested will interpret it correctly; and ensure the community has enough power to that, if interested parties get their hands on the levers, those hands can be pulled back. I think the draft text we have accomplishes both of these goals. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
I see it the same way as Andrew- the test (on whether "we got it right") on the text will come when some action is challenged and the IRP has to interpret it. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Tuesday, December 1, 2015 9:38 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Minority statements inclusion in report On Tue, Dec 01, 2015 at 01:50:05AM +0000, Malcolm Hutty wrote:
With respect, I don't think anyone could seriously think that the power to sack the Board or remove directors is remotely effective as a means of addressing the concerns in this debate, whether your concern is ICANN's overreach (as David would have it) or ICANN's failure to act (closer to Bradley's concern). Whatever be the purpose of these community powers, I don't think it can be this.
Why not? As nearly as I can tell, what we are talking about is a case where ICANN the corporation interprets the mission in ways quite far out of line with what the community thinks is appropriate (and also, I think it should be noted, quite far out of line with what the current board seems to think is ICANN's mission. For instance, several board members have talked about how ICANN doesn't regulate content on various occasions). If we have a problem where the community agrees that the board is permitting the corporation to act inconsistently with the community's understanding of the mission, surely the community should be able to force the board to change its behaviour. This would seem to me to be precisely the point of such community powers. Or, let's suppose that an IRP decides, in the teeth of the plain English meaning of the text, that in fact the mission does permit ICANN to regulate content beyond whatever capability it has today by dint of the agreements that are in place. This doesn't seem impossible, if only on the basis of history of technical decisions by eminent jurists to date. Surely, ICANN would want to update its bylaws to make perfectly plain that such regulation is not in its capabilities. If nobody on the board were willing to put forward such an alteration, it seems to me entirely appropriate for the community to find someone who will and to remove enough of the board to get the necessary actions moving along. It's _exactly_ what the powers are for, isn't it?
the Reconsideration process, and the IRP. But they are all three entirely predicated on getting the Mission text right: unless the Mission text accurately reflects what we want ICANN to do, mere mechanisms for ensuring that ICANN honours its Mission will not help.
I've seen no reasonable argument of any sort that the guidance to bylaw drafters is wrong. It says that the mission is limited in the ways we've already agreed, but that those limitations cannot overturn such agreements as ICANN already has in place. The arguments I've seen on this list have been all of the sort, "What if someone ignores this part, and just concentrates on that part?" In other words, the arguments are all of the form, "What if someone interprets this incorrectly?" And I say that, if someone is insisting on interpreting a bit of text out of line with the community's interpretation, there's still a mechanism to defend against that, and it's the recall procedures. It is not possible to "get the Mission text right" if the requirement is that nobody could possibly misunderstand it, if only because humans are ingenious at ignoring inconvenient text whenever that turns out to be convenient. So what we must do is get the text right enough so that anyone properly disinterested will interpret it correctly; and ensure the community has enough power to that, if interested parties get their hands on the levers, those hands can be pulled back. I think the draft text we have accomplishes both of these goals. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Tue, Dec 01, 2015 at 01:50:05AM +0000, I wrote:
With respect, I don't think anyone could seriously think that the power to sack the Board or remove directors is remotely effective as a means of addressing the concerns in this debate, whether your concern is ICANN's overreach (as David would have it) or ICANN's failure to act (closer to Bradley's concern). Whatever be the purpose of these community powers, I don't think it can be this.
To which Andrew Sullivan replied:
Why not? [snip] If we have a problem where the community agrees that the board is permitting the corporation to act inconsistently with the community's understanding of the mission, surely the community should be able to force the board to change its behaviour. This would seem to me to be precisely the point of such community powers.
I agree entirely. I didn't mean to suggest that the community powers should not be usable (or that they should not be used) in response to such a scenario. I merely meant that relying on them as the sole means of recourse would be untenable. The possibility of direct individual challenge under the IRP is also essential if ICANN is effectively to be held to account.
The arguments I've seen on this list have been all of the sort, "What if someone ignores this part, and just concentrates on that part?" In other words, the arguments are all of the form, "What if someone interprets this incorrectly?"
I must say, I have found myself thinking the same thing, not only now but also when we went round and round talking about "services".
It is not possible to "get the Mission text right" if the requirement is that nobody could possibly misunderstand it, if only because humans are ingenious at ignoring inconvenient text whenever that turns out to be convenient. So what we must do is get the text right enough so that anyone properly disinterested will interpret it correctly; and ensure the community has enough power to that, if interested parties get their hands on the levers, those hands can be pulled back. I think the draft text we have accomplishes both of these goals.
Again, I agree. Perhaps I am being too penickety in reply to your posts; we are in near complete agreement I think. -- 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
-----Original Message-----
Why not? As nearly as I can tell, what we are talking about is a case where ICANN the corporation interprets the mission in ways quite far out of line with what the community thinks is appropriate (and also, I think it should be
Andrew: if this argument is taken to its logical conclusion it means that we don't need a mission limitation at all. We can always just rely on removing the board to prevent ICANN from doing anything wrong. Obviously that doesn't work. What you don't seem to understand is that in most, possibly all, cases, ICANN will stray from its mission not because of its board but because some stakeholder faction wants them to. That stakeholder faction might be large enough to prevent a sacking of the board. It might even be a temporary majority. The point of having mission limitations is precisely this: to prevent capture by a long term or temporary majority that can expand the mission. The limitation we are proposing is analogous to a constitutional limitation enforced by a court, capable of overriding actions by the executive or legislative branches _regardless of how popular those actions are_. Imagine where the state of freedom of expression would be if the U.S. did not have its first amendment or Europe its convention on fundamental rights. Rights violations occur often when majorities want to violate rights to address what they see at the time as a pressing problem. To say "oh, you can replace the executive and legislature when they violate rights" is missing the point about constitutional limitations. Hope you understand this issue better now. I know it's more of a legal/political/policy distinction --MM
Hear hear! And this is why the proposed qualification that removes any obligation to do anything if it violates fundamental rights is unacceptable no matter how matter former ICANN CEOs line up to push it. On 12/01/2015 05:07 PM, Mueller, Milton L wrote:
The limitation we are proposing is analogous to a constitutional limitation enforced by a court, capable of overriding actions by the executive or legislative branches _regardless of how popular those actions are_. Imagine where the state of freedom of expression would be if the U.S. did not have its first amendment or Europe its convention on fundamental rights. Rights violations occur often when majorities want to violate rights to address what they see at the time as a pressing problem. To say "oh, you can replace the executive and legislature when they violate rights" is missing the point about constitutional limitations.
On Tue, Dec 01, 2015 at 05:07:46PM +0000, Mueller, Milton L wrote:
Andrew: if this argument is taken to its logical conclusion it means that we don't need a mission limitation at all.
In principle, of course, one could indeed use only one mechanism to prevent all abuses. But we don't do that because it's better to try to cut things off as early as possible. The existing text does do that, and all the hypothetical scenarios so far proposed are cases where someone decides on purpose to try to misinterpret the plain English meaning of what we've intended. (It's of course possible that when the actual bylaw text is written, something will be missing. I was assuming we were relying on ourselves to make sure that didn't happen.)
What you don't seem to understand is that in most, possibly all, cases, ICANN will stray from its mission not because of its board but because some stakeholder faction wants them to.
I understand that perfectly well.
That stakeholder faction might be large enough to prevent a sacking of the board. It might even be a temporary majority. The point of having mission limitations is precisely this: to prevent capture by a long term or temporary majority that can expand the mission.
Yes, I agree, this is a risk. I don't see how you make something that is entirely resistant to this. For instance, since we're talking about hypothetical scenarios without any details, I can imagine a case where a large enough majority shows up and can overturn this fundamental bylaw too.
Rights violations occur often when majorities want to violate rights to address what they see at the time as a pressing problem.
Yes. Like in all the "five eyes" countries today, every one of which had laws on the books prohibiting the very actions the various governments took. It is the vigilence of the community and its willingness to insist on good behaviour that will protect us, not perfect rules. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
On 2015-12-01 00:04, David Post wrote:
At 06:03 PM 11/30/2015, Silver, Bradley wrote:
David,
I am having some trouble understanding your examples below. Is your concern with the grandfathering of the RAA that it would give ICANN total freedom in deciding how to respond to enforcing provisions like 3.18 – even such enforcement was clearly not consistent with its stated mission?
Yes, that is a very, very serious concern.
This concern I think we can deal with. My understanding was that the agreed text text was intended to prevent ICANN having such unfettered freedom. If your concern, David, is that it might be unsuccessful in that attempt, then let's just agree that the attorneys must ensure that it avoids any possibility of that outcome. Since we are not discussing the final bylaws, but only text that is intended to brief the lawyers, and that the text written by the lawyers will come back to the CCWG for final review, this remains within our power.
Or do you believe that to the extent ANY enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates “content†would take such a provision outside the mission?  If it’s the latter, then it appears you are attempting to achieve a retrospective amendment of the RA and RAA – by redeffining “illegal activity†or “activity contrary to applicable law†to specifically exclude any activity which relates to the content associated with the Registered Name.  Â
Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 _touch on illegal activity that implicates content_ is outside the mission. The Proposal clearly says: "ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to _content_, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in.
I am afraid I must disagree with you here, David. Merely "touching upon" content is not, in my view, sufficient to place something outside the scope of ICANN's Mission and it wasn't my intent, in supporting this text, to make it so. I certainly wish to prevent ICANN using its authority over domain names as leverage to enable it to engage in activity whose *purpose* is the regulation of content, even if the *means* is limited to regulating domain names. But if the true purpose is an entirely proper regulation of domain names, then merely "touching upon" content is not sufficient, in my view, to prevent ICANN from that goal. Perhaps curiously, I can't think of any better example example to illustrate this distinction than the discussion we recently had about the UDRP: in the UDRP, the purpose is to determine whether someone has registered a domain to which they have no right (or rather, in which someone else's rights in that domain preempt and preclude them from registering it). So long as the focus is on answering that question, content on services addressed using that domain is perfectly admissible and relevant evidence. Selling widgets marked with a counterfeit "Banana" trademark on www.banana.com is perfectly good evidence that your registration of banana.com was intended as a misuse of Banana Corp's trademark and not as a legitimate, lawful use of the string banana to market fruit. On the other hand, content is only evidence in that question: illegitimate content cannot of itself give rise to a right to a third party to supercede the registrant's rights in the domain under the UDRP, even if it does give rise to remedies against the registrant under local law. I really do think the respective sides to this debate need to accept the long-established boundaries to ICANN's role, even if neither are terribly happy about them. ICANN WILL regulate domain names per se, and its enforcement mechanisms will make use of relevant evidence to that effect; so sorry, dear friends in the civil society community, but this is settled. On the other hand, ICANN CANNOT be authorised to regulate the entire Internet, using the threat of domain suspension as a cure-all for every supposed evil that people do online: we are simply not willing to give ICANN such power; that must be reserved for governments acting within their own jurisdictions (and not collectively, through GAC). This is the balance. This is the compromise. On this compromise rests not only support for transition, but support for ICANN itself, and for the multi-stakeholder model more generally. If ICANN is not able to regulate the sphere placed within its responsibility, support for ICANN as an effective means for discharging that responsibility will evaporate, first within the IPR lobby, then governments, and gradually more generally. But equally, if ICANN overreaches, and uses its power to implement more general regulation of what occurs online, then support will evaporate just as fast: first with civil society, then with other Internet intermediaries like ISPs, and remarkably rapidly with governments too (when that power is used for a purpose contrary to their own local policy, as must be inevitable), and then at last with the whole community. Our job here is to preserve that balance, not to upset it; to ensure that the enforceable rules we write to uphold that balance are durable, and will ensure that the line is respected, not just today, but in the face of challenges to come. I believe our Third Draft Report successfully preserves that balance and, crucially, provides the means to ensure that the same balance survives in the post-transition environment. Our lawyers must now implement these measures, and we must then check that they have done so. Kind Regards, 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 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Malcolm I do appreciate the need for compromise, as you put it below, and I also appreciate your thoughtful attempt to allay my fears about the new language concerning the existing agreements. I also accept that we should "accept the long-established boundaries to ICANN's role," and that "ICANN WILL regulate domain names per se, and its enforcement mechanisms will make use of relevant evidence to that effect ..." That's fine. But ICANN has itself transgressed those boundaries in the past, and I think it is a mistake not to do all that we can to identify where it has done so, so that we can make sure they don't do it again in the future. I am very nervous about "grandfathering in" those transgressions, in a manner that could enable someone (like an IRP judge) to say that we have somehow ratified them and deemed them to be appropriate exercises of ICANN's power. In my opinion, Spec. 11 and the mandatory PICs represent a rather flagrant example of that. The terms of Spec. 11 were introduced into the new gTLD Registry Agreements without any pretense that they had been the product of consensus policy-making, and I don't believe the requirement that registrars must promise (or risk losing their accreditation) provide for an "appropriate response" and for "consequences including the suspension of domain name registrations" for registrants who act in a manner "contrary to applicable law" is within the "long-established boundaries" around what ICANN can do or not do. So I'm just trying to be sure that the new language regarding the existing agreements won't be understood in the future (and is not intended to be understood) as somehow ratifying that kind of activity on ICANN's part, that it implies somehow that everything that ICANN did in regard to those agreements is an appropriate exercise of ICANN's power. You (and others) have said that it doesn't imply that. You've told us what you think it doesn't mean.
-- it doesn't give ICANN unfettered freedom in deciding how to respond in enforcing provisions like 3.18
-- 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.
-- 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,
That all sounds fine to me. But (a) that doesn't jump out me from the language itself (though as you suggest, we can wait and see how the lawyers sort it out). More importantly, if that's what "grandfathering the existing agreements" doesn't mean, what does it mean? What is it accomplishing? What is its point? If my interpretation is wrong (as everyone is reassuring me it is), what is the correct interpretation? If it's meant to expand the scope of the Mission in some way, in what way? If it's not meant to expand the scope of the Mission, why is it in there? I respectfully suggest this is not something we can just leave to the lawyers to see what they come up with. I do think we need to tell them what we think it means so that they can address it appropriately. David David At 08:50 PM 11/30/2015, Malcolm Hutty wrote:
BS Or do you believe that to the extent ANY enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates âcontentâ would take such a provisioision outside the mission?à à If itâs the latter, then en it appears you are attempting to achieve a retrospective amendment of the RA and RAA by redeffining âillegal activityââyâ⬠or âactivity contrary to applicable lawâ to specifically exclude any activity which relates to the content associated with the Registered Name. à Ã
DP Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 _touch on illegal activity that implicates content_ is outside the mission. The Proposal clearly says: "ICANNâs Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to _content_, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in.
MH I am afraid I must disagree with you here, David.
Merely "touching upon" content is not, in my view, sufficient to place something outside the scope of ICANN's Mission and it wasn't my intent, in supporting this text, to make it so.
I certainly wish to prevent ICANN using its authority over domain names as leverage to enable it to engage in activity whose *purpose* is the regulation of content, even if the *means* is limited to regulating domain names. But if the true purpose is an entirely proper regulation of domain names, then merely "touching upon" content is not sufficient, in my view, to prevent ICANN from that goal.
Perhaps curiously, I can't think of any better example example to illustrate this distinction than the discussion we recently had about the UDRP: in the UDRP, the purpose is to determine whether someone has registered a domain to which they have no right (or rather, in which someone else's rights in that domain preempt and preclude them from registering it). So long as the focus is on answering that question, content on services addressed using that domain is perfectly admissible and relevant evidence. Selling widgets marked with a counterfeit "Banana" trademark on www.banana.com is perfectly good evidence that your registration of banana.com was intended as a misuse of Banana Corp's trademark and not as a legitimate, lawful use of the string banana to market fruit. On the other hand, content is only evidence in that question: illegitimate content cannot of itself give rise to a right to a third party to supercede the registrant's rights in the domain under the UDRP, even if it does give rise to remedies against the registrant under local law.
I really do think the respective sides to this debate need to accept the long-established boundaries to ICANN's role, even if neither are terribly happy about them. ICANN WILL regulate domain names per se, and its enforcement mechanisms will make use of relevant evidence to that effect; so sorry, dear friends in the civil society community, but this is settled. On the other hand, ICANN CANNOT be authorised to regulate the entire Internet, using the threat of domain suspension as a cure-all for every supposed evil that people do online: we are simply not willing to give ICANN such power; that must be reserved for governments acting within their own jurisdictions (and not collectively, through GAC).
This is the balance. This is the compromise. On this compromise rests not only support for transition, but support for ICANN itself, and for the multi-stakeholder model more generally. If ICANN is not able to regulate the sphere placed within its responsibility, support for ICANN as an effective means for discharging that responsibility will evaporate, first within the IPR lobby, then governments, and gradually more generally. But equally, if ICANN overreaches, and uses its power to implement more general regulation of what occurs online, then support will evaporate just as fast: first with civil society, then with other Internet intermediaries like ISPs, and remarkably rapidly with governments too (when that power is used for a purpose contrary to their own local policy, as must be inevitable), and then at last with the whole community.
Our job here is to preserve that balance, not to upset it; to ensure that the enforceable rules we write to uphold that balance are durable, and will ensure that the line is respected, not just today, but in the face of challenges to come.
I believe our Third Draft Report successfully preserves that balance and, crucially, provides the means to ensure that the same balance survives in the post-transition environment. Our lawyers must now implement these measures, and we must then check that they have done so.
Kind Regards,
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 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
******************************* 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 *******************************
Am I the only one that has some difficulties is understanding the gap between the original content of this thread (in line with the title) and the content of the last 20 or so submissions? Best, Roelof From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Date: dinsdag 1 december 2015 15:17 To: Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Malcolm I do appreciate the need for compromise, as you put it below, and I also appreciate your thoughtful attempt to allay my fears about the new language concerning the existing agreements. I also accept that we should "accept the long-established boundaries to ICANN's role," and that "ICANN WILL regulate domain names per se, and its enforcement mechanisms will make use of relevant evidence to that effect ..." That's fine. But ICANN has itself transgressed those boundaries in the past, and I think it is a mistake not to do all that we can to identify where it has done so, so that we can make sure they don't do it again in the future. I am very nervous about "grandfathering in" those transgressions, in a manner that could enable someone (like an IRP judge) to say that we have somehow ratified them and deemed them to be appropriate exercises of ICANN's power. In my opinion, Spec. 11 and the mandatory PICs represent a rather flagrant example of that. The terms of Spec. 11 were introduced into the new gTLD Registry Agreements without any pretense that they had been the product of consensus policy-making, and I don't believe the requirement that registrars must promise (or risk losing their accreditation) provide for an "appropriate response" and for "consequences including the suspension of domain name registrations" for registrants who act in a manner "contrary to applicable law" is within the "long-established boundaries" around what ICANN can do or not do. So I'm just trying to be sure that the new language regarding the existing agreements won't be understood in the future (and is not intended to be understood) as somehow ratifying that kind of activity on ICANN's part, that it implies somehow that everything that ICANN did in regard to those agreements is an appropriate exercise of ICANN's power. You (and others) have said that it doesn't imply that. You've told us what you think it doesn't mean. -- it doesn't give ICANN unfettered freedom in deciding how to respond in enforcing provisions like 3.18 -- 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. -- 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, That all sounds fine to me. But (a) that doesn't jump out me from the language itself (though as you suggest, we can wait and see how the lawyers sort it out). More importantly, if that's what "grandfathering the existing agreements" doesn't mean, what does it mean? What is it accomplishing? What is its point? If my interpretation is wrong (as everyone is reassuring me it is), what is the correct interpretation? If it's meant to expand the scope of the Mission in some way, in what way? If it's not meant to expand the scope of the Mission, why is it in there? I respectfully suggest this is not something we can just leave to the lawyers to see what they come up with. I do think we need to tell them what we think it means so that they can address it appropriately. David David At 08:50 PM 11/30/2015, Malcolm Hutty wrote: BS Or do you believe that to the extent ANY enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates “content†would take such a provisioision outside the mission?  If it’s the latter, then en it appears you are attempting to achieve a retrospective amendment of the RA and RAA by redeffining “illegal activityâây†or “activity contrary to applicable law†to specifically exclude any activity which relates to the content associated with the Registered Name.   DP Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 _touch on illegal activity that implicates content_ is outside the mission. The Proposal clearly says: "ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to _content_, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in. MH I am afraid I must disagree with you here, David. Merely "touching upon" content is not, in my view, sufficient to place something outside the scope of ICANN's Mission and it wasn't my intent, in supporting this text, to make it so. I certainly wish to prevent ICANN using its authority over domain names as leverage to enable it to engage in activity whose *purpose* is the regulation of content, even if the *means* is limited to regulating domain names. But if the true purpose is an entirely proper regulation of domain names, then merely "touching upon" content is not sufficient, in my view, to prevent ICANN from that goal. Perhaps curiously, I can't think of any better example example to illustrate this distinction than the discussion we recently had about the UDRP: in the UDRP, the purpose is to determine whether someone has registered a domain to which they have no right (or rather, in which someone else's rights in that domain preempt and preclude them from registering it). So long as the focus is on answering that question, content on services addressed using that domain is perfectly admissible and relevant evidence. Selling widgets marked with a counterfeit "Banana" trademark on www.banana.com<http://www.banana.com/> is perfectly good evidence that your registration of banana.com was intended as a misuse of Banana Corp's trademark and not as a legitimate, lawful use of the string banana to market fruit. On the other hand, content is only evidence in that question: illegitimate content cannot of itself give rise to a right to a third party to supercede the registrant's rights in the domain under the UDRP, even if it does give rise to remedies against the registrant under local law. I really do think the respective sides to this debate need to accept the long-established boundaries to ICANN's role, even if neither are terribly happy about them. ICANN WILL regulate domain names per se, and its enforcement mechanisms will make use of relevant evidence to that effect; so sorry, dear friends in the civil society community, but this is settled. On the other hand, ICANN CANNOT be authorised to regulate the entire Internet, using the threat of domain suspension as a cure-all for every supposed evil that people do online: we are simply not willing to give ICANN such power; that must be reserved for governments acting within their own jurisdictions (and not collectively, through GAC). This is the balance. This is the compromise. On this compromise rests not only support for transition, but support for ICANN itself, and for the multi-stakeholder model more generally. If ICANN is not able to regulate the sphere placed within its responsibility, support for ICANN as an effective means for discharging that responsibility will evaporate, first within the IPR lobby, then governments, and gradually more generally. But equally, if ICANN overreaches, and uses its power to implement more general regulation of what occurs online, then support will evaporate just as fast: first with civil society, then with other Internet intermediaries like ISPs, and remarkably rapidly with governments too (when that power is used for a purpose contrary to their own local policy, as must be inevitable), and then at last with the whole community. Our job here is to preserve that balance, not to upset it; to ensure that the enforceable rules we write to uphold that balance are durable, and will ensure that the line is respected, not just today, but in the face of challenges to come. I believe our Third Draft Report successfully preserves that balance and, crucially, provides the means to ensure that the same balance survives in the post-transition environment. Our lawyers must now implement these measures, and we must then check that they have done so. Kind Regards, 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 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA ******************************* 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> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com <http://www.davidpost.com /> *******************************
On 12/01/2015 03:00 PM, Roelof Meijer wrote:
Am I the only one that has some difficulties is understanding the gap between the original content of this thread . . .
Am I the only one that has some difficulties in understanding the gap between :- (a) the original intent of the CCWG (to provide the necessary accountability mechanism that would give all parties the necessary confidence to permit ICANN to have the United States Government devolve its historical authority); and (b) the content of the Draft Proposal (which is to obtain transition at any cost whatsoever, because ICANN simply does not trust a potential future Government of the United States of a different political hue). Nigel
On Tue, Dec 01, 2015 at 09:17:17AM -0500, David Post wrote:
More importantly, if that's what "grandfathering the existing agreements" doesn't mean, what does it mean? What is it accomplishing? What is its point? If my interpretation is wrong (as everyone is reassuring me it is), what is the correct interpretation?
I believe the point of it is to say that, _even if_ the new mission text somehow creates an incompatibility with something ICANN did, that past action cannot be appealed under the new mission text. My memory of how it got added was that during one of the meetings, the possibility that the new text could be used that way was mooted, and nobody wanted that. I think this was captured in the minutes. I think it's correct to say that, whatever consensus we are coming to, it will not do to try to relitigate past decisions (regardless of how we feel about them; for the purposes of this conversation I refuse to have an opinion about whether ICANN should have undertaken every single thing it did in the past). Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Malcolm: Comments inline
-----Original Message----- Since we are not discussing the final bylaws, but only text that is intended to brief the lawyers, and that the text written by the lawyers will come back to the CCWG for final review, this remains within our power.
Then let's propose some additional emendations to do that.
I am afraid I must disagree with you here, David.
Merely "touching upon" content is not, in my view, sufficient to place something outside the scope of ICANN's Mission and it wasn't my intent, in supporting this text, to make it so.
That's not what David said. What he is concerned about is the use of domain names to regulate or control the content of websites, as opposed to the use and registration of the domain name itself. So in your UDRP example, yes, you can look at the content of the website to determine whether the use of the domain is 'passing off' or some other kind of use of the domain name to infringe trademark rights. No, you can't use ICANN to yank the domain because you think the content of the site is illegal or undesirable. (You still can, of course, use standard law enforcement mechanisms to do this. Just not ICANN).
I disagree completely that the grandfathering of the provisions of the RAA and RA would automatically also grandfather any action that ICANN might take to enforce such agreements. ICANN's mission is defined first and foremost in the positive - and the bylaws begin from the proposition that anything ICANN does must be in conformity with that. The existing language says as much. There is a difference between provisions relating to illegal activity, and the regulation of content, but given your motivation to accomplish "a belated overturning of an abuse of ICANN's power", I don't think I can convince you of that distinction. ________________________________________ From: David Post [david.g.post@gmail.com] Sent: Monday, November 30, 2015 7:04 PM To: Silver, Bradley Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report At 06:03 PM 11/30/2015, Silver, Bradley wrote: David, I am having some trouble understanding your examples below.� Is your concern with the grandfathering of the RAA that it would give ICANN total freedom in deciding how to respond to enforcing provisions like 3.18 � even such enforcement was clearly not consistent with its stated mission? Yes, that is a very, very serious concern. I don't know if I'd say it gives ICANN "total freedom", but close to it. If we're grandfathering in the agreements, then ICANN's actions to enforce the terms of the agreements could be seen as having been "grandfathered in" as well, and - as Becky's defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission. Or do you believe that to the extent any enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates “content” would take such a provision outside the mission?� � If it’s the latter, then it appears you are attempting to achieve a retrospective amendment of the RA and RAA � by redeffining “illegal activity” or “activity contrary to applicable law” to specifically exclude any activity which relates to the content associated with the Registered Name. � � Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 touch on illegal activity that implicates content is outside the mission. The Proposal clearly says: "ICANN�s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to content, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in. It's funny, because a few hours ago you wrote: BS: I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesnt 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 You couldn't imagine doing that - but that's exactly what you're now, no? You seem to be saying that ICANN may, through provisions like 3.18, deprive name holders of their registered names if their illegal activity implicates content - even though we have language that says, clearly (I thought), that ICANN may not regulate content. This is precisely what I am concerned with, and what I would hope we're all concerned with: Using the existence of the (grandfathered) RA/RAA to allow ICANN to regulate content. You are convincing me that this is what you intend with the "grandfather" language. If I'm wrong about that, I'd be interested to know how I'm wrong and, as I asked earlier, what you think the "grandfather" language accomplishes. I don't think I'm proposing a "retrospective amendment" of the RA and the RAA - more like a belated overturning of an abuse of ICANN's monopoly power. I believe we need to insist on a Mission Statement that would negate any use of ICANN's monopoly power to impose an obligation on registrars to revoke domains based on allegations of illegal content. Far from persuading me that my reading of the grandfather in" language is "absurd," you are persuading me that it is precisely what you (ad perhaps others) have in mind - which illustrates the need for clarification. David From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Monday, November 30, 2015 5:30 PM To: Burr, Becky Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert; Accountability Cross Community 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, invesstigate allegations regarding illegal activities, take appropriate action, so I donâ��t think that amounounts to regulating registrants. I also agree that there are situations in which illegal activity could impact the stability and security of the Internetâ��™s unique identifiers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANNâ��™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 â�� approropriate 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 / 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 Internetâ��s uniqueque 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, Robinâ��s dissent nt is fully in line with th 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 â��advisoryâ� role to a â� â� ââ�¬�decision makingâ� role over fundamentaental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SOâ��s) compared to todaodayâ��s ICANN goveNN governance structure. p; The degree of governmental empowerment over ICANN resulting from the proposalâ��s cs community mechanhanism is dangerous to the success of the proposalâ���s political acceptance as well as to its ultultimatte 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 SOâ��™s and nd ACâ��s as determined by relative boardard appointments.ts. Instead, the proposed community mechanism elevates the ACâ��s relative to thethe SOâ��s compared wpared with todayâ��s b�™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 SOâ��s mandate. The devaluing of tf tf the Supporting Organizations in ICANNâ��s key dy 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 SOâ��s in the communitnity mechanism in the 3r 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SOâ��™s and ACâ��s, and the dangers angers inherent it in changing those roles with a â��one sizeze fitsts allâ� approach to critical decision makingg. Additionally, I object to the proposed departure from ICANNâ��s typical 30-day pubpublublic comment period on the 3rd report for CCWG-Accountability. The 3rd reportâ��s public commomment 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 _______________________________________________ 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> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com <http://www.davidpost.com %20/> ******************************* ******************************* 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. 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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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participants (9)
-
Andrew Sullivan -
Chartier, Mike S -
David Post -
Eric Brunner-Williams -
Malcolm Hutty -
Mueller, Milton L -
Nigel Roberts -
Roelof Meijer -
Silver, Bradley