Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Gregâs response below. Miltonâs position that an existing provision of the RAA is out of the scope of ICANNâs mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANNâs mission in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <<mailto:milton@gatech.edu>milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA):
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which
it is directly or indirectly used
infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s response below. Milton’s position that an existing provision of the RAA is out of the scope of ICANN’s mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s mission in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=1w3zN2HLrn_EQJAkaFBYIJStZCjoz2ewsOj4agMV4iI&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=1w3zN2HLrn_EQJAkaFBYIJStZCjoz2ewsOj4agMV4iI&e=>
They turned up. On 23/11/15 15:03, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA:
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Here it is in the 1999 RAA:
7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission.
* *
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367 */**neustar.biz* <http://www.neustar.biz>
From: Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <Bradley.Silver@timewarner.com <mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu <mailto:milton@gatech.edu>> Cc: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Greg’s response below. Milton’s position that an existing provision of the RAA is out of the scope of ICANN’s mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s mission in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
*From:* accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Sunday, November 22, 2015 3:01 AM *To:* Mueller, Milton L *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
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================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
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At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA:
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Here it is in the 1999 RAA:
7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâs Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / <http://www.neustar.biz>neustar.biz
From: Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca> Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com>Bradley.Silver@timewarner.com>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com>, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Gregâs resposponse below. Miltonâs position that an existinting provision of the RAA is out of the scope of ICANNâââ¢s mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANNâs missionion in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <<mailto:milton@gatech.edu>milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA):
3.7.7.9 The Registered Name Holder shall
represent that, to the best of the
Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
_______________________________________________ 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
================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at <mailto:ITServices@timewarner.com>ITServices@timewarner.com
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================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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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, That’s an overly narrow reading of RAA 3.7.7.9 - its not only that the registration of the Registered Name infringes or its “direct use”, but also that the manner in which is indirectly is used. I can’t see how the “indirect” use of the domain cannot also be attributed to infringing uses on the website to which the domain points. If that’s not at least an “indirect” use, I don’t know what is. While I agree with your conclusion, I don’t agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the “no regulation” sentence. Bradley From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner. D At 10:03 AM 11/23/2015, Burr, Becky wrote: Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca> > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> >, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s resposponse below. Milton’s position that an existinting provision of the RAA is out of the scope of ICANNâ€ââ„¢s mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s missionion in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com <http://www.davidpost.com /> ******************************* ================================================================= 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. =================================================================
Clearly, this shows that this is an attempt to rewrite ICANN's mission, rather than an attempt to avoid mission creep. Just like 3.7.7.9 has been with us since the beginning of (ICANN) time, the policy disputes that underlie this attempt have been with us since the beginning of (ICANN) time. The Accountability effort is an inappropriate place to try and score points in these disputes. It's both good and unfortunate that this is becoming clear -- good that it is becoming clear, unfortunate because of the timing. Greg On Mon, Nov 23, 2015 at 10:03 AM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA:
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Here it is in the 1999 RAA:
7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission.
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367 */* *neustar.biz* <http://www.neustar.biz>
From: Alan Greenberg <alan.greenberg@mcgill.ca> Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <Bradley.Silver@timewarner.com>, Greg Shatan < gregshatanipc@gmail.com>, "Mueller, Milton L" <milton@gatech.edu> Cc: Accountability Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Greg’s response below. Milton’s position that an existing provision of the RAA is out of the scope of ICANN’s mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s mission in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Sunday, November 22, 2015 3:01 AM *To:* Mueller, Milton L *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
_______________________________________________ Accountability-Cross-Community mailing list 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_li...>
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================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
Becky After some digging I now view 3.7.7.9 as primarily a way to shield ICANN from liability, which in some ways might actually help it to avoid mission creep (if, e.g., people start suing ICANN to get it to control the actions of people using domains that have nothing to do with DNS governance). However, there may also be a danger that this provision could be used for precisely the opposite purpose. Someone might ask ICANN to take away domains because a domain registrants is “indirectly” using an online service to infringe the legal rights of a third party. So you, Greg, Alan and Bradley tell me: what exactly are the legitimate and necessary activities that ICANN would be prevented from doing if that provision was not in the R.A.A., or if the word “indirectly” was removed? Looking forward to a concrete answer. --MM From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Monday, November 23, 2015 10:04 AM To: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party. As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement I rarely fill people's mailboxes just to do this, but in this case; +1 Alan At 22/11/2015 08:31 PM, Silver, Bradley wrote: I want to echo and support Greg’s response below. Milton’s position that an existing provision of the RAA is out of the scope of ICANN’s mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s mission in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=1w3zN2HLrn_EQJAkaFBYIJStZCjoz2ewsOj4agMV4iI&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=1w3zN2HLrn_EQJAkaFBYIJStZCjoz2ewsOj4agMV4iI&e=>
On 11/23/15 7:03 AM, Burr, Becky wrote:
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANN’s Mission.
The label sequence, aka "the exact string", whether an A record for the NAME was ever published or not. That's my recollection as well. Eric Brunner-Williams Eugene, Oregon
participants (8)
-
Alan Greenberg -
Burr, Becky -
David Post -
Eric Brunner-Williams -
Greg Shatan -
Mueller, Milton L -
Nigel Roberts -
Silver, Bradley