At 03:58 PM 12/17/2015, Mueller, Milton L wrote:

[SNIP] More responses to Becky in line below:

BB: While I don't think that ICANN has the authority to demand that the registry operator adopt such a policy, I have no problem whatsoever with ICANN holding the registrant to that policy if it was offered as part of the application. (Others may well disagree with me.)

MM: I do disagree. One problem is that the line between what ICANN demands and what is offered "voluntarily" by the registry is unclear, and easily fudged, given ICANN's monopoly position. For example, suppose someone applied for that TLD and the GAC and ALAC advised that the applicant not be given the domain unless they adopted such a policy. If this would be classified as the registry "voluntarily" adopting the policy (because they will be denied entry if they don't) it is very clearly an example of ICANN using its monopoly control of the root to impose regulation on the users [SNIP]

I agree that the line between "voluntary" provisions and "mandatory" provisions is a difficult one to draw. But I'm not sure that means that it has to be abandoned, or that a well-formed IRP couldn't distinguish between the two. Some policies are imposed on registry operators (and/or on registrars and registrants) by virtue of an ICANN policy - those are relatively easy to characterize as "mandatory." The example you gave is much harder - but it does seem to me that it's not too difficult to characterize that as "mandatory" as well, and that the affected party would and should be able to make the argument you're making (i.e., that is an example of ICANN "using its monopoly control of the root to impose regulation of the users"), and that it would therefore have to be within the Mission to be valid. David ******************************* 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 *******************************